| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Swinfen: I shall withdraw my amendment in due course because we are in Grand Committee. The fund that I have proposed would be under the control of the tribunal, as the amendment says. I agree that the cost cap is too low, but one has to start somewhere. I do not know what the figure should be but there should, in my view, be funds available to take the very occasional and unusual case to the High Court. I believe that despite the tribunal, there will still be that need. The tribunal will reduce the need but will not remove it altogether.
The Joseph Rowntree Foundation could take this step because it is a big charity with large funds. The very small charities cannot. The income of the charity I run is so small that even to contemplate going to court and having to see a solicitor and a barrister on more than one occasion would quite likely run it out of funds and it would not be able to carry on with its valuable work.
I shall read with care what the Minister said because he gave a long and fairly detailed answer. However, I reserve the right to come back to this subject on Report. I give the Minister fair warning that I am extremely unlikely to forget about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury moved Amendment No. 90:
Page 9, line 18, after "expedient" insert "whether or not pursuant to a direction under subsection (2),"
The noble Lord said: This is a probing amendment. Given that in Clause 8, under proposed new section 2D(4), the Attorney-General may,
the amendment is designed to elicit from the Minister whether the Attorney-General is acting pursuant to a direction under subsection (2). I hope that he will be able to reassure me that that is the case otherwise the noble and learned Lord's power of intervention in subsection (4) would be too restricted. I beg to move.
Lord Bassam of Brighton: As the protector of charities, the Attorney-General will, we believe, have a valuable role to play in relation to the Charity Appeal Tribunal. The noble Lord will have heard what I said earlier on the previous amendment. The Attorney-General might argue cases before the tribunal where he considers it to be in the public interest.
We certainly agree with the spirit of the noble Lord's amendment, but the Bill already conveys a power on the Attorney-General to intervene in proceedings in a manner that he considers necessary or expedient. For that reason, the amendment is not necessary. Indeed, proposed new section 2D(5) of the Charities Act 1993, as inserted by this clause, clarifies that the Attorney-General can use his power whether or not the tribunal or the court have given a direction under proposed new section 2D(2) that all the necessary papers should be sent to him. We agree that it is for the Attorney-General to decide when to exercise the power to intervene in proceedings. For that reason, the Charities Bill does not limit its use. For those reasons, I should quite like the noble Lord to withdraw his amendment.
Lord Phillips of Sudbury: The noble Lord will, and does, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts moved Amendment No. 92:
The noble Lord said: Amendment No. 92 seeks on a probing basis to remove Clause 8(3), which gives effect to Schedule 4. Subsection (3) and Schedule 4 are important because it is Schedule 4 that provides the basis for the rights of appeal against Charity Commission decisions to the new Charity Appeal Tribunal.
However, paragraph 1(1) of Schedule 1C to the 1993 Act—to be incorporated into that Act by Schedule 4—continues to limit the general right of appeal by limiting it to specific provisions, now set out in a detailed table in the Schedule, but still not extending it to instances of delay or impasse in the decision-making process of the commission. The Charity Law Association strongly agreed with paragraphs 7.79 and 7.80 of the Strategy Unit report Private Action, Public Benefit, which in recommending the introduction of the tribunal envisaged that it would hear appeals against legal decisions of the commission (Paragraph 7.79) and be
23 Feb 2005 : Column GC345
able to make determinations in the case of delay or impasse in the commission decision-making process (Paragraph 7.8).
Instead, the consultation draft of the Charities Bill included a right of appeal restricted to specified major orders of the commission. The Bill currently provides a significantly extended right of appeal, but the following problems remain. First, in being so specific in the Schedule 4 table—which runs to seven pages of the Bill, between pages 79 and 86—there is a danger of significant omission, or inappropriate provision, which may be corrected only by order of the Secretary of State approved by each House of Parliament—Schedule 4(6). That seems an inflexible model for a major new institution and decision-making process.
Further, and more importantly, the right of appeal still does not extend to instances of delay or impasse. It is not expressly stated in general terms that an appeal may be made against a decision resulting in no action as well as one resulting in action. An express statement to that effect is desirable. I beg to move.
Lord Bassam of Brighton: We obviously believe that it is important for the tribunal's jurisdiction and remit to be set out clearly in statute. As the noble Lord, Lord Hodgson, said, Schedule 4, which inserts new Schedule 1C into the Charities Act 1993, provides a table that makes it clear which Charity Commission decisions would be subject to appeal, who would be able to submit an appeal in each case and the powers of the tribunal in relation to those decisions.
While it would have been possible to group some of the decisions together, we believe that it is simpler to list the decisions in the order in which they appear in the Charities Act 1993. In that way a lay person can quickly identify whether the decision they are concerned about falls within the jurisdiction of the tribunal and whether they are eligible to appeal. It is necessarily long and complicated in order to be effective.
There is one exception to that, which is the rights of appeal related to the regulation of public collections. However, the rights of appeal are clearly set out in Part 3, in Clause 54. As Part 3 contains a new scheme for the regulation of public collections and it might be the only part of the Bill of direct relevance to some organisations, it is clearer and simpler to include those rights of appeal in that part rather than provide for them separately in Schedule 4.
Schedule 4 inserts the appeals table as part of new Schedule 1B to the 1993 Act, whereas the public collections provisions in Part 3 are freestanding provisions. The table is longer than it appeared in the draft Bill but that is because, as the noble Lord acknowledged, we have extended the matters that could be subject to appeal, in line with the Joint Committee's recommendation.
I hope that the noble Lord will agree that the table provides a quick reference guide for the lay person about the jurisdiction and remit of the tribunal and that it is inevitably long as a product of that. Without
23 Feb 2005 : Column GC346
the table provided by Schedule 4 the tribunal could not operate, as there would be nothing to state which decisions would be subject to appeal, who could appeal and what the jurisdiction of the tribunal would be. I am sure that additional clarifying guidance on the table will be provided. I hope that that will help those who seek to understand better exactly what the Appeal Tribunal will cover.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister. I understand why there was a wish to extend the table to seven pages. One of the concerns that charity lawyers have put to us in response to the table is: does it flatter to deceive? What have we missed in this, when it is all set out so extensively? That is the basis for our probing amendment.
I did not hear the Minister say anything about no decisions; that is to say, appeals against failure to take a decision. One of the issues that charity lawyers have found tricky is that in some cases the commission ducks taking a decision and the charity is left stranded. The noble Lord, Lord Phillips, may comment on the matter better, as he has more experience than I have. I am not clear whether the Minister was able to answer the question in my opening remarks: can you appeal against the commission's failure to do something?
Lord Bassam of Brighton: My guess is that that would be covered by the ombudsman and the Independent Complaints Reviewer, as it would be a failure of administration and process. The process would not have reached the point where a decision had been made. The failure to act would probably be challengeable through that route.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |