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Lord Phillips of Sudbury: My Amendment No. 100, which is grouped with Amendment No. 88A, covers essentially the same ground. I think the positioning of the amendment of the noble Lord, Lord Hodgson, is better than mine.

The provisions in proposed new Section 2D for insertion in the 1993 Act under Clause 8 fall under the heading of,

"Intervention by Attorney General".

One might think that that gave him the power to refer points of charity law to the tribunal, but it does not. It gives no power of initiation to the Attorney-General; only a power to intervene in a case already commenced by someone else.

One of the recommendations of the Joint Committee was precisely that the Attorney-General—and, indeed, the Lord Chancellor—should have this power. The response was that the Government agreed that the Attorney-General should be able to refer matters to the tribunal. So presumably this will elicit a jolly response from the Minister.

Lord Borrie: Schedule 3 to the Bill creates the tribunal and describes its composition. As we know, the president, the legal members and the non-legal members are all to be appointed by the Lord Chancellor. That shows its significance in the judicial scheme of things. It has an important jurisdiction in regard to appeals of decisions of the Charity Commission and review powers. These are important functions. As a matter of principle we should be very cautious before allowing it to be used as a facility for advisory or, if I may put it this way—pejoratively perhaps—academic opinion.

I am thinking of a situation where a matter is not yet in dispute and has not yet arisen as an issue, as a problem, but someone in the Charity Commission wishes to know the answer. Instead of consulting their own legal staff or paying for legal advice elsewhere, that person might see the facility of the tribunal and say, "Let us go there for an advisory opinion".

There is a distinction between the Attorney-General and the Charity Commission. For what it is worth, I agree with the noble Lord, Lord Phillips, in his interpretation that the reference to intervention by the Attorney-General in proposed new Section 2D in Clause 8 refers only to intervention in the course of proceedings. It therefore does not provide for what the Government indicated they were favourably disposed towards— intervention by the Attorney-General in simply seeking an advisory opinion when there are not any existing proceedings.

As a matter of principle, I would be cautious about the Government going down either route, but certainly, for the reasons I have given, I do not think it would be desirable for the Charity Commission for this new tribunal, its important jurisdiction and
 
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significant membership appointed by the Lord Chancellor to be simply used as a lawyer substitute facility.

Lord Best: I beg to differ with the noble Lord, Lord Borrie. I am very supportive of the amendment. The Joseph Rowntree Foundation, of which I am the chief executive, took a case to the High Court to test the law on whether or not the housing provided for older people who purchased their sheltered flats, and therefore were not in poverty, but for whom some care and support would be provided when they lived there was a charitable endeavour.

In those days, before the new tribunal existed, we had to go through a cumbersome and extremely expensive court case, which stretched over a lengthy period of time. But we did so with the full consent, backing and approval of the Charity Commission, which was very supportive of our taking the matter through the courts because it wanted to know the answer.

A great deal of time and trouble could have been saved if the amendment had been in place and it had been possible for the Charity Commission, rather than relying on our charitable foundation to pay all the legal costs we incurred in so doing, to have itself sought the opinion on behalf of ourselves and many other bodies which provide housing for relatively affluent people but include some care within it. I strongly support the amendment.

Lord Bassam of Brighton: I think that the Committee would agree that conferring on the Charity Commission and the Attorney-General the power to refer matters of charity law to the Charity Appeal Tribunal for its interpretation, review or determination would significantly extend its remit beyond what was originally intended. As far as we can tell, there is no other tribunal that can consider points of law outside of its considerations related to a substantive appeal.

The amendment of the noble Lord, Lord Hodgson, would extend the scope of the tribunal even further beyond matters of charity law and into legislation which is applicable to charities. That would or could include legislation governing various matters, from planning law to child protection legislation. The Charity Appeal Tribunal would have limited expertise, or perhaps no expertise, to determine such matters and we do not believe that it would be appropriate for the tribunal to deal with matters other than charity law.

In order to take this forward we believe a number of issues would require further consideration. These would include the circumstances where it would be appropriate for the commission or the Attorney-General to refer matters to the tribunal; whether the tribunal's interpretation or determination would be binding on the Charity Commission; whether the agreement of the other party would be required before such a referral could be made; and determining the most appropriate avenue of appeal from a decision of the Charity Commission which had been based on the interpretation of the tribunal.
 
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I am sure the Committee will agree that we would not want the tribunal to end up considering an appeal against a decision on which it had previously provided its interpretation or determination. However, the alternative would be for the avenue of appeal to be to the High Court.

Having said that, which I am sure some noble Lords will see as being entirely negative, we appreciate that there might be benefits for the Charity Commission in being able to refer matters to the tribunal for its interpretation or determination—I listened with some care to what the noble Lord, Lord Best, said in that regard—for example, where it is considering a complex case about charitable status. It would also have potential benefits for applicants in removing the need for an applicant to submit an appeal.

To sum up, we are not convinced that the amendments as drafted will have the intended effect. We understand what the underlying principles behind them are striving towards but we would want to ensure that the scope of the tribunal is limited, in any event, to considering matters of charity law only.

We can see a number of difficulties in taking these amendments forward but we are happy to give further consideration to these issues with a view to seeing whether the scope of the Charity Appeal Tribunal could be usefully and appropriately extended to consider referrals from the commission or the Attorney-General on points of charity law. So while we are happy to go some way towards where the noble Lord wants to be, if we were to go much further we would run into considerable difficulty.

Lord Hodgson of Astley Abbotts: I am grateful for the Minister's answer and for his comments. I accept his point about the law being widened to planning and other statutory matters quite outside charity law. That is not what we were driving at. We were driving at charity law only and I accept that the amendment is inappropriately drafted.

I accept what the noble Lord, Lord Borrie, said about the tribunal being over used, but it would reveal a lack of grip by the management of the Charity Commission if we ever got into that situation. If the Charity Commission were to allow it to be put to that use, I fear for what the regulation of charities would become like if that was the quality of the management of the Charity Commission. But I take the point that there is a concern in that area.

I am grateful to the noble Lord, Lord Best, because a good example is worth a thousand dry discussions here. He made a very interesting comment and gave a helpful example.

I look forward to seeing what the Minister is able to come up with. I accept the points that he made about the faults in the amendment as presently drafted and I beg leave to withdraw it.

Lord Phillips of Sudbury: Everything the Minister said by way of criticism seemed to be addressed to the
 
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amendment of the noble Lord, Lord Hodgson. My amendment has none of the defects that the Minister laboured to outline.

Perhaps he will ask his officials to produce for him the case of the North Tawton Rugby Club, which is a classic example of why such a provision would be hugely helpful. In that case, the commission produced a 15-page decision which, in effect, said, "We feel that this is such a big decision that it should be taken by Parliament or the High Court". As the club could not afford to go to the High Court, that held back the development of charity law vis-à-vis amateur sports clubs by years and led to wholly unnecessary legislation in relation to community amateur sports clubs, in which the Minister was involved with myself. It is a perfect example of why we need the provision.

I should say to the noble Lord, Lord Borrie, that it would be in my dreams that we would have a number of cases referred to the Charity Appeal Tribunal for interpretation of charity law because the whole sector has been so held back and encumbered by the absence of regular judicial oversight of key issues. Such oversight would help the Charity Commission, it would help the sector and it would be wholly positive. While I understand the noble Lord's general point, in the circumstances it is an unnecessary anxiety.

Amendment, by leave, withdrawn.

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