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The Deputy Speaker (Baroness Gibson of Market Rasen): My Lords, if Amendment No. 46 is agreed to, I cannot call Amendment No. 47 because of pre-emption.

Lord Bassam of Brighton: My Lords, I shall have to disappoint the noble Lord. We remain of the view that setting out details of the appeal rights, eligible appellants, and tribunal powers in the way we have done in the table in Schedule 4 is clear and easy to understand, and is the right approach. In addition, we would not usually expect the lay person to refer directly to the legislation for details of appeal rights. Rather, we would expect the commission to provide details of rights of appeal in a leaflet or guidance document designed specifically for charity trustees and the lay person, rather than charity lawyers and other professionals who may be more practised at referring to the legislation directly.

One of the concerns that has been mentioned is whether we have missed any particular provisions in this table. We have given the table very careful consideration, but we also have the power for the Secretary of State to amend the table, subject to the affirmative resolution procedure. This provides the flexibility to add, remove, or amend appeal rights. If Members of your Lordships' House want to draw attention to any particular omissions, we would be very happy to consider those for inclusion.

We do not agree that the tribunal's remit should extend to circumstances where the commission has not made a decision, direction, or order or has unreasonably delayed making a decision. These are matters of maladministration rather than legal decisions, and we believe that the correct process in such circumstances is through the commission's own complaints procedure, the Independent Complaints Reviewer, and ultimately, of course, the ombudsman. A further practical difficulty would arise if we were to extend the tribunal's remit to cover the failure of the commission to make a decision. The right of appeal to the tribunal is triggered by an action of the commission—such as the making of an order or direction, or the decision not to make an order or direction. If this were to extend to failure to make decisions, it would be very difficult to establish the point in the time at which an appeal right should be conferred.

We have not been persuaded by the noble Lord, Lord Hodgson. We believe that flexibility is the right approach. If noble Lords can find something that is missing and make a case for it, of course, we shall happily consider its inclusion. If we were to accept this amendment it would mean that a substantial series of amendments would have to be tabled to reflect the point in other parts of the Bill. At this stage I do not
 
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look forward to that possibility with any great relish. The flexibility that we have works. It will probably work well and serve us well.

Lord Phillips of Sudbury: My Lords, will the Minister give a specific assurance that, if gaps are found in the lists of appeals that should be made, there will be rapid action to put that right? Otherwise people will be prevented from getting their remedy. The noble Lord, Lord Hodgson, makes a powerful point.

Lord Bassam of Brighton: My Lords, of course. If there was an omission we would want to act swiftly. There is no doubt about that.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble Lord, Lord Phillips, for that intervention. He took the words right out of my mouth. I was going to ask the Minister exactly the same question. I am delighted to hear that assurance.

I accept the Minister's argument about the problem of consequential amendments if this different approach was adopted. I am bludgeoned to death on this matter. I surrender. I give up. I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 pm

Lord Bassam of Brighton moved Amendments Nos. 47 to 48:


"( ) The Commission shall be the respondent to such an appeal."
Page 87, line 8, at end insert—
"( ) The Commission shall be the respondent to such an application."

On Question, amendments agreed to.

Lord Bassam of Brighton moved Amendment No. 49:

The noble Lord said: My Lords, the aim of this minor amendment is to correct an infelicity in the drafting of the Bill. At present the relevant provision refers to an order "given" by the Charity Commission. Properly speaking, orders are "made", not given. This amendment makes the necessary correction. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 50:

SCHEDULE 1D

Section 2A(4)

REFERENCES TO CHARITY TRIBUNAL

References by Commission

 
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1 (1) A question which—
(a) has arisen in connection with the exercise by the Commission of any of its functions, and
(b) involves either the operation of charity law in any respect or its application to a particular state of affairs,
may be referred to the Tribunal by the Commission if the Commission considers it desirable to refer the question to the Tribunal.
(2) The Commission may make such a reference only with the consent of the Attorney General.
(3) The Commission shall be a party to proceedings before the Tribunal on the reference.
(4) The following shall be entitled to be parties to proceedings before the Tribunal on the reference—
(a) the Attorney General, and
(b) with the Tribunal's permission—
(i) the charity trustees of any charity which is likely to be affected by the Tribunal's decision on the reference,
(ii) any such charity which is a body corporate, and
(iii) any other person who is likely to be so affected.
References by Attorney General

2 (1) A question which involves either—
(a) the operation of charity law in any respect, or
(b) the application of charity law to a particular state of affairs,
may be referred to the Tribunal by the Attorney General if the Attorney General considers it desirable to refer the question to the Tribunal.
(2) The Attorney General shall be a party to proceedings before the Tribunal on the reference.
(3) The following shall be entitled to be parties to proceedings before the Tribunal on the reference—
(a) the Commission, and
(b) with the Tribunal's permission—
(i) the charity trustees of any charity which is likely to be affected by the Tribunal's decision on the reference,
(ii) any such charity which is a body corporate, and
(iii) any other person who is likely to be so affected.
Powers of Commission in relation to matters referred to Tribunal

3 (1) This paragraph applies where a question which involves the application of charity law to a particular state of affairs has been referred to the Tribunal under paragraph 1 or 2 above.
(2) The Commission shall not take any steps in reliance on any view as to the application of charity law to that state of affairs until—
(a) proceedings on the reference (including any proceedings on appeal) have been concluded, and
(b) any period during which an appeal (or further appeal) may ordinarily be made has ended.
(3) Where—
(a) paragraphs (a) and (b) of sub-paragraph (2) above are satisfied, and
 
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(b) the question has been decided in proceedings on the reference,
the Commission shall give effect to that decision when dealing with the particular state of affairs to which the reference related.
Suspension of time limits while reference in progress

4 (1) Sub-paragraph (2) below applies if—
(a) paragraph 3(2) above prevents the Commission from taking any steps which it would otherwise be permitted or required to take, and
(b) the steps in question may be taken only during a period specified in an enactment ("the specified period").
(2) The running of the specified period is suspended for the period which—
(a) begins with the date on which the question is referred to the Tribunal, and
(b) ends with the date on which paragraphs (a) and (b) of paragraph 3(2) above are satisfied.
(3) Nothing in this paragraph or section 74A of this Act prevents the specified period being suspended concurrently by virtue of sub-paragraph (2) above and that section.
Agreement for Commission to act while reference in progress

5 (1) Paragraph 3(2) above does not apply in relation to any steps taken by the Commission with the agreement of—
(a) the persons who are parties to the proceedings on the reference at the time when those steps are taken, and
(b) (if not within paragraph (a) above) the charity trustees of any charity which—
(i) is likely to be directly affected by the taking of those steps, and
(ii) is not a party to the proceedings at that time.
(2) The Commission may take those steps despite the suspension in accordance with paragraph 4(2) above of any period during which it would otherwise be permitted or required to take them.
(3) Paragraph 3(3) above does not require the Commission to give effect to a decision as to the application of charity law to a particular state of affairs to the extent that the decision is inconsistent with any steps already taken by the Commission in relation to that state of affairs in accordance with this paragraph.
Appeals and applications in respect of matters determined on references

6 (1) No appeal or application may be made to the Tribunal by a person to whom sub-paragraph (2) below applies in respect of an order or decision made, or direction given, by the Commission in accordance with paragraph 3(3) above.
(2) This sub-paragraph applies to a person who was at any stage a party to the proceedings in which the question referred to the Tribunal was decided.
(3) Rules under section 2B(2) of this Act may include provision as to who is to be treated for the purposes of sub-paragraph (2) above as being (or not being) a party to the proceedings.
(4) Any enactment (including one contained in this Act) which provides for an appeal or application to be made to the Tribunal has effect subject to sub-paragraph (1) above.
Interpretation

7 (1) In this Schedule—
"charity law" means—
(a) any enactment contained in, or made under, this Act or the Charities Act 2005, and
(b) any rule of law which relates to charities, and
 
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"enactment" includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978), and includes an enactment whenever passed or made.
(2) The exclusions contained in section 96(2) of this Act (ecclesiastical corporations etc.) do not have effect for the purposes of this Schedule.""

Lord Phillips of Sudbury moved, as an amendment to Amendment No. 50, Amendment No. 51:

Line 23, at end insert ", and


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