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Lord Bassam of Brighton: My Lords, I do not have an answer to the point made by the noble Lord, Lord Phillips. It is certainly a reasonable question. I await advice. It seems to me quite reasonable that people should be put on notice.
In response to the question asked by the noble Lord, Lord Hodgson, the reason for the amendment being in the terms in which it is is simply because it has the effect of reducing the costs. The purpose is to ensure that the attorney and the commission do not simply duplicate work and that the commission does not inadvertently act without the attorney's knowledge. It is simply to ensure that there is a common understanding behind the approach that is being adopted.
"(4) The Tribunal shall have jurisdiction to hear and determine
(a) such appeals and applications as may be made to the Tribunal in accordance with Schedule 1C to this Act, or any other enactment, in respect of decisions, orders or directions of the Commission, and
(b) such matters as may be referred to the Tribunal in accordance with Schedule 1D to this Act by the Commission or the Attorney General.
(5) Such appeals, applications and matters shall be heard and determined by the Tribunal in accordance with those Schedules, or any such enactment, taken with section 2B below and rules made under that section."
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Page 8, leave out lines 16 to 18.
Page 8, line 21, at end insert "and matters relating to the making of references to it"
Page 8, line 26, leave out from "which" to "to" in line 27 and insert "must be taken before appeals, applications or references are made"
The noble Lord said: My Lords, this is a minor drafting amendment suggested by parliamentary draftsmen. Our intention is that where rules made by the Lord Chancellor require a person to take particular steps before appealing or applying to the tribunal, the rules may also specify the period within which any steps are to be taken. We thought the current wording might be read as requiring a period to be specified, rather than allowing a period to be specified. This amendment simply puts that issue beyond doubt. A period can be, but need not be, specified. I beg to move.
The noble Lord said: My Lords, in most proceedings before the tribunal the parties will present their own cases in an oral hearing, but there may be some circumstancesfor example, where there is extreme urgency for a decision, or where all parties feel that they have nothing to add to what they have said in the papers they have put before the tribunalwhere an oral hearing is not at all necessary. Therefore, we think it is sensible to enable the Lord Chancellor's rules to provide for a matter before the tribunal to be determined without an oral hearing in specified circumstances. This amendment achieves that simple objective. I beg to move.
Lord Phillips of Sudbury: My Lords, I see the point of Amendment No. 28, but it is quite open-ended, allowing matters to be determined without a hearing in specified circumstances. Will it be open to the Government to specify, within the rules, what the specified circumstances are without limit? These are difficult issues to take on the hoof, but will the Minister also give a reassurance that the rules that may
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be made in that regard will be common-sensical, as I would call them, and not take advantage of the breadth of the allowance?
Lord Bassam of Brighton: My Lords, the noble Lord asks a perfectly reasonable question. Clearly, the Lord Chancellor's rules need to be drafted very carefully. This is a common-sense issue, enabling matters to be considered on paper rather than having the formality of an oral hearing. I have no doubt that we shall want to consult very carefully on the drafting of those rules. I know that consultation takes place on drafting matters. I hear what the noble Lord says and I seek to reassure him on that. Clearly, we are trying to be facilitative and helpful rather than sneaking something in that has some wily or secondary purpose. That is not the intent at all and I cannot think of any circumstances when it would be the intent of the Government.
The noble Lord said: My Lords, Amendment No. 30 is grouped with an amendment in the name of the noble Lord, Lord Phillips. Our amendment is designed to do no more than remove an uncertainty that might otherwise exist in the provisions that the amendment replaces. Our intention has always been that the tribunal should have power to award costs against any party to proceedings that the tribunal believed had acted vexatiously or frivolously or in some way unreasonably. As the present provisions are drafted, we believe that they may be capable of being read as though the tribunal's power in that respect did not extend to the Charity Commission. We do not want there to be any doubt that the tribunal has the power to award costs against the commission where, as a party to proceedings, it has acted vexatiously, frivolously or unreasonably. We do not want the commission to be put in a special place. Accordingly, we have tabled this amendment to remove any doubt.
The amendment tabled by the noble Lord, Lord Phillips, distinguishes between the reasonableness of a Charity Commission decision, direction or order and the reasonableness of the commission's conduct in reaching that decision. Of course, making a judgment on the former falls squarely within the tribunal's remit, but on the latter it does not and should not, because essentially it is about whether the commission has
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properly handled the casework leading up to the decision. As I have said before, that is for the commission's independent complaints reviewer and/or the Parliamentary Ombudsman to judge. It is a matter of administrative competence, not of law.
Even if in a particular case the tribunal found a decision reasonable, it would be perfectly possible for the ombudsman to find the commission guilty of poor administration in reaching that decisionif, say, long delays by the commission in reaching the decision had caused a charity some loss or harm.
I believe that the noble Lord will accept that these are two quite separate considerations. I cannot see any merit in extending the tribunal's remit into the ombudsman's territory in this duplicative way. I beg to move.
Lord Phillips of Sudbury: My Lords, I am slightly lost. I am not sure that I have not acted with undue patience in having the Minister answer an amendment before I have moved it. He took a liberty at seven o'clock at night on the 353rd hour of consideration of this Bill, and I cannot blame him. He put the counterargument rather well and I am inclined to withdraw my Amendment No. 33 because I see that, if the tribunal were given the power to consider the conduct of the commission in reaching a decision, direction or order, that could allow a huge enlargement of cases and there may never be an end to them. Later, under Amendment No. 34, I shall have an opportunity to urge on the House the need for some kind of suitors' fund, but for the moment I am content not to move Amendment No. 33.
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