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Lord Bassam of Brighton moved Amendment No. 31:


"( ) Rules under subsection (2)(a) or (b) above may confer a discretion on—
(a) the Tribunal,
(b) a member of the Tribunal, or
(c) any other person."

The noble Lord said: My Lords, noble Lords will be aware of the principle that delegated legislation, such as rules or regulations made by a Secretary of State under a power conferred by Parliament, may not, unless the primary legislation specifically allows it to do so, further delegate a discretion to any other persons. This amendment is to authorise the Lord Chancellor to sub-delegate in his rules regulating the exercise of appeal rights and his rules about practice and procedure in tribunal proceedings.

That would, for example, allow the tribunal or its members discretion to adapt the prescribed procedures to the needs of parties in particular cases. It would also allow the rules to require the Attorney-General or the Charity Commission to take reasonable
 
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steps to notify a charity of the intention to refer to the tribunal a matter affecting the charity. Without the amendment, neither would be possible. I beg to move.

7 pm

Lord Phillips of Sudbury: My Lords, what is meant in Amendment No. 31 by "any other person"? The amendment allows rules to be promulgated conferring discretion on,

That cannot mean the man in the moon. What does it mean?

Lord Bassam of Brighton: My Lords, I take it to mean those who are relevant to the proceedings. The noble Lord has a point and I will reflect on that.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 32:


"(5) The Tribunal may award costs only in accordance with subsections (5A) and (5B) below.
(5A) If the Tribunal considers that any party to proceedings before it has acted vexatiously, frivolously or unreasonably, the Tribunal may order that party to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings.
(5B) If the Tribunal considers that a decision, direction or order of the Commission which is the subject of proceedings before it was unreasonable, the Tribunal may order the Commission to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings."

[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]

On Question, amendment agreed to.

Lord Phillips of Sudbury moved Amendment No. 34:


"( ) The Lord Chancellor may, after such consultations as he shall think fit, establish a suitors' fund to widen access to the Tribunal by assisting with payments of applicants' costs and may make rules for the purpose."

The noble Lord said: My Lords, a comparable amendment tabled by the noble Lord, Lord Swinfen, is grouped with this amendment. I return to the issue of a suitors' fund without any embarrassment or reluctance, because one of the great flaws of the Bill is to have no prospect of legal assistance for those seeking to take advantage of the charity tribunal.

Our law is cluttered with tribunals that afford theoretical remedy to agreed citizens but are inaccessible because they are so expensive to access. I spoke to the noble and learned Lord, Lord Mackay of Clashfern, on this matter before he had to leave. He concurred in the number of such tribunals that suffered that crippling defect. As the National Council for Voluntary Organisations said in its briefing, the
 
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very evolution of charity law itself—and particularly the definition of what is charity—has been thwarted over decades because of the cost of getting proceedings before the High Court.

As I have said before, it is very important to understand that the costs of going to the charity tribunal are not likely to be significantly less than going to the High Court when dealing with an issue such as charity status. Non-access to the legal remedies that the state provides is now commonplace across the board. I passionately believe that we need to introduce into the Bill at least the prospect of some assistance with applicants' costs with respect to the tribunal.

Amendment No. 34 is permissive in allowing the Lord Chancellor after consultation to establish a suitors' fund,

I do not see how the Government can or should object to a permissive power. It will be in the hands of the Government and the Lord Chancellor whether or not they exercise it. I do not want to walk away from the Bill leaving it in a state where to get a suitors' fund off the ground would require primary legislation. Since the need for the suitors' fund will be quickly apparent, I urge this matter on the House tonight with all the strength I can muster. I beg to move.

Lord Swinfen: My Lords, I agree with all that has been said by the noble Lord, Lord Phillips, regarding the amendment which deals with a suitors' fund designed to provide access to the tribunal. My amendment, Amendment No. 39, provides for a suitors' fund to enable charities to take their case to the High Court. I prefer the wording of the amendment tabled by the noble Lord, Lord Phillips. If he were prepared to include the issue of the courts in addition to the tribunal, it would be a better amendment and both cases would be covered. Far fewer cases would go to the High Court than to the tribunal.

In Committee, the amendment that I moved was opposed by the Minister. That is always the case when I move an amendment but I get over that. He opposed it on the grounds that the Legal Services Commission will be able to grant exceptional funding in certain cases, usually public interest or test cases. However, the noble Lord, Lord Phillips, who is an extremely eminent charity lawyer, replied that he was unaware of the legal authority of the Legal Services Commission and that the general position has been that legal aid is unavailable to charities. The noble Lord is not alone in that belief. I failed to find any charity lawyer who has ever heard of the idea of legal aid for charities. If it is available in practice they might be expected to know about it. However, the Minister says that the Legal Services Commission is able to grant it. Will he give chapter and verse when replying?

The Minister also argued at col. 216 of the report of our proceedings on 28 June that the Attorney-General has power to intervene on behalf of charities and test cases and that that, coupled with legal aid, is sufficient.
 
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I do not believe that total reliance on the Attorney-General or the Legal Services Commission helping poor charities is either sensible or adequate.

I reiterate that the creation of a suitors' fund was a recommendation of the Prime Minster's Strategy Unit and has received the strongest possible support from the charity sector, including the NCVO and a number of other representative voluntary bodies. From their knowledge and experience of the sector and its needs, they do not believe that the further development of charity law should depend on the willingness or ability of charities, trustees and others to pay for appeals to the tribunal or the court. Nor do they, or I, believe that the Attorney-General can invariably be relied on to take such appeals forward.

I approve of the amendment moved by the noble Lord, Lord Phillips. Going to the High Court and the tribunal should be amalgamated into one amendment. Perhaps we can look at that together at the next stage if he does not press the amendment to a Division this evening.

Lord Bassam of Brighton: My Lords, we have debated already the possibility of establishing a suitors' fund. Indeed, we debated identical amendments in Committee. It is a pity that noble Lords did not put their amendments together for this debate. Essentially our position remains the same, but I shall restate the salient points.

In establishing the Charity Appeal Tribunal, the Government's intention is to widen access to charity law, a move which has been broadly welcomed. If it is to be a success, the tribunal must be accessible to charities both large and small, and we intend it to be so. We have already accepted that there might be a small number of cases of clear public interest where the issues are complex and the appellant might need legal advice and representation, but does not have the resources to engage them.

In our view, there are two safeguards in such circumstances. First, the Attorney-General will have a power to intervene as a party to proceedings, which may well be exercised in complex cases, and could relieve the appellant of much of the cost of engaging legal representation. Secondly, legal aid may be available in certain circumstances to individuals appealing to the tribunal, which could include the trustees of unincorporated charities. Where the individual meets the criteria for financial eligibility, legal advice and assistance may be available before the tribunal begins. This may extend to obtaining counsel's opinion or submitting a written case to the tribunal. While legal aid does not normally fund full representation by way of an advocate before most tribunals, funding can be made available to individuals in exceptional circumstances.


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