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Lord Bassam of Brighton: I certainly understand the importance and value of transparency. I think that the notion of publishing the outcome of appeals is a very important one. We do not resist the idea at all; we might take issue only with the way in which effect would be given to it. There is a need for flexibility. Because of the way in which the amendment is drafted, we could well end up with a situation where all the tribunal's decisions would be published. I am not sure that that would necessarily be helpful because it is possible to lose things in a fog of information.
Cases where the tribunal reaches a decision about whether a specific purpose is charitable would clearly be in the public interest, and it would be helpful if those decisions were more widely publicised. It would also be helpful if the rationale behind the decision were made public. However, other cases might involve information that was commercially sensitive and it would be potentially damaging to place it in the public domain. It might not be appropriate to publish in full such decisions.
We certainly recognise that it is important for the tribunal to publish its decisions, but we also think that there is a need for some flexibility. As the noble Lord will understand, the Bill makes provision for rules to be established on the recording and promulgation of decisions. As I have already said several times, the consultation on those rules will be important. This is one of the issues on which we will consult.
The amendments are helpful in drawing our attention to the important issues of the tribunal's operation. I hope that, having heard my comments about reflecting that in the rules, noble Lords will feel able not to press their amendments.
Lord Phillips of Sudbury: Perhaps I may ask the Minister a little more about the difficulty he faces. He said that some types of decisions might be a bureaucratic burden without much merit. I can see that there may be such cases. But surely the answer is for the Government to come back and say that they will publish the reasons in the registration cases, and in
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this sort of case and that sort of case, whereas in other cases it will be left to the discretion of the tribunal. This is an important part of the whole functioning of the tribunal. The words "recording and promulgation of decisions" do not go to reasons, but I come back to that. Could the Minister not look at this in a more purposeful way and say, "Yes, we can see that these reasons need to be publicised"?
The Earl of Caithness: I should like to follow up on that argument because my point is related to it. Who will decide whether the decision and the reasons are published, as the noble Lord, Lord Phillips, seeks? Rules will be made, but who will decide? Is it to be the tribunal or another body?
Lord Bassam of Brighton: In answer to the noble Lord, Lord Phillips, it certainly would be possible for the tribunal to give a direction on publication of a decision and the content in general terms of such publication, as well as on the publication of reasons. That will be covered in the rules themselves. It may well be that the tribunal then begins to exercise that more rigorously and thoroughly than perhaps we are envisaging today, but the facility will be available.
I understand the noble Lord's insistence on this point because it is very important. Not that long ago I recall being party to a debate in your Lordships' House in which we discussed the value of ensuring that planning committees produce and publish their reasons for decisions. I see no fundamental difference here, but there needs to be some qualification so that where sensitive commercial information is involved in the decision-making process, it can be protected. I am sure that the noble Lord understands that.
Lord Phillips of Sudbury: I do not want to prolong the debate, but this is an important issue. In response to the noble Lord's comments, it is not enough for the tribunal to be able to decide when it gives reasons; it should be for Parliament to decide. I would not mind particularly if new Section 2B(4)(h) referred to reasons as well as decisions because we could then see in the draft rules exactly what is required and we could argue the issue at that stage. That would ensure that Parliament is given proper oversight.
Lord Bassam of Brighton: I want to reflect further on what the noble Lord has said. While I make no commitment at this point, I want to think about it a little more. However, I ought to make it clear that the tribunal will always give reasons. It is more a question of whether it would be right for those reasons to be published. Nevertheless, the tribunal itself will always have to have reasons for its decisions.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his last intervention because it does address our concerns about leaving this provision too vague. We look forward to hearing about where his further deliberations take him. I hope very much that he will be able to come back with something that will increase certainty by making clearer what we can
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expect from the rules when they are drafted and discussed. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 and 81 not moved.]
Lord Phillips of Sudbury moved Amendment No. 82:
"( ) subject to subsections (5) and (6), specifying that the Commission shall not be entitled to recover costs"
The noble Lord said: In moving Amendment No. 82, I shall speak also to Amendment No. 88. They provide for further insertions in Clause 8, the object of which is to cover the issue of costs. Costs, I am afraid, are much more of an encumbrance to the satisfactory working of charity law than most people realise. They have frozen judicial evolution of the definition of charity. To some extent this Bill will make inroads on the problem in that new Section 2D(4) allows the Attorney-General to intervene in and take over proceedings, but none the less there is a real fear on the part of charities of getting embroiled in matters where costs could run out of control. I do not need to explain that the funding of charities is such that the spare cash available for overheads—non-project finance—is extremely scarce. They are always hunting around for more.
The two amendments before us are designed to improve that. Amendment No. 82 would insert a further subsection to new Section 2B to provide that,
"subject to subsections (5) and (6), specifying that the Commission shall not be entitled to recover costs".
The purpose of Amendment No. 88 may not be obvious to noble Lords. It would give the commission the right to decide in advance that it would not require,
"any charity or trustees of a charity to pay the Commission's costs incurred in connection with any appeal or application for review before the Tribunal".
That is necessary because without it I am not sure that the commission would be at liberty to give an undertaking to a charity that it would not be looking for its costs to be met in the event that it succeeded in the tribunal case rather than the charity itself.
Taken together, these two provisions would give some comfort to charities appearing before tribunal hearings. I beg to move.
Lord Hodgson of Astley Abbotts: My Amendment No. 86 runs parallel to the proposals set out in the amendments tabled by the noble Lord, Lord Phillips, but approaches the point in a slightly different way. We seek to add to the end of subsection (5), which concerns how the tribunal can order a party to proceedings before it to pay costs if it believes that that party has acted "vexatious, frivolously or unreasonably", the words:
"In other circumstances, subject to subsection (6) below, the party bringing proceedings will not be subject to costs".
Subsection (6) empowers the tribunal to force the commission to pay the other party's costs in cases where it has acted unreasonably.
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I shall briefly underline the points made by the noble Lord, Lord Phillips. Concerns have been expressed to us that charities face the possibility of having to meet the costs of the commission, and it may be that the Attorney-General will shy away from bringing a case to the tribunal, thereby defeating the aim of furnishing charities with a forum for challenging decisions reached by the commission. The amendment would make it expressly clear, rather than simply implying the case as at present, that the burden of costs will fall only on those who make vexatious, frivolous or unreasonable applications to the tribunal. The purpose behind the amendment is to ensure that the tribunal is as accessible as possible to charities both large and small, which I presume is the intention of the Government behind its establishment in the first place.
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