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Division
No.
2]
Blackman-Woods,
Dr.
Roberta Question
accordingly negatived.
The
Chairman: It will not surprise the Committee to know that
I have already decided that we shall not debate clause stand part. If
anyone has anything to say, they had better say it, with one
caveat—they had better say it in order; otherwise I shall stop
them.
Mr.
Turner: I beg to move amendment No. 12, in
clause 7, page 7, line 43, at
end add— ‘(5) The Commission
has power to award compensation when a complaint is upheld against its
actions.”.’. I
shall refer briefly to amendments Nos. 14 and 16, which would give the
tribunal the same
powers. The Charity
Commission has its own complaints procedure and the tribunal, which we
will discuss later, will be only a process for determining legal
challenges to the activities of the commission. It will not be a place
for determining whether the commission has mistakenly gone down the
wrong road, has been guilty of maladministration or has handled things
in an unfortunate manner. Those decisions will remain within the remit
of the commission and its independent complaints reviewer and, in due
course, of the parliamentary
ombudsman. My noble
Friend, Lord Swinfen proposed in another place to set the independent
complaints reviewer on a statutory footing. He said that that would
create “a truly
independent mechanism for charities, trustees andothers to
challenge the Charity Commission when it is apparently guilty of
maladministration or acting unfairly, unreasonably and
disproportionately”—[Official Report, House of
Lords, 12 October 2005; Vol. 674, c. 379.].
He supported that assertion by pointing
out that the independent complaints reviewer is forbidden to recommend
to the commission the payment of compensation. The independent
complaints reviewer can, I understand, recommend the making of a
consolatory payment—that is, a payment for distress or possibly
for inconvenience caused by the commission’s conduct. I am told,
however, that the reviewer cannot make awards of compensation for
financial loss. The amendment would permit it to do so.
The amendment fits into the
larger picture in that a number of cases go to the ombudsman from time
to time, and the ombudsman must consider whether the respondent, which
is the commission, has acted—I suppose one might say—even
fairly reasonably within its terms of reference. However, in cases in
which the commission is not entitled to make a payment of compensation,
it cannot consider making such a payment, so it is not possible to take
the commission to the parliamentary ombudsman when it makes no such
payment—although it can be taken to the ombudsman for failure to
make a consolatory payment.
I am concerned that the absence
of power to pay compensation filters through to the ombudsman. The
ombudsman can require compensation when maladministration has been
demonstrated, but injustice does not always follow maladministration.
Sometimes it does, and sometimes it does not, but the ombudsman can
require compensation only when there is a finding of maladministration.
Anyway, why should one have to go to the ombudsman for compensation? It
might be that the commission would admit that there had been
maladministration, but would not admit—because it is not
entitled to do so—to an obligation to pay compensation. It would
be perverse if one had to go to the ombudsman to say, “Well, the
commission admits maladministration, but only you can award us
compensation.” That is why I tabled the
amendment.
Martin
Horwood: I think that the amendment comprehensively fails
the Cheltenham principle in that, although it might express a desirable
objective of some sort, it does not seem to me to be necessary or
necessarily harmless. It puzzles me on three counts. First, there seem
to be a lot of other bodies, quite apart from the ombudsman, who could
more appropriately award compensation if complaints were upheld against
the Charity Commission than the commission itself. The Bill provides
for the charity tribunal, and there is also the independent complaints
reviewer and the courts. Secondly, it would be a uniquely charitable
act to award compensation against oneself, as in effect the amendment
would require the commission to do.
On a more serious level, there
is an obvious risk of conflict of interest that would offer a field day
for lawyers who might wish subsequently to challenge a compensation
award. Finally, it is a bit odd for a regulator to award compensation.
I am not sure what the precedents are for that. I know that Ofwat can
fine water companies, although it seems extraordinarily reluctant to do
so most of the time, but the idea that it can pay them is not a
precedent that I would want to set. The amendment is rather
mistaken. Tom
Levitt (High Peak) (Lab): The hon. Gentleman and I can
find a common cause on the amendment. Did he also note that the hon.
Member for Isle of Wight rightly said that compensatory payments were
likely to be more than consolatory payments had been in the past? The
proposal seems to be an uncosted commitment by the Conservative party.
Is not making uncosted commitments normally the role of the Liberal
Democrats?
Martin
Horwood: The hon. Gentleman caught me to make a political
point just before I sat down.
Peter
Bottomley: The argument can go further than the case made
by my hon. Friend the Member for Isle of Wight. Let us remember the
Thomas Coram Foundation, which was given many valuable objects by its
creators. It became, in effect, a museum as well as a child care and
family support organisation. The trustees wanted to separate off the
art and, all bar one of them, came to an agreement. The Charity
Commission agreed with the majority of the trustees and the dissenting
trustee then went to the Law Officers and a Law Officer interfered. I
think that it was the Solicitor-General , although I am open to
correction. It is
difficult to imagine that a Law Officer would get something wrong or
unnecessarily cause expense to people in respect of the power of
consolatory payment or compensation payment, but would the Government
feel able to make a payment of either compensation to put the trustees
back to where they were in respect of the costs to which they were put?
The Minister might want to mull over that with his
advisers.
Edward
Miliband: The hon. Member for Worthing, West always seems
to ask a difficult question just before I am about to stand up. I shall
consider it further. It does not sound like a good idea, but I shall
find more justification for why that is
so. The commission
already has the power in common with other Departments to pay
compensation for losses suffered by members of the public or
organisations as a result of maladministration in its work. As members
of the Committee have said, the public or organisations can pursue
complaints about maladministration through the commission’s
internal complaints procedure, the independent complaint reviewer and
the parliamentary ombudsman. As the hon. Member for Isle of Wight said,
the independent complaint reviewer has the power to recommend a
consolatory payment in recognition of the anxiety and distress caused
by maladministration. It is worth saying that the commission has never
yet refused a recommendation from the ICR to make a consolatory
payment. Complainants
are not required to use the ICR service and can seek referral to the
parliamentary ombudsman. There are no restrictions on the ombudsman in
terms of recommending compensation for actual financial loss, save that
she would have to be satisfied that a quantified loss resulted from
maladministration on the commission’s part. Overall, the
amendment would not be necessary. Guidelines and the powers already
exist for the commission to take such action and there are a set of
established complaint mechanisms under clause 8 to make it happen. I
hope, on that basis, that the hon. Gentleman will withdraw the
amendment.
Mr.
Turner: The Parliamentary Secretary has given a clear
assurance that the commission has the power to pay compensation. That
was not my understanding and, on the basis of that assurance, I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
7 ordered to stand part of the Bill.
Clause
8The
Charity
Tribunal
Martin
Horwood: I beg to move amendment No. 85, in
page 8, line 16, leave out second
‘of’ and insert
‘made or not made
by’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No.
86, page 8, line 17, at end
insert— ‘(ab) such appeals
and applications as may be made in relation to any decision or activity
consequent to any decisions, orders or directions of the Commission,
and’. No.
69, page 8, line 20, at end
insert— ‘(c) such appeals
and applications as may be made to the Tribunal, in respect of
decisions, orders or direction not made by the Commission which could
reasonably have been made by the
Commission.’. No.
87, page 8, line 20, at end
insert— ‘(d) any appeal or
application as may be made to the Tribunal relating to any decision
made by the Secretary of State under this
Act.’. No.
19, in
schedule 4, page 91, line 13, leave
out from ‘matter’ to end of line 29 and
insert— ‘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 taken 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,
and (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.’.
Before we proceed, I have another
little note on procedure. If the hon. Gentleman wishes to move any
other amendments than the lead one, he will need to give me advance
notice so that I would be able to say no courteously. If the hon.
Gentleman leading for the Opposition had wished to move amendment No.
19, he, in turn, would need to give notice, but it would not be called
now. It would be called formally when the schedule to the Bill to which
it refers is reached much later in the proceedings. He would still need
to give notice to the Chair of his intention now. I hope that is clear.
We will now discuss amendment No.
85.
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