Martin
Horwood: I agree with the hon. Member for Isle of Wight
that this is one of the most important amendments that we are
considering today. I remember, long ago, back in 2002, when I worked as
a mere grubbing consultant advising charities on their fundraising
strategy, that there was the possibility of a Cabinet Office strategy
unit report on the voluntary sector. That report eventually resulted in
this Bill. However, years later, we are still trying to get it on the
statute book. That report recommended the creation of a suitors fund.
That suggestion was supported widely by charities, including the NCVO,
and many of our noble friends in another place, including Lord Phillips
of Sudbury, whose opinions I always value and often agree
with.
As the hon. Member for Isle of
Wight said, the response by Lord Bassam of Brighton in the House of
Lords was wildly unrealistic. The idea that small charities would have
the confidence to take on the possible costs of taking a case to the
tribunal and that, if they had limited funds or their funds were
stretched in that year, they would have to rely on the intervention of
the Attorney-General or prove that their case was exceptional to the
satisfaction of a legal aid body, is hopelessly
unrealistic.
3.30
pm The suggestion
has had widespread support. It is unfortunate that it got lost on the
way to another place, and there is a possibility that that was a result
of the Treasury being rather worried that it was some kind of blank
cheque. The reason for the slight difference between our amendment No.
80 and Conservative amendment No. 17 is that we insert some reference
to the value of the fund.
Edward
Miliband: Liberal Democrat
responsibility.
Martin
Horwood: Absolutely. We always like to cost our proposals
and to have them fully examined from a financial point of view. That is
certainly the responsible thing to do. It is a serious point; if the
reason for the opposition to the idea was the Treasury’s worry
that the fund might be a blank cheque and an open-ended pot of money
for charities to bring every complaint possible, I am sure that all
members of the Committee and most Members of the House would be open to
whatever methodologies or processes that the Government wish to propose
that would enable that to happen. I caution the Minister not to dismiss
the idea too frivolously. It was in the original strategy unit report
and, as I have said, has been widely supported in the sector. There is
obvious justice and reason behind its inclusion in the
Bill.
Mr.
Bone: This fund would allay, to a large extent, some of
the fears that I previously referred to, and it all goes back to the
classic case. Most charities are small. The fund is irrelevant to big
charities as they have all sorts of departments and can arrange their
affairs rather like big business—big business has no problems
with anything and has departments for this, that and the other. Small
businesses cannot take remedy because they do not have the time or the
money, and the fund at least helps with the money side of the
situation. They need only a relatively small amount at least to have
the injustice heard. There is a lot to recommend the idea, and I hope
that the Minister can take it on board.
Peter
Bottomley: When the Minister is explaining why the
strategy unit’s recommendation is not being taken forward, he
might explain, too, whether the idea was that a suitor had to be the
charity itself, an individual trustee, or an outsider with an interest
in what the trust ought to be doing. He will not be surprised that I
have more than one brother-in-law. The one I have in mind is Dr. George
Reid, who is a trustee of the Alleyn’s estate. He went to the
High Court—not
at a cost of £30,000—and received an honourable mention in
the Charity Commission’s report 15 or 20 years ago. He had the
sort of case that it was proper to have taken, about a failure to get
agreement among the trustees, and would clearly have been regarded as a
suitor. That may or may not have been a suitable case, but the
interesting question is where the limitation comes in and where would
it have been if the strategy unit’s approach had been taken
forward. If the Minister is going to resist the amendments, he could
explain to the Committee whether that is being done purely on the
grounds of cost, whether he thinks they are unnecessary or whether
there is some other reason of which we have not
thought.
Edward
Miliband: Again, the hon. Member for Worthing, West
appears just before I stand up to speak. I believe that his family goes
off for a ceremonial cricket match each year, which is well
known.
Peter
Bottomley: A hockey match.
Edward
Miliband: I may have got that slightly wrong.
First, I do not think
that the strategy unit simply recommended a suitors fund. As I
understand it—I shall check on this point—it saw it as an
alternative to the tribunal and a way of funding people to go to the
High Court. We can be sympathetic to the intentions behind the
amendments, but the problem is essentially raised because the
Conservative amendment is open ended while the amendment tabled by the
hon. Member for Cheltenham is limited. In neither case is there any
sense of the criteria that would be used for who is eligible and who is
not. Therefore, one faces a problem with the hon. Member for Isle of
Wight’s amendment. The costs are potentially unlimited and it
could be a lawyers’ charter. I am not saying that it would be
one, but it could be. I admire the hon. Member for Cheltenham’s
fiscal responsibility—that is a new-found thing for the Liberal
Democrats—but he does not answer the question as to who would
get that £100,000, who one would turn away and how one would
judge that point.
Having said all that, I am in a
charitable mood and understand the intentions behind the proposal and I
do not want to dismiss it out of hand. I know that the question of the
suitors fund has been long standing. I will take the issue away and
come back on Report. I do not make any promises on that point because
it is difficult. The example of employers tribunals and issues of legal
aid are informative in that respect but I will take the issue away and
consider
it.
Mr.
Turner: I am grateful to the Minister. I beg leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn.
Martin
Horwood: I beg to move amendment No. 79,
in page 10, leave out lines 17 to
36.
The
Chairman: With this it will be convenient to discuss
amendment No. 18, in clause 8, page 10,
line 36, at end
insert— ‘2E Investigation by
Parliamentary Commissioner for Administration
Notwithstanding the provisions of this Part, the
Parliamentary Commissioner for Administration shall have power pursuant
to section 5(1) of the Parliamentary Commissioner Act 1967 (c. 13)
(matters subject to investigation) and Schedule 2 to that Act
(Departments etc subject to investigation) to investigate any action
taken by, or on behalf of, the
Commission.”’.
Martin
Horwood: Amendment No. 79 is a probing one that challenges
the rather extraordinary proposed section 2D, which is one of the
amendments to the 1993 Act, and on page 10 of the Bill. Having set up a
panoply of commission and appeal processes and the opportunity of all
the types of processes that we have been discussing at inordinate
length today, it creates another provision that adds intervention by
the Attorney-General on top of that. I would love to hear the
Government’s justification for
that.
Mr.
Turner: My amendment No. 18 tries to avoid doubt, which is
always a dangerous thing to do. It occurs to me that the parliamentary
commissioner may be capable of resolving issues that might otherwise go
to the tribunal. I say that with a sense of inquiry. Is the Minister
sure that any issue that is reasonably likely to be raised can either
go through the complaints procedure to the parliamentary commissioner
or to the tribunal? If that is the case, would it be beneficial for the
parliamentary commissioner to be able to look at questions of law as
well as those of
administration?
Peter
Bottomley: First, could the Minister explain whether under
the proposed section 2D(4)(a) and (b), the Attorney-General’s
power to intervene—which I welcome—extends to being able
to order a discontinuation of an action or is it a matter of helping
the tribunal in one sense or another? Second, does the Minister regard
this as a suitable occasion to say whether—although this goes
slightly beyond the clause—if the Charity Commission causes a
High Court action to be taken against a charity, the Attorney-General
has the power to order that kind of action to be
discontinued?
Edward
Miliband: The hon. Member for Worthing, West is continuing
his enviable record of asking difficult questions—I preferred
his last intervention to this one. Let me provide an explanation on
those two points. The first amendment seeks to remove the
Attorney-General’s right to intervene in any proceeding. That is
in the Bill because the Attorney-General has a unique—some might
say slightly odd—and important position in charity law. He is
the protector of charity on behalf of the Crown. It is important to be
clear about that.
Those powers for the
Attorney-General to intervene do not mean that he represents either
party in the dispute, but that he is supposed to have a non-adversarial
role, essentially as a friend of the court, in representing the
interests of the beneficiary. That is a long-standing feature of the
law in this area. It is not about the Attorney-General somehow moving
in on the case in an adversarial way; the role is that of a
non-adversarial friend of the court. I believe that it is widely
acknowledged to be a perfectly sensible idea
that he should represent a beneficial interest of the charity and that
the tribunal can take his views into account. To answer one question that was
put to me by the hon. Member for Worthing, West, I am pretty sure that
the Attorney-General cannot overturn the tribunal’s decisions. I
shall have to come back to him later about his second brain
teaser.
I move to amendment No. 18,
which was tabled by the hon. Member for Isle of Wight. Let me be clear
on this. As I explained earlier, the tribunal considers legal
decisions, and the ombudsman has the power to investigate cases of
maladministration. I understand that the hon. Gentleman wants to be
assured that that is the case, and I can assure him that it is. The
danger of his amendment is that it seems to open up a case in which a
legal decision is being considered by the tribunal, to being considered
by the ombudsman at the same time. That would be slightly odd, because
one wants the tribunal to be able to take its course and for any claim
of maladministration then to be made, but not for those processes to
run in parallel.
Peter
Bottomley: The Minister said that he might come back to a
question that I asked. I am perfectly happy to wait until our debates
on clause 38, especially if we get to consider amendment No. 122, which
might be helpful to his
advisers.
Edward
Miliband: I am most grateful. I give
way.
Mr.
Turner: It is certainly not my intention that cases should
be considered in parallel or consecutively bythe tribunal and
the ombudsman. My concerns are partly to do with the position of the
independent complaints reviewer. I understand that the parliamentary
ombudsman can consider cases only if domestic remedies have been
exhausted. I assume that the work of the independent complaints
reviewer is considered to be a domestic remedy for that purpose, and
that one would therefore first have to go through the complaints
procedure and then the independent complaints reviewer. The Minister
shakes his head, so it seems that that is not the case.
It is the case, however, that a
large number of complaints that have been to the ombudsman have been
rejected as being out of the ombudsman’s jurisdiction. The
figures that I have concerning cases since 1993 are that out of 102
cases, 63 have been rejected as being out of jurisdiction. It might be
that those were all legal cases or that they were complaints about
charities that should never have gone to the ombudsman; the ombudsman
does not know, although the latter is assumed. Where an easier and
simpler remedy than the tribunal is available, which I think that going
through the ombudsman might be, it should be available despite the fact
that the tribunal is
available.
Edward
Miliband: I think that that was the longest intervention
in world history, Mr. Gale.
The
Chairman: I was thinking of it as a
speech.
Edward
Miliband: I shall enter it into the “Guinness Book
of Records”. I
should like to clear up one point. There is the internal complaints
procedure of the commission, there is the independent complaints
reviewer, and there is the ombudsman. It is true that an individual
must go through the internal complaints procedure of the commission,
but I understand that they also have the option of going to the ICR or
the parliamentary ombudsman. I do not have an answer on the specific
figures that the hon. Gentleman cites, but I suspect that all the cases
concern legal decisions that can now go to the tribunal; I hope that
the tribunal will help in that respect. I hope that that answers his
question
sufficiently. 3.45
pm I can now answer
the hon. Member for Worthing, West, because inspiration has struck. The
Attorney-General has no power to order the discontinuation of a case
before the tribunal or the High Court. Discontinuation will be a matter
for the party bringing the proceedings; otherwise, the tribunal or High
Court could of course order the case to be
dismissed.
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