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Baroness Kennedy of The Shaws: My Lords—

Lord Falconer of Thoroton: My Lords, perhaps I may not accept an intervention; I have only 10 minutes.

The noble Baroness, Lady D'Souza, raised the issue of extraordinary rendition, as did the noble Baroness, Lady Williams of Crosby. I have no knowledge—and I have asked—that we have ever been involved in either rendition of the sort to which the noble Baroness referred, or extraordinary rendition. The noble Baroness, Lady D'Souza, raised the issue of other countries refuelling in this country and then going on and something happening on the plane. We do not know of that. We have signed the Chicago convention that allows refuelling stops without a requirement for the country to say what is going on in that particular plane. I cannot give an assurance as to what is going on, but that is the nature of the aviation convention we have signed. I cannot take the matter any further than that.

We share the views of the noble Baronesses, Lady D'Souza and Lady Park, of the government of Zimbabwe. Their human rights record is appalling, and there are Zimbabweans who need, and must receive, protection through the asylum process. As we have regularly made clear, we assess each case on its individual merits. All those who meet the definition of a refugee under the 1951 Geneva Convention are granted asylum. In addition, those whose removal would be a breach of their rights under the European Convention on Human Rights will also be granted protection.

The issue of how failed asylum seekers are treated on return to Zimbabwe was considered in depth by the Asylum and Immigration Tribunal last week. We do not know what the answer is, but we have a court system that looks at precisely the issues the noble Baroness has rightly raised. We must depend on our court system to address the issues and reach fair conclusions.

I have not dealt with every issue, but I have dealt with the main ones. On the point raised by my noble and learned friend Lord Archer, my understanding is that signing the state immunity treaty has not changed the position on torture, but I recognise that he takes a different view on it. I also fully accept his point that there should be a proper debate before ratification occurs. He rightly says that I am not in a position to give him any guarantee about when such a debate might take place, but I support his view that it should be debated.

The noble Baroness, Lady Kennedy of The Shaws, referred to the fact that in 1709 by the passage of the Treason Act the United Kingdom—albeit Scotland—became the first European state to abolish torture as a legal means of criminal inquiry. We are as opposed to the use of torture now as our enlightened and pioneering forebears were then. Our condemnation of the use of torture is unequivocal and our pursuit of the worldwide abolition of torture remains steadfast, as does our support for the United Nations and the
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Convention against Torture. In difficult times and in the most challenging circumstances we will continue to uphold the example that the United Kingdom has set to the rest of the world for nearly 300 years.

Charities Bill [HL]

8.36 pm

Consideration of amendments on Report resumed.

Lord Bassam of Brighton moved Amendment No. 37:

The noble Lord said: My Lords, I can be brief. As the Bill stands, any party to particular proceedings before the tribunal has a right to appeal to the High Court against the decision of the tribunal in those proceedings. In addition, the Bill gives the Attorney-General the right to appeal the tribunal's decision to the High Court where he has not been party to the proceedings.

We believe in that respect that the Charity Commission should have identical rights of appeal to those that the Attorney-General has, and that is what this amendment achieves. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 38:

The noble Lord said: My Lords, this is again a minor drafting amendment suggested by the parliamentary draftsman. Its effect is to move "treated" to a more suitable position in the sentence. I am advised that the amendment has no substantive effect. I beg to move.

On Question, amendment agreed to.

[Amendment No. 39 not moved.]

Lord Bassam of Brighton moved Amendment No. 40:

On Question, amendment agreed to.

Lord Swinfen moved Amendment No. 41:

After Clause 8, insert the following new clause—


After section 2 of the 1993 Act insert—


(1) There shall be a complaints reviewer to be known as the Charity Independent Complaints Reviewer (in this Act referred to as "the Reviewer").
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(2) The function of the Reviewer will be to investigate—
(a) complaints of maladministration and of failure in quality of service by the Charity Commission, and
(b) complaints of unfair, unreasonable or disproportionate behaviour by the Charity Commission.
(3) The Reviewer shall be appointed by the Secretary of State.
(4) A complaint may be made to the Reviewer by or on behalf of any charity, charity trustee or other person or body who is or may be affected by the actions or decisions of the Charity Commission and there shall be no requirement that a complainant must use the courts or Charity Commission's own complaints procedures first.
(5) The Reviewer will not have authority to investigate and adjudicate—
(a) complaints about the substance of legal decisions made by the Commission, although complaints about the way in which those decisions were made will be within the Reviewer's remit,
(b) complaints by Commission employees concerning their employment or by applicants for employment about recruitment procedures,
(c) complaints where legal proceedings directly relating to the substance of the complaint have been initiated,
(d) complaints relating to matters which are under current investigation by the police or taxation authorities, and
(e) complaints under current investigation or which have earlier been the subject of a report by the Ombudsman, but complaints which the Ombudsman has refused to consider may be reviewed.
(6) The Commission shall co-operate with the Reviewer by permitting the Reviewer—
(a) to inspect and take copies of all documents (including documents in electronic form) held by the Commission which the Reviewer considers relevant to the complaint, and
(b) to interview employees or agents of the Commission.
(7) The charity, the charity trustees and any receiver and manager appointed for the Charity shall also co-operate with the Reviewer by permitting the Reviewer—
(a) to inspect and take copies of all documents (including documents in electronic form) held by it, him or them which the Reviewer considers relevant to the complaint,
(b) to interview the charity trustees, the receiver and manager, their employees and agents and the employees and agents of the charity.
(8) The Reviewer may—
(a) send or not send any draft report to the Commission and the complainant but shall not send it to only one of them,
(b) dismiss a complaint,

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(c) make a finding that the complainant has acted frivolously, vexatiously or unreasonably,
(d) require a complainant against whom such a finding has been made to pay the whole or part of the costs of the investigation,
(e) make recommendations to the Commission regarding the manner in which it discharges its functions, or
(f) make a finding of maladministration against the Commission.
(9) In cases where the Reviewer has made a finding of maladministration against the Commission, he may—
(a) require the Commission to apologise to the complainant, and/or
(b) make an award of compensation against the Commission, or
(c) make no award.
(10) The Reviewer shall report annually in writing to the Secretary of State and may publish reports on individual cases unless he considers that there are good reasons not to do so.
(11) The expenses of the Reviewer will be paid from moneys provided by the Parliament.""

The noble Lord said: My Lords, the purpose of this amendment is to set on a statutory footing the existing Independent Complaints Reviewer who at present is appointed by the Charity Commission, with the following significant alterations to the current arrangements: first, to give the reviewer the power to award compensation for financial loss arising from Charity Commission conduct in addition to small, consolatory payments for maladministration on the part of the commission; and secondly, to minimise delay in accessing the reviewer by not requiring that the complainant use the Charity Commission's internal complaints procedure first.

Together, these changes should bring about a genuinely independent statutory alternative dispute resolution procedure and provide a more rapid resolution of problems arising from complaints about the commission maladministration that is likely to be available through complaints to the parliamentary ombudsman and the High Court, although these two routes will remain available to complainants, as at present.

This amendment would create a truly independent mechanism for charities, trustees and others to challenge the Charity Commission when it is apparently guilty of maladministration or acting unfairly, unreasonably and disproportionately, and to obtain financial compensation for maladministration and financial loss. The Government have previously shown themselves unwilling to allow that role for the new tribunal and have turned their back on arbitration.

In my submission in support of a similar amendment in Committee on 28 June, I made the following points, as reported at col. 217 of the report of our proceedings. The first was that, at present, the
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Independent Complaints Reviewer is a creature of the commission, whose findings and recommendations it can ignore if it so chooses. The second was that the Independent Complaints Reviewer cannot recommend payments for compensation where a charity has suffered real financial loss as a result of the commission's conduct, beyond small consolatory payments. My third point was that access to the ombudsman is restricted to cases submitted by a Member of Parliament, and the ombudsman routinely refuses to investigate cases where there is a possibility of High Court redress. High Court appeals are ruinously expensive for charities and trustees, which have no recourse to legal aid and commonly find themselves up against the Attorney-General and the Treasury solicitor—who has the total backing of the Treasury behind it—which acts for the Charity Commission. Appeals to the High Court require either a certificate from the commission to bring proceedings, or an application to the High Court to bring such proceedings, if the commission refuses its certificate.

Do such arrangements make for easy access to justice? I doubt it. In answer to my amendment in Committee, the Minister drew a comparison between access to the ombudsman and access to the Independent Complaints Reviewer. He concluded that, on the whole, the ombudsman route was advantageous. I do not doubt that it is, but it is not readily available to charities in practice.

In the same debate, the noble Lord, Lord Phillips, said that,

In summarising his argument, the Minister said that the present arrangements worked well—perhaps he meant that they worked well for the Charity Commission. When challenged on the issue by the noble Lord, Lord Phillips, the Minister speculated that a statutory independent complaints reviewer might also want to wait, like the ombudsman, until all legal processes were exhausted first. I see no reason why an ICR might behave in that way, but I have made it my earlier proposal to prevent that. I beg to move.

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