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Lord Phillips of Sudbury: My Lords, I would like to add a few words. The noble Baroness, Lady Scotland of Asthal, said—I think on 28 June last, at col. 189—that, perfectly reasonably, the Government had made all sorts of amendments and improvements to the Bill, which is true, and she drew attention—which is quite fair—to the addition of the words,

and then said that she did not think that adding "fair and reasonable" was necessary. One point that seems to be different is that made by the noble Lord, Lord Dahrendorf—and indeed by myself last time—that one does not want to be too legalistic when looking at the adjectives which have already been added to a very important clause. One thinks of the vast number of non-lawyers in the voluntary sector who will from time to time have cause to try to understand this Bill. "Fair and reasonable" is a time-honoured phrase that has a resonance in a way that some of these others do not. I
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should be comforted if in answering the debate the Minister could give an absolute assertion that the words "fair and reasonable" add nothing whatever to the words "proportionate, accountable, consistent, transparent and targeted"; and, secondly, that in the context in which the noble Lord, Lord Swinfen, wants them inserted, which is in the commission's regulatory duties—because new Section 1D(2)(4) refers to the principles of best regulatory practice—he is quite sure that the need for those words and for the words "fair and reasonable" does not crop up in any of the five other general duties of the commission; for example, in the fifth general duty, which is not that of regulation or performing its functions as regulator but managing its affairs, and so on.

If the Minister could give an absolute assertion that the words are literally redundant in all circumstances that would at least be in Hansard on the record, although I still think, for reasons mentioned previously, that there is no reason on earth why the Government should not agree to these additions, given the nature of the voluntary sector.

6 pm

Lord Bassam of Brighton: My Lords, I shall take the amendments in sequence. I shall start with Amendments Nos. 13 and 14 and then spend a little more time on Amendment No. 15. I think that the noble Lord and I seek to achieve the same end with Amendments Nos. 13 and 14. We have, as has been said, debated the second of the amendments previously. The noble Lord, Lord Phillips, reminded me that it was my noble friend Lady Scotland who dealt with this matter on an earlier occasion.

Both we and the noble Lord, Lord Swinfen, want to ensure that the commission must has regard to the principles of best regulatory practice when regulating. There can be no difference between us on that. It would not make sense for the commission to have regard to these principles when performing functions which are not regulatory; for example, when it lays its annual report before Parliament.

I can see the argument that the inclusion of the words "so far as relevant" means that it must be determined when it is relevant and when it is not relevant to have regard to the principles of best regulatory practice, but it is clear that the occasion on which the commission must have regard to best regulatory practice is when it is performing regulatory functions. I do not see how it could be argued that there could be a situation involving regulation where the commission should not have regard to the principles of best regulatory practice.

The draftsman has achieved our aim by stating that,

when performing its functions. We are clear that this qualifier means that the commission must have regard to these principles when performing regulatory
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functions and must not have regard to these principles when performing non-regulatory functions. The example I gave was that of laying an annual report before Parliament.

I argue that the noble Lord, Lord Swinfen, seeks to achieve the same end simply through different drafting. We have been guided by the expertise of parliamentary counsel when considering drafting. I think that he has produced drafting which achieves our overall aim and purposes. Sometimes noble Lords are critical of parliamentary counsel and draftsmen—and I can understand why that might be the case. But I think that on this occasion they have carefully weaved their way around a little difficulty. So I do not think that it is necessary therefore to accept the noble Lord's amendment. But I hope that I have reassured him sufficiently to enable him to withdraw it.

I turn to Amendment No. 15. We have now debated the amendment on four occasions. The Government's view was most recently set out on 28 June by my noble friend Lady Scotland. I reaffirm that we agree that the commission should act fairly and reasonably. There is no difference between us on that. We were sufficiently persuaded by Members of your Lordships' House to include a duty on the commission to have regard to the principles of best regulatory practice when performing its functions, so far as relevant; and, we have spelt these principles out in the Bill. The noble Lord, Lord Phillips, has referred to them. Regulatory activity should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed.

We have chosen those specific words because they are the principles which the Better Regulation Task Force chose as the principles of best regulatory practice after very careful thought and careful work. We feel that these words adequately express the concept of fairness and demonstrate clearly to trustees and others the way in which they can expect the commission to act.

The noble Lord, Lord Phillips, invites me to give an absolute assurance. I give an absolute assurance that they add nothing to the legal duties which the commission is already under. We have no doubt that the commission is under a duty in administrative law to use its powers reasonably. In our debates I think that there has been a consensus that that is the case.

We have also said that if Parliament thought it necessary to give the Charity Commission that duty, the implication would be that the commission did not have that duty at present. That could present us with some difficulties. That is not the case. If the noble Lord feels that the addition of those words would press the commission to consider this existing duty more profoundly, then I fear that he may well be mistaken. In fact, I go further and say that he is mistaken.

The commission does not doubt that it has this duty already. It would not change its behaviour as a result of the addition of these words, and so the amendment would have no practical effect. Although I think that there is a lot of common ground between us—I have
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explained how I see that common ground—I think there are good reasons why the amendment is not necessary. And there are positive reasons, which I have just outlined, why it would be undesirable. For those reasons, although I am sympathetic and understand the case which has been very carefully made by the noble Lord, Lord Swinfen, and supported in your Lordships' House this afternoon, I cannot accept Amendment No. 15.

I have addressed this issue very carefully. I have tried to be as helpful as I can in dealing with all three amendments. I hope that my explanation has provided some useful clarity.

The noble Lord, Lord Swinfen, raised the issue of the Little Gidding Trust case and the failure of the judge to consider fair and reasonable conduct so far as the commission was concerned in making the order removing trustees. The advice I have been given is that the judge took this approach to shorten the hearing and that he reconsidered whether the order the commission made should stand. The judge decided that it should as it was made in the best interests of the charity. He did not feel that it was necessary in those circumstances to consider the commission's conduct. I can make no other comment on that case. I hope that that point of explanation assists the noble Lord, and I hope that noble Lords have listened very carefully to the explanation that I have given this evening.

Lord Swinfen: My Lords, I thank all noble Lords who have spoken in this short debate. I understand what my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Bassam of Brighton, have said about Amendment No. 13. Therefore, I will not move Amendment No. 13.

I have not been persuaded on my Amendments Nos. 14 and 15, in particular on Amendment No. 15—fair and reasonable. I understand that that amendment is supported by the NCVO and that it has written to a number of your Lordships on the subject. I am not aware that I have ever received a copy of the letter myself; perhaps it is still in the post.

Since I spoke on this subject at Second Reading, I have heard from a charity that I think has not had fair and reasonable treatment by the Charity Commission. It may well be a case of one bad apple in a barrel. But, that being the case, these words in the Bill would be able to allow the commissioners to persuade their own employees that they should behave fairly and reasonably.

I am advised that in the case of the charity that was being looked at by the commission, someone from the commission e-mailed a national newspaper with what I am told are false allegations. Why they should have e-mailed a national newspaper in any case, I do not know—it strikes me as being thoroughly unprofessional. I am also told that rumours were spread that the person running the charity was under investigation by the police. When they went to the police to find out if they were under investigation they were told that it was not the case. Those instances do not represent fair and reasonable behaviour and it would be of considerable
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assistance to those at the head of the Charity Commission if these words were in the Bill. I beg leave to withdraw Amendment No. 13.

Amendment, by leave, withdrawn.

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