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The noble Lord said: My Lords, in moving Amendment No. 58, I shall speak also to Amendment No. 60 and I hope it will be convenient if I respond in advance to Amendment No. 59, which is tabled in the name of the noble Lord, Lord Hodgson.
Clause 26 provides a new power for a member of staff of the Charity Commission to enter premises and seize documents and other information where a magistrate has issued a warrant. The Bill currently requires the Charity Commission staff member who enters premises under the warrant to prepare a written record of particular facts and activities and of the items seized. If requested to do so he must give a copy of the record to the occupier, or someone acting on behalf of the occupier. However, the Bill does not currently specify when the record must be prepared or given.
We have had generally a very healthy debate about this power. I think that it can fairly be said that we have already included a number of safeguards in response to understandable concerns that have been raised. These amendments further extend those safeguards.
In Committee, the noble Lord, Lord Swinfen, suggested that the record required by subsection (6) should include the names of the persons accompanying the person authorised under the warrant. We agree with that and have brought forward Amendment No. 58 to give effect to it.
Amendment No. 60 responds to the concerns raised in Committee that the record should be prepared by the commission's member of staff whilst he or she is on the premises and given to the occupier, or his representative, if requested before leaving the premises, unless in either case it is not reasonable or practical to do so.
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However, it is only fair to say that I have some difficulty with Amendment No. 59, which is proposed by the noble Lord, Lord Hodgson of Astley Abbotts. It would place the commission's member of staff under a duty to provide the record to the occupier, regardless of whether or not the record was requested. As I have said in previous debates, the reason this clause gives the occupier a right to ask for the record, rather than putting the commission member under a duty to provide it without being asked, is that the commission member may not know who the legal occupier is, and therefore would not know to whom the record should be given.
The Bill as drafted leaves it to the occupier or someone acting on his behalf to identify himself or herself and to require production of the record, which, under our Amendment No. 60, the commission member would be required to provide prior to leaving the premises. It is because we believe that this practical difficulty could arise, and in the knowledge that our government amendments will further strengthen the safeguards in this clause, that I suggest that the noble Lord, Lord Hodgson, when he moves his amendment, considers the position again and withdraws the amendment. I beg to move.
Lord Hodgson of Astley Abbotts: My Lords, we have been around this particular issue in the past. I recognise that the Government have made substantial steps to even out the balance which exists in those new and fairly draconian powers. The Law Society among others circulated amendments which, in large measure, the Government have now accepted.
Having had the previewthe trailer before the main feature, so to speakI accept the problem about the Charity Commission's staff knowing who the occupier is. However, I would have thought that some of that would have been obviated by the fact that we are talking about entry in respect of premises where the operations of the particular charity take place, and therefore that charity either has directors if it is a company or trustees if it is not a company. Serving a notice on them might be a way around that problem.
which my amendment seeks to leave out. The problem is with exactly who has to do the requiring? Must it be someone on the premises? Can it be done by phone, fax or e-mail? Should it not be an automatic requirement for the commission to have to give a copy to somebody connected with the charity, whose premises it is presumably entering to examine or investigate?
One of the troubles is that these powers cover domestic as well as business premises. As we have heard from many noble Lords during our debates, many charities are run from trustees' homes. Faced with a search, which by its very nature will be abrupt and sudden and may well be of his or her home, what concerns me is how an unsophisticated trustee will know that he or she is entitled to ask for such a record. I was hoping that the Minister would be able to find some way through this, except for the difficulty he has
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perfectly fairly posedthat in the event of the occupier not being clear, the commission would have to serve the notice on an official of the charity in question, such as a director or trustee.
The noble Lord, Lord Phillips, has talked about small, local charities. Such people are unsophisticated and will not know their rights. This is going to be a pretty brutal occasion where the door is opened and people come to look through the house, and I doubt if they will know that they can ask for these particular documents. Excepting the practical difficulty that the Minister has quite rightly drawn to our attention, I hope that he will find a way at least to make sure that some official of the charity which is being investigatedbe it a trustee or directorwill have to get a copy of what has gone on, as provided by new Section 31A(6). That will be a good way to get round the problem with difficulties of identification that the Minister has drawn to our attention.
Lord Swinfen: My Lords, I wonder if I may raise a point which is not strictly on the amendment that is being moved but on new Section 31A(9) in Clause 26, because the wording is really rather clumsy. It reads:
"Once it appears to the Commission that the retention of any document or device has ceased to be so necessary, it shall arrange for the document or device to be returned as soon as is reasonably practicable".
I am not asking for an answer now because I am throwing a fast ball at the Minister and it is late at night. But could he please have a look at this and make the wording far more positive, such as "the commission shall return the document", not "arrange" for it "to be returned"? The wording on the Bill is not firm enough and it does not put the onus on the commission to make sure that the documents or devices are returned. I know that this cannot be dealt with in this House at this stage, and cannot be dealt with at Third Reading because it would be a new matter, but perhaps the Minister could have a look at it and have the matter seen to in the other place.
Lord Phillips of Sudbury: My Lords, I support what the noble Lord, Lord Hodgson, said. I agree with him entirely that, in reality, occupiers of premises will not know their rights under these provisions. Will the Minister take counsel on whether there should be a practice, at least, of leaving a notice at the premises concernedit could be posted through the doorindicating that there are rights under the legislation for the occupier to have copies of the matters concerned, so that even if that does not happen at the occupier's request at the time, he or she will be aware that one can ask for them after the event? It is not a small matter. It is too true that many people have no clue about what the law is. Can the Minister give us any comfort on that?
Lord Bassam of Brighton: My Lords, looking at the wording, and in the light of the remarks of the noble
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Lord, Lord Swinfen, I would like to give the matter more thought. I am grateful for the noble Lord's suggestion that I respond in writing, as that would be a more appropriate approach. Having listened to all three noble Lords' remarks, I think that we have reached the end of the road in terms of what we can achieve by amendment.
I understand the point that the noble Lord, Lord Hodgson, makes. Such situations can be very confusing. Most cases will not involve a knock on the door at night, but they will probably involve some discomfort to those whose premises are searched. As the noble Lord, Lord Phillips, said, in the real world people probably will not know their exact rights in the circumstances. There may be confusion about who is responsible for what. There might be a relative wandering around who has absolutely nothing to do with the circumstances of the search.
The situation would probably be best dealt with in guidance. The noble Lord, Lord Phillips, has made the point several times previously, and I do not disagree with him, that more must be done to ensure that trustees, directors and others involved with charities are more aware of their rights and responsibilities. I want to give the matter further thought. I do not think that we can perfect any amendments that give any greater comfort or security to those who might be affected. However, we are sympathetic to the issue, which is why we have moved in the general direction that we have taken in our amendments, and tried to take on board concerns expressed at earlier stages.
That is about as far as I can go today. Having said that, I want to press our amendments, and I hope that the noble Lord, Lord Hodgson, will withdraw his, because we have made progress. We will see what more can be achieved administratively and in guidance.
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