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Official Report of the Grand Committee on the
Charities Bill [HL]
(Fifth Day)
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): This is the fifth day of the Charities Bill in Grand Committee. Members of the Committee know the rules by now, but there will be Divisions in the House. When the Division Bell rings, I shall ask the noble Lord to stop speaking immediately. Members of the Committee will kindly come back as quickly as possible. We will stop for 10 minutes or until such time as the Front Bench spokesmen arrive. The result of the Division will appear on the screen later.
Schedule 4 [Appeals and applications to Charity Appeal Tribunal]:
Lord Hodgson of Astley Abbotts moved Amendment No. 98:
The noble Lord said: I rise to speak to Amendment No. 98. As the Deputy Chairman has reminded us, this applies to Schedule 4, which concerns,
Amendment No. 98 would remove paragraph 2(1) on page 77. Paragraph 2 of new Schedule 1C to the 1993 Act relates to hearings by the tribunal of appeals against orders made by the Charity Commission under Section 9 of the Charities Act 1993. Section 9 states:
(a) require any person to furnish them with any information in his possession which relates to any charity and is relevant to the discharge of their functions or of the functions of the official custodian;
(b) require any person who has in his custody or under his control any document which relates to any charity and is relevant to the discharge of their functions or of the functions of the official custodian—
(ii) (unless the document forms part of the records or other documents of a court or of a public or local authority) to transmit the document itself to them for their inspection".
Schedule 4 to the Bill (page 79, lines 46-52) allows anyone who is required, by an order under Section 9, to produce information or documents, to appeal to the tribunal against the order. The tribunal may, according to Schedule 4, quash the order or substitute any order that the commission could have made.
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However, paragraph 2(1), the subject of this amendment, of Schedule 4 limits the power of the tribunal in considering such an appeal, such that the tribunal may not consider the contents of the commission's order.
Sub-paragraphs (2) and (3) further restrict the tribunal's powers in relation to appeal against Section 9 orders. According to paragraph 2 as a whole, the tribunal may allow the appeal only if the document or information does not relate to a charity or is irrelevant to the discharge of the commission's or the official custodian's functions. In other words, the tribunal may not consider whether the commission was making proper use of its powers in making the order in the first place and quash it on that basis.
We can see no rationale for treating Section 9 orders differently from other matters. It would be preferable for the whole of paragraph 2 to be removed, with Section 9 orders being treated either according to the general appeals process prescribed in paragraph 1 or as a reviewable matter, under paragraphs 3 and 4. But we would be content with removing Section 1. I beg to move.
Lord Bassam of Brighton: I think that I need quite a lot of persuading on that. I listened carefully to what the noble Lord said. I shall explain why that is and will go quickly through what Section 9 of the Charities Act 1993 does.
It is a general information-gathering power, which gives the commission the power to call by order for information and copies of documents from a charity or a person. But it can only do so on the following grounds: first, that the information is relevant, obviously, to the discharge of its functions or that of the official custodian; and, secondly, that the information or document relates to a charity.
It is entirely appropriate that such orders can be appealed against on the grounds that the information does not meet one or both of those criteria, which is why the criteria for appeal against the use of the power set out in Schedule 4 directly reflects the criteria for the use of the power as provided for in Section 4 of the 1993 Act.
The limited right of appeal here focuses the tribunal on the legitimacy of the commission's action in issuing the order. We do not believe that there is a need to extend the rights of appeal. Indeed, it could be argued that any further right to appeal would force the tribunal effectively to second-guess the operational work of the commission below a level at which a decisive operational decision had been made. That would curtail the commission's ability to carry out its business effectively and efficiently.
It is perhaps worth remembering that, in practice, orders are often made under Section 9 as a way of providing a person or a charity with the legal comfort of a statutory basis for providing the commission with information. Where the commission takes further action on the basis of the information supplied, there will generally be a separate route of appeal to the tribunal.
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I hope that the noble Lord will agree that that is not a full decision of the commission warranting an onward appeal. The amendment is unwise for the practical running of the commission and its ability to use information and be operationally decisive. I hope that the noble Lord will be happy to withdraw it.
Lord Hodgson of Astley Abbotts: Although I am grateful for that explanation, I am not sure that I fully understand it or agree with it. It does not address the question of why the appeal could not consider whether the commission was making proper use of its powers in making an order, and quash it on that basis. However, this is quite a technical matter about which the Charity Law Association was concerned. I will not endeavour to prolong our discussion this afternoon. I will read carefully what the Minister said, consult and see whether he has been able to answer the technical point. I do not think that he has, but I will rest there and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury moved Amendment No. 99:
"( ) References in the second column of the Table to any other person who is or may be affected by the decision, direction or order shall include any person or persons representing or acting on behalf of any class of persons (including charities) who may be thus affected."
The noble Lord said: The amendment relates to Schedule 4, which clarifies what decisions, directions orders and matters may be appealed against or reviewed by the Charity Appeal Tribunal. The middle column of the table in the schedule sets out those entitled to appeal or to seek a review and the third column sets out the powers exercisable by the tribunal with regard to the matter appealed or to be reviewed.
This is a probing amendment. I am not entirely sure whether those to whom my amendment refers—namely,
"persons representing or acting on behalf of any class of persons (including charities) who may be",
affected by the decision, direction or whatever—are or are not within entry (c), as it typically is in the column: the class of persons who can seek a review or make an appeal, comprising,
Explaining that has not been easy and I am sure that I have confused the Committee, but I hope that what I am getting at is clear enough, because it would be a sorry state of affairs if, for example, a group of charities felt that an issue decided on by the Charity Commission was inimical to their joint interest and selected an individual or one of the charities to act on their behalf, but that individual was cut out under the wording of the table from bringing the matter before
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the Charity Appeal Tribunal. That is to be one of the most important advances we hope to achieve by the Bill. On that basis, I beg to move.
Lord Bassam of Brighton: If the noble Lord, Lord Phillips, is confused in moving the amendment, I am probably on reasonably safe ground. I shall try to confuse him—no, no.
I am grateful to the noble Lord for moving this probing amendment. It gives me the opportunity to clarify how the Government intend this aspect of the tribunal to operate.
Schedule 4 provides a list of all the commission's decisions, directions and orders that could be appealed to the tribunal, the persons that could bring each type of appeal and the findings that the tribunal could make in relation to each type of appeal. For most of the commission's decisions, directions, and orders, the table in Schedule 4 provides the right of appeal to any person who is or may be affected by the decision, direction or order. A person who is or may be affected by the decision is not defined in the schedule. That would be a matter for the tribunal to determine in each case.
As I understand it, it is usual practice to allow an appellant to be represented at a tribunal. The representative need not be a lawyer—after all, that was the original purpose of tribunals, to try to move away from that mode of operation. The Bill would allow a number of parties to bring an appeal, somewhat like a class action and they could agree to use the same representative to put their case. However, if a number of parties were to make an application to the tribunal, it would have to be satisfied that all the parties in question were affected by the decision and therefore eligible appellants. For example, if 10 parties were to make an application to the tribunal, but only seven could demonstrate appeal rights, the tribunal would not be able to make a decision in relation to the other three.
It would not be appropriate to give direct appeal rights to representatives, unless the representative was an affected party in his own right. The right to appeal lies with the person listed in the second column to Schedule 4, as the commission has made a decision which affects that person in some way. It will be for the tribunal itself to determine whether an applicant could be considered a party to proceedings by virtue of being, or potentially being, affected by the commission's decision, direction, or order. It is right that the tribunal itself consider these matters, as the circumstances will vary in each case or class of case.
I can help the noble Lord by assuring him that in drawing up the rules, full consideration will be given to allow for the proper representation of parties before the tribunal. As I have said, the rules will be subject to extensive consultation and I would be happy to ensure that noble Lords involved in the Grand Committee's consideration of the Bill will be part of that consultative process. I hope that the noble Lord will accept that we do not consider it appropriate for a person acting in a representative capacity, but who is
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not himself affected by the decision, to be given appeal rights and I hope that the noble Lord will withdraw the amendment.
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