| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Bassam of Brighton: I thank both noble Lords for tabling these amendments because they provide us with a useful opportunity to look again at the powers provided for the tribunal to award costs. As we have all agreed on a number of occasions, the tribunal will provide a quicker and cheaper means of challenging legal decisions rather than pursuing them through the High Court. We do not believe that costs should be awarded by the Charity Appeal Tribunal as a matter of course, as that might deter appellants with legitimate appeals from submitting them. However, we appreciate that there might be cases where the tribunal considers that the person bringing the proceedings, or any other party to them, had acted in such a manner that it would warrant costs to be awarded against him or her. The Government therefore want to achieve a balance between not deterring potential appellants from submitting appeals because of the threat of costs being awarded against them and discouraging appellants from lodging appeals in an unreasonable, frivolous or vexatious manner. We appreciate the range of the argument here and the difficulties that can be encountered either way.
We agree that costs should only be awarded against the party bringing the proceedings in the circumstances provided for by subsections (5) and (6) of new Section 2B of the 1993 Act, as they would be inserted by this clause. That is limited to sets of circumstances: awarded against any party where the tribunal considers that the party has acted in a vexatious, frivolous or unreasonable manner; and against the Charity Commission, where the tribunal considers that it had acted unreasonably in making the relevant decision, direction or order.
In the light of the amendment we will consider carefully whether the Bill as drafted achieves that outcome, which is to limit the award of costs to the circumstances provided by new subsections 2B(5) and (6) of the 1993 Act.
Regarding Amendment No. 88, spoken to by the noble Lord, Lord Phillips, the Lord Chancellor will be making rules about the award of costs by the tribunal. As I said earlier, we believe there should be a limit on the circumstances in which those awards can be made. The power to award costs is important and powerful,
23 Feb 2005 : Column GC331
as the noble Lord, Lord Phillips, said, and is a useful and necessary sanction to use against the vexatious or frivolous litigant who, frankly, behaves badly, abuses the public purse and wastes time.
However, the intent of Amendment No. 88 is already provided for in the Bill. The commission could, in advance of the proceedings, decide not to seek recovery of costs. Indeed, the Charity Commission has already stated that it will not routinely claim costs against a charity even if the tribunal makes the award. In the circumstances, that is a useful commitment given by the commission.
I hope that the noble Lord will accept that his amendment is not necessary, particularly given that the Charity Commission can already decide in advance of proceedings not to recover costs.
Lord Phillips of Sudbury: That response by the Minister is helpful and I am reassured by his comments. On that basis, Amendment No. 88 is redundant. I shall read carefully what he has said regarding Amendment No. 82 and Amendment No. 86, tabled by the noble Lord, Lord Hodgson, and hope that I am as satisfied as I am at the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 83 and 84 not moved.]
Lord Hodgson of Astley Abbotts moved Amendment No. 85:
"( ) The High Court shall have power to cede jurisdiction to the Charity Appeal Tribunal in matters otherwise within the jurisdiction of the High Court concerning charities either (on the application of any interested party) in relation to one or more particular category or categories of cases.
( ) The High Court shall furthermore have power on the application of any person interested to give directions as to the proper hearing of matters falling within the jurisdiction of both the Charity Appeal Tribunal or the Tax Tribunals (or both) and the High Court as it shall think fit for the purposes of the proper determination of the issues in question and the proper representation of all necessary or interested parties.
( ) Rules of Court may be made for the purposes of the exercise of foregoing powers."
The noble Lord said: The amendment concerns the Charity Appeal Tribunal's jurisdiction. It seeks to insert after on page 8 a new subsection that would fit between subsections (4) and (5).
Christopher McCall QC has provided a helpful briefing on this probing, if highly technical, amendment. We seek to draw the Government's attention to some distinct problems that the legal experts believe did not receive proper attention when the draft Bill was under review. The noble Lord, Lord Phillips, has tabled a similar amendment in a different part of the Bill. He has the benefit of 40 years' experience to put it in the right place.
There will be three originating tribunals for issues of charity law: the new appeal tribunal, tax tribunals and the High Court for issues not within the jurisdiction of the other two. A tax tribunal can refer matters straight to the Court of Appeal in appropriate cases, but not to the Charity Appeal Tribunal. The High Court cannot
23 Feb 2005 : Column GC332
refer matters to the Charity Appeal Tribunal, nor can the Charity Appeal Tribunal refer matters to a tax tribunal. Some issues might, in theory, come within the ambit of all three processes. A will trust for a dubious charitable purpose might give rise to, first, an inheritance question for the tax tribunal; secondly, a question of registration, which would bring it within the remit of the Charity Commission and, at one remove, the tax appeal tribunal again; and, finally, questions of construction involving next of kin which must, surely, be destined for the High Court.
If what I have been advised is right, surely the positions of the various jurisdictions need to be clearer. It is accepted that the High Court needs some jurisdiction, for example, where issues mix private and public questions—for example, will construction or the rights of members of a charity—or ones which may need some form of injective relief such as Sikh temples, or issues of administrative law such as the National Trust. The tax tribunals may have to deal with issues that affect more than mere questions of charity rights, so one cannot simply disregard the need for the tax tribunals to deal with charity law issues.
However, if there is to be a Charity Appeal Tribunal, why does the High Court have to deal with what I understand is called a Snowden question—whether a charity has the power to meet a moral obligation? As I understand it, the answer is that it does, because it is a proceeding which only the Attorney-General can initiate and because the Snowden case says that it must. But should it have to? It appears that the likely effect would be to reduce the standing of the Charity Appeal Tribunal for it to be seen as an appendix of the High Court and a reviewing body of some commission decisions, not a body which stands on its own feet to give directions to issues of charity local authorities, as tax tribunals do in the case of tax law.
Is it not possible to give the High Court a supervisory jurisdiction which enables it to direct that issues affecting charities should be referred either directly to it in place of tax tribunals, or to the Charity Appeal Tribunal, or to allocate appeals between those two other tribunals? A wider power to make rules of court and/or practice and procedure seems to be worth considering. Also, should there not be the power to jump over the High court from the Charity Appeal Tribunal and go straight to the Court of Appeal on pure questions of law?
As I have said, this is a probing and technical amendment. I look forward to hearing the Minister's explanation as to how he believes the various pieces in this complex legal jigsaw will fit together. I beg to move.
Lord Phillips of Sudbury: The noble Lord, Lord Hodgson of Astley Abbotts, read his brief to perfection. He was word perfect, and we thank the good Christopher McCall QC for taking the trouble to raise these issues and, indeed, for drafting the amendment. I do not know why mine was tabled; I should have put my name to this amendment. Although technical in nature, it achieves severely
23 Feb 2005 : Column GC333
practical ends, as the noble Lord has described, and I hope that it will assist the Government in improving the Bill.
Lord Bassam of Brighton: I shall have to read my brief carefully. Under the existing law a right of appeal to the High Court exists in relation to some decisions of the commissioners. Clause 8, as currently drafted, creates the new Charity Appeal Tribunal to act as the "court of first instance" for appeals against the legal decisions of the Charity Commission. The intention is for the tribunal to deal with appeals expediently and only where necessary for cases to be referred on to the High Court on a point of law.
It goes without saying that the Government have given careful thought to the jurisdiction of the tribunal and, in response to the Joint Committee's recommendation, have ensured that the Bill reflects as many as possible of the commission's decisions to exercise, or not to exercise, its statutory powers. If noble Lords believe that there are specific decisions of the Charity Commission which would be outside the remit of the tribunal, but which they consider should be within the its remit, we would be foolish to ignore them. We would be happy to give them fair consideration.
The Charity Appeal Tribunal is being established for a specific purpose: to hear appeals against specific decisions. There is a clean line of accountability and appeal. Potential appellants will know which of the commission's decisions can be appealed against and that an appeal could be taken further to the High Court on a point of law, if necessary.
These amendments would extend the jurisdiction of the tribunal in a number of ways that the Bill does not intend. Amendment No. 91 would give the Attorney-General a role in consenting to the High Court's jurisdiction being ceded to the tribunal in relation to particular categories of case; and both amendments would allow any interested party to apply to the High Court for jurisdiction to be ceded in a specific case.
The High Court would not refer matters related to charities to the Charity Appeal Tribunal. If a matter was before the High Court, it would be within the High Court's jurisdiction and the court should decide the case. There may be a large number of matters before the High Court that related to charities, but which did not relate to Charity Commission decisions. It would not be appropriate for those matters to be considered by the tribunal. In addition, it would not be appropriate for the High Court to give directions in a case before the tribunal. The tribunal and court have separate distinctive jurisdictions and the case would not be the High Court's concern until there was an appeal to the High Court.
I should add that there is scope for the list which specifies appeal rights, eligible appellants, and remedies, to be amended by order, subject to the affirmative resolution procedure, if it becomes necessary to widen the tribunal's scope. So, if, following a process of review, it was thought that the tribunal was too narrow, its remit could be expanded to include a wider range of issues and considerations.
23 Feb 2005 : Column GC334
I hope that noble Lords will accept that the tribunal and High Court have distinctive jurisdictions and that it is the tribunal that should first deal with appropriate charity appeals against the specified decisions of the Charity Commission. I hope that that answers the noble Lord's comments.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |