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Lord Phillips of Sudbury: My Lords, I am sure that we are all grateful to the noble Lord, Lord Swinfen, for plugging away at this, because there certainly is a problem. My view of how to deal with it has been altered as a result of speaking with the Parliamentary OmbudsmanI have done so twice since Committeeand discovering that what I said on the previous occasion is not as true as I thought; that is to say, the notion that I harboured that the Parliamentary Ombudsman would not get involved unless High Court remedies have been exhausted is not correct. There is no need, in order for the Parliamentary Ombudsman to be engaged, for legal remedies through the courts to be pursued. However, if legal action has been commenced, the Parliamentary Ombudsman will not intervene while they are on foot.
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The other inhibition to a remedyto get to the parliamentary ombudsman, who is the only person who can grant what I would call proper compensationis that one has to go to an MP. I am told that that is not a problem in practice. It occurred to me when having conversations with both Ann Abraham, the ombudsman, and with the Independent Complaints Reviewer, that there is far too little understanding within the sector about the availability of access to the commissioner when a charity wants real compensation rather than a modest conciliatory reward. We need to broadcast the availability of the parliamentary ombudsman.
It is for those reasons that I am inclined to think that the creation of a new piece of legislative machinery to create a specific ombudsman for the sector might be premature. I feel that the sector should get its own act together and realise the prospects that there are via the parliamentary ombudsman. We should give that a go before proliferating a further bespoke ombudsperson. I hope that I do not disappoint the noble Lord, Lord Swinfen, too much if I do not support him at this stage.
Lord Bassam of Brighton: My Lords, I congratulate the noble Lord, Lord Swinfen, on persisting in this. We remain of the view that there is already a statutory body that can investigate complaints of maladministrationthe ombudsman. As I said last time, we believe that the ombudsman has many advantages over the Independent Complaints Reviewer, which I shall repeat.
In terms of independence and accountability the ombudsman is appointed by the Queen on the recommendation of the Prime Minister and reports directly to Parliament, as opposed to an appointment by and reporting to the Secretary of State, which is envisaged in the amendment.
Finally, and perhaps most importantly, the ombudsman can recommend any level of redress if the complainant has evidence to show that he or she has experienced quantifiable financial loss directly as a result of the commission's maladministration. If the commission chose to ignore a recommendation of the ombudsman to provide compensation, the ombudsman would refer the commission to the Select Committee on Public Administration. The ombudsman makes recommendations for substantial redress. Today, the ombudsman has published a report recommending financial redress of £100,000 for complainants against the Department of Transport. That is a substantial sum.
A point has been made that the ombudsman will not get involved in cases where the complainant has recourse through the courts. It is important to separate out maladministration from the legal decisions of the commission. Understandably, legal decisions are not within the ombudsman's remit as there is a route of
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appeal for those through the courts. That access will be wider through the Charity Appeal Tribunal. However, the ombudsman could look at any maladministration of the commission even in a case that had been decided by a court or a tribunal on a point of law. That point was made very effectively by the noble Lord, Lord Phillips, following his conversations.
The present non-statutory Independent Complaints Reviewer, Jodi Berg, published her annual report for 200405 last month. During that year she conducted 18 reviews covering 110 individual allegations of maladministration against the commission, of which 14 per cent were fully or partially upheld and 86 per cent were not upheld. She acknowledges the significant progress that the commission has made over recent years in improving its services and complaints handling procedures. She also reflects on the need for a statutory independent complaints reviewer and believes that her role is complementary to that of the ombudsman, without seeking to replace the authority or the independence of that office, which is derived directly from Parliament. She states that,
"It is doubtful whether a potentially overlapping office would add anything for the citizen other than confusion . . . During my time as ICR for the Charity Commission, recommendations have resulted in substantial changes to the way in which the Commission carries out its regulatory role, providing greater clarity and consistency of approach".
We continue to believe that the current arrangements with a non-statutory independent complaints reviewer, backed by the parliamentary ombudsman, provide, on balance, the right approach to the problems that can be incurred or encountered. Having heard that, I hope that the noble Lord, Lord Swinfen, will finally give up on this issue. But that is entirely up to him.
Lord Swinfen: My Lords, I never say finally. One should never admit to giving up anything. The noble Lord, Lord Phillips, said that he thought that this was rather premature, but I wonder. Earlier today the noble Lord, Lord Bassam, said that when this Bill becomes an Act it will be reviewed in five years' time. It will take another five years for another Bill to correct any deficiencies comes before Parliament. That is at least 10 years, but very likely to be longer. So I am not so sure that it is premature. However, I will read carefully what both noble Lords have said and reserve my position on whether I come back with a similar amendment at Third Reading. In that case, I beg leave to withdraw the amendment.
"1 (1) Except in the case of a reviewable matter as set out in paragraph 3, an appeal may be brought to the Tribunal against any decision, direction or order made or given by the Commission under this Act (including any decision not to give a direction, make an order or otherwise act under this Act).
(2) Such an appeal may be brought by
(a) the Attorney General;
(b) any person from the following
(i) the persons who are or claim to be the charity trustees of the institution or who otherwise have control or management of the institution,
(ii) (if a body corporate) the institution itself, and
(iii) any other person who is or may be affected by the decision, direction or order (as the case may be).
(3) In determining such an appeal the Tribunal
(a) shall consider afresh the decision, direction or order appealed against, and
(b) may take into account evidence which was not available to the Commission.
(4) The Tribunal may
(a) dismiss the appeal, or
(b) if it allows the appeal, exercise any of the following powers
(i) quash the decision, direction or order (as the case may be) in whole or in part, and (if appropriate) remit the matter to the Commission,
(ii) substitute for all or part of the decision, direction or order (as the case may be) such other decision, direction or order as could have been made or given by the Commission,
(iii) give such direction to the Commission as it shall consider appropriate,
(iv) substitute for all or part of any direction or order any other direction or order which could have been made by the Commission,
(v) add to the decision, direction, or order (as the case may be) anything which could have been contained in the original decision, direction or order."
The noble Lord said: My Lords, I am sorry that we have to return to another slightly old chestnut, but this is the relevance of the extremely extensive list given in Schedule 4. Noble Lords will remember that this is a longsix pages, in factlist of what may form the basis of an appeal to what is now called the Charity
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Tribunal. When we were last in Committee on 28 June, I argued that an attempt to provide an exhaustive (not to say exhausting) list of what could form the basis of an appeal was bound to end in failure; gaps were bound to appear. I gave two such examples that had already been brought to my attention. I went on to argue that surely it was better, and simpler, to say that anything was appealable.
The Minister argued that it was better to ask people to wade through six pages of densely packed prose, which listed all of the events that were appealable, to see if their case fitted the Bill. I am sorry to disappoint him and say that I cannot see the logic of that approach. The Minister went on to argue that, in any case, the Bill, as presently drafted, gave the power for events, which it later became apparent should properly be appealable, to be added to the schedule in the future. That, in my view, is a clear case of locking stable doors after horses have bolted. It is a shame to set out with a particular weakness in mind.
As I said, I gave two examples, which I considered should be appealable but which were not in the list in Schedule 4 as presently drafted. The Minister, with his infinite politeness, rejected them both. But I would ask him to reconsider the Government's overall position and the approach that they have adopted. My first example was Section 29 of the 1993 Act which is about power to give advice and guidance. The Minister argued that,
I thought that that was exactly what the Bill strategically was trying to avoidto reduce the dependence of the charitable sector on the elaborate, time-consuming, adversarial and expensive legal system.
My other example has stood the test of time rather better. Section 33 of the 1993 Act concerns the taking of charity proceedings. A refusal to undertake such proceedings, apparently, is not appealable, according to the list given in Schedule 4. Again, the Minister replied that this matter,
Why does he seek to drag the legal system back into charity administration, when the Government's approach all along has been to try to keep it out? If his argument tonight is to be that a review by the court will take no longer than a review by the tribunal, that gives me some serious doubts about the fundamental purpose of that latter body. We are expecting it to act faster and to react in a way in which the courts are unable.
To date we have one and a half gaps in the schedule and the Bill is yet to reach the statute book. What will tomorrow bring? On the previous occasion when we discussed this, the noble Lord, Lord Phillips, in kindly
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supporting the amendmenttonight he may have changed his mindsaid that the Government's approach was "counter intuitive". That is a splendid phrase, on which, as often happens with what the noble Lord says, I cannot improve. I beg to move.
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