Mr.
Turner: It is of course a fact that the ICR has a contract
with the Charity Commission to perform that service. Will the Minister
say whether it is still the case, or indeed whether it was ever the
case, that that contract involved an upper limit of £5,000 on
compensation?
Edward
Miliband: It is the hon. Gentleman’s turn to ask me
questions to which I do not know the answer. To my knowledge, the
contract does not involve that, but I shall endeavour to find out. I
think it is unfair to the independent complaints reviewer to suggest
that it is influenced by its contract with the Charity Commission to
find in favour of the commission, but I can find the answer for the
Committee. I suspect that there are many cases in which the independent
complaints reviewer has not found in favour of the commission and it
will want to protect its independence and reputation. Although the hon.
Gentleman did not intend to do so, I think that he has slightly
impugned the reputation of the ICR, which I suspect goes about its job
diligently. I shall
deal with the amendments by first informing the Committee of the
principles of our approach to the establishment of the charity
tribunal. I will set out the context of the amendments and explain why
we do not believe that they are sensible while, on first blush, some of
them may seem to be making a reasonable case. There are three things
worth saying about the new body. First, it is an appellate body in line
with the accepted practices of the workings of tribunals, including
employment tribunals and those covering the Land Registry. Within the
rules and procedures of tribunals that are set out by the Tribunals
Service, they operate in an accepted way. They are bodies to which
appeal can be made if it were felt that a wrong decision had been made
by a public
body. Secondly, the
decisions that tribunals consider are always—and not only in the
case of the proposed charity tribunal—legal, not administrative.
For example, the decision whether an organisation should be charitable
and whether the charity commissioners made a correct judgment is a
subject for the charity tribunal. However, the slow processing of an
application form and whether that was negligent is not. Members of the
Committee might wonder whether the charity tribunal will have enough to
do. I suggest that they look at column 1 of the table under schedule 4.
The table runs to eight pages and, by my count, deals with about 50
different classes of
decisions. A wide range
of legal decisions is made by the commission that the tribunal will be
entitled to consider, including whether an institution is put on the
register of charities, decisions that are made about trustees,
inquiries into charities and, indeed— to answer the hon. Member
for Cheltenham—the appointment of receiver-managers referred to
on page 95 of the Bill at column 1. It is
headed: “Order
made by the Commission under section 18(1) of this Act in relation to a
charity” and includes
decisions made on an interim or receiver-manager
basis.
Martin
Horwood: I have two brief questions for the Minister.
First, he suggests that only formal legal decisions are subjected to
the tribunal’s review. However, page 94 refers to a decision
simply “to institute an inquiry”. That does not sound
like a legal decision to me. He seems to be putting a more restrictive
construction on schedule 4 than I thought was the
case. Secondly, I am
aware that the decision to appoint a receiver-manager is referred to
under the schedule, but we are dealing with when even the initial
decision might have been reasonable. However, the consequences of the
actions of the receiver-manager once appointed do not seem to be open
to challenge under the Bill, as drafted. If the Parliamentary Secretary
were willing to reassure me that he would make sufficient changes to
the table at some stage to allow for that, I might be
sympathetic.
Edward
Miliband: I cannot give the hon.
Gentleman reassurance on that point. The commission is operating its
legal or quasi-judicial function by making decisions, such as
instituting an inquiry, although that is referred to as a legal
decision. Indeed, it is covered in the table and considered to be a
legal decision. I cannot reassure him about the receiver-manager. He
highlighted the distinction that I am trying to draw and that all
tribunals follow between a legal decision and a challenge to a legal
decision, which is absolutely appropriate, and questions of
administration by the Charity Commission or persons that it appoints.
That is not a matter for tribunals. Tribunals make a ruling on a legal
decision made by a public body. That is not just true in this area; it
is true in respect of Her Majesty’s Revenue and Customs, the
Land Registry, which I cited, and the land tribunals, which I
understand operate in the same way. However, complaints about the
practice of administration of the body are for its internal complaints
procedures, the independent complaints reviewer, or the parliamentary
ombudsman—they are not for the
tribunal.
Martin
Horwood: I am grateful to the Parliamentary Secretary.
However, I have said that amendments Nos. 81 and 82 give examples of
how the activities I am talking about, which he has just
mentioned—for example, the decision about whether to continue
with the appointment—could be brought before the tribunal in a
way that fits with that legal
structure. The schedule
deals not just with a decision to do something, but the decision not to
do something. That principle is already conceded in the schedule, so I
cannot see the problem with extending it expressly to the decision to
continue, for instance, with the appointment of a receiver-manager
where the issue at hand, if not the legal principle, is the continuing
activity being undertaken by that
receiver-manager.
Edward
Miliband: I am trying to follow the hon. Member for
Cheltenham as best I can. Like the hon. Member for Isle of Wight in his
amendments, he is crossing the divide between legal decisions made by
the Charity Commission that are correctly challengeable in the tribunal
and administrative decisions, which are a different type of practice
and are not legal decisions in the same
way. The hon. Member
for Cheltenham cited an example from the Alzheimer’s Society,
relating to a terrible delay in something happening and said that the
commission had been negligent. That is not a legal decision that is
challengeable in the tribunal. He may have been right about the case he
mentioned—I do not know the details—but such a case
should properly be taken to the complaints procedure, the ICR and the
parliamentary ombudsman. That is not just true in respect of the
Charity Commission tribunal, but across the
board.
Martin
Horwood: I think that the Parliamentary Secretary is
wrong. A delay was not the issue in the case relating to the
Alzheimer’s Foundation; the issue was the decision not to
institute an inquiry. Decisions to institute an inquiry are dealt with
under the schedule, so they must count as legal decisions. The schedule
also deals with decisions to do something and not to do something, so
the negative also applies in
principle. However, that does not apply in the case that I mentioned.
There is no problem of legal principle in including, as is suggested in
amendment No. 85, something to allow a decision not to be made, as well
as allowing it to be made. That principle is already conceded in detail
in the schedule. I have
already tried to explain—perhaps not very well—that the
decision does not have to be a judgment on the conduct of the
administration. The decision in respect of the case that I have
mentioned would be the decision to continue with the appointment, which
would be a legal decision by the Charity Commission that may be based
on evidence from the ongoing activities. The legal decision that the
Parliamentary Secretary seeks would be the one under consideration.
Perhaps he will clarify whether the decision to appoint or not to
appoint is a legal
decision.
Edward
Miliband: I will consider the hon. Gentleman’s
point on decisions not to institute an inquiry. However, his amendment
has a far broader scope than a specific decision not to institute an
inquiry. Amendment No. 69 refers
to “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”. That covers a
range of administrative decisions that the commission could have made.
[Interruption.] The hon. Gentleman says from a sedentary
position, “decisions, orders or direction”, but that
covers a wide range of possible decisions, orders or directions that
the commission could or could not have made. It certainly goes into the
sphere of the administrative practice of the commission, which is why
we do not accept either that amendment or amendment No.
85. 2.30
pm
Martin
Horwood: I refer the Minister to proposed new section
2A(4) of the 1993 Act, which clause 8 will insert. It
states: “The
Tribunal shall have jurisdiction to hear and determine...such
appeals and applications as may be made to the Tribunal in accordance
with Schedule 1C to this Act, or any other enactment, in respect of
decisions, orders, or directions of the
Commission”. My amendment
merely repeats the positive wording of the existing
provision.
Edward
Miliband: The hon. Gentleman makes an interesting and
important point, to which I shall endeavour to return soon.
More generally, amendment No. 85
suffers from the problem that it takes the tribunal into the heart of
the administrative, rather than simply the legal, principles of the
commission. My point is that a significant delay in the
commission’s work is obviously wrong and reprehensible, but not
a matter on which the tribunal should
adjudicate.
Martin
Horwood: I am extremely grateful to the Minister for
giving way yet again, but the word “delay” was his and
not mine. The example that I quoted was
one of a decision not to instigate an inquiry, which is simply the
negative of legal principles that are already enshrined in the
schedule.
Edward
Miliband: My understanding of amendment No. 85 is that it
would go down precisely that
road. Let me move on to
amendment No. 86, which takes us to the implications of a decision, not
simply whether it was right or wrong. In our view—this has long
been accepted for tribunals—that should not be a matter for the
tribunal. The tribunal decides whether a decision was right or wrong;
it does not then consider the implications of a decision. I hope that
the hon. Gentleman will not press amendment No. 86, at
least. A similar
argument applies to amendment No. 87 on decisions made by Ministers,
because it would take the tribunal into territory which would, in a
sense, be unprecedented. The hon. Gentleman made a point about the
appointment of charity commissioners, but I do not believe that it is
the intention of Parliament that a ministerial decision to appoint
charity commissioners should be taken to the charity tribunal. If
Parliament wishes to ensure oversight of Ministers’ decisions,
it can do so in many different ways, but that is not a matter for a
tribunal that is ruling on the Charity Commission’s decisions,
just as a ministerial decision made under the Act that set up the
employment tribunal should not be taken to the employment tribunal
itself. On that basis, I hope that he will not press the
amendment. Amendment
No. 19, which was tabled by the hon. Member for Isle of Wight, presents
two problems, the first of which might be an accident, because it would
mean that the commission would no longer be the respondent to an
appeal. I am sure that that is an oversight in the drafting of the
amendment, but its effect would be to omit paragraph 1(3) of new
schedule 1C to the 1993 Act, which
states: “The
Commission shall be the respondent to such an
appeal.” I am sure that
the hon. Gentleman did not intend that, because it would mean that the
commission would no longer have an obligation to appear and respond in
person to an
appeal. The substance
of the amendment has the same problem as the amendments tabled by the
hon. Member for Cheltenham. It would extend the charity tribunal from
its locus of more than 50 classes of decision into all areas, including
administrative areas. The Government have explained why that would not
be sensible. We have
some sympathy with the notion expressed in another place that the table
in schedule 4 looks incredibly complex. When one becomes familiar with
it and realises that the challengeable decisions are listed in column
1, it begins to look less complex. The key question is whether the
guidance for people who want to go to the charity tribunal will make
clear which procedures can and cannot be taken to it. I have made
inquiries, and I am satisfied that the commission plans to issue
guidance that is more straightforward than what is in the Bill. It is
fair to say that in most cases, we would expect people who are
considering whether to take a case to the charity tribunal to consult
not the original legislation, but the
guidance.
Mr.
Turner: I cannot be sure, but I think that the reason why
the amendment would omit sub-paragraph (3) is that the amendment is
designed to give the power to request a determination and to give the
tribunal the power to make a judgment, on a general point of law where
there may be no respondent. Where there is a respondent, clearly it
would have to be the commission; otherwise, there would be no point in
appealing. To be honest, I cannot remember whether this is a drafting
error, but I know that I intended that there should be a power to
request the tribunal to make a decision, and therefore effectively to
give guidance on what the law is, even in the absence of a decision
from the
commission.
Edward
Miliband: I am not sure that I completely understood that
intervention, but that might be more to do with me than with the hon.
Gentleman. I take him to mean that he did not intend the omission of
sub-paragraph (3) to have the effect of preventing the commission from
being a respondent, and I accept that
entirely. I return to
amendment No. 69. I said that the first principle that we are applying
to the charity tribunal is that it will be an appellate body—it
will deal with appeals against decisions. That is the general rule that
we are following. Opening an inquiry, which the hon. Gentleman cited in
relation to the Alzheimer’s Foundation, is an incredibly serious
matter. The other reason why we are concerned about the amendment is
that it would essentially substitute the tribunal’s decision for
the original executive decision-making power of the commission, so that
all decisions not to open inquiries into the 150,000 charities in
Britain could be
taken—
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