Martin
Horwood: I am grateful to the Minister for his reply on
amendment No. 79. He made an important statement about the interest of
beneficiaries and the beneficial interest. I am tempted to quote an
earlier assertion of his back at him. He said that specific provisions
in the Bill reflecting the interests of beneficiaries might somehow
unbalance the legal processes or the workings of institutions such as
the commission and the tribunal, which we discussed today. If that is
the role of the Attorney-General in the Bill, and if the
Attorney-General will be minded to intervene on behalf of the
beneficial interest of charities, and not in other ways, then on
reflection I am content to withdraw my amendment, and to let the clause
survive. However, I
suggest to the Minister that there might be a bit more clarity and
transparency in the Bill specifically to reflect the interests of the
beneficiaries and the fact that they do, after all, have a champion in
this Bill. That would—if I might risk offending the Royal
Society for the Protection of Birds—kill two birds with one
stone. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. The
Chairman, being of the opinion that the principle of the
clause and any matters arising thereon had been adequately discussed in
the course of debate on the amendments proposed thereto, forthwith put
the Question, pursuant to Standing Orders Nos. 68 and 89, That the
clause stand part of the
Bill. Question
agreed
to. Clause 8
ordered to stand part of the
Bill. Schedule 3
agreed to.
Schedule
4Appeals
and applications to Charity Appeal
Tribunal Amendment
proposed: 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 take 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.’.—[Mr.
Turner.] Question
put, That the amendment be
made:— The
Committee divided: Ayes 4, Noes
9.
Division
No.
5] Blackman-Woods,
Dr.
Roberta Question
accordingly negatived.
Martin
Horwood: I beg to move amendment No. 81, in
schedule 4, page 96, line 45, at
end insert—
‘1 | 2 | 3 | Appointment
of a receiver and manager in respect of the property and affairs of the
charity under section 18(1)(vii) and section 19 of this
Act. | The
persons are— (a) any person whose powers or duties as a trustee
are performed or exercised by the receiver or manager under the order,
and (b) any other person who is or may be affected by the
order. | Power
to— (a) quash the order and (if appropriate) remit the
matter to the Commission, (b) substitute for all or part of
the order which could have been made by the Commission, (c)
direct the dismissal and replacement of the receiver or
manager.’. |
The
Chairman: With this it will be convenient to discuss
amendment No. 82, in schedule 4, page 96, line 45, at end
insert— ‘1 | 2 | 3 | The
continued appointment of a receiver and manager in respect of the
property and affairs of the charity under section 18(1)(vii) and
section 19 of this
Act. | The
persons are— (a) any person whose powers or duties as a trustee
are performed or exercised by the receiver or manager under the
appointment, and (b) any other person who is or may be affected by the
appointment. | Power
to— (a) end the appointment, (b) direct the
ending of the appointment and remit the matter to the
Commission, (c) direct the dismissal and replacement of the
receiver or manager, (d) transfer the responsibility for
paying all or part of the costs of the receiver or manager to the
Commission, (e) direct the compensation of the charity by the
Commission for all or part of the costs already incurred by the
receiver or
manager.’. |
Martin
Horwood: We have at times been a little rude about
schedule 4, particularly about its size, complexity and tables.
However, I am not sure that I entirely go along with what has been said
about it; I am quite impressed by it. I would rather like to
congratulate the drafters of the Bill on their clear setting out of
what can and cannot be presented to the tribunal, who can make the
applications, and what the outcomes may be. It is quite easy to follow,
and it is therefore quite easy to spot when things have been missed
out. Earlier, we
discussed amendments through which I was trying to introduce
exactly what I am trying to introduce here, and various objections were
made to my broader approach in the main part of the Bill. The
suggestion was made that my earlier amendments might offend various
legal principles, in terms of not being legal decisions or drawing in
administration. I hope that these extremely detailed amendments to the
schedule will not commit any of those crimes. I urge the Minister not
to dismiss them frivolously, because they deal with extremely serious
issues that may—as we
know from the Association for Charities document—affect the very
existence of some charities, and certainly the value of their assets.
The costs incurred in the course of the appointment of a receiver and
manager may sometimes hugely exceed those expected, even by the charity
commissioner, at the time of appointment. There are major issues at stake.
The Charity Commission is an extremely powerful body and it is right
that we should address in detail the decisions that it makes. Amendment
No. 81 covers the appointment
of “a receiver and manager
in respect of the property and affairs of the
charity”, which is a
decision analogous to others set out in the schedule. The mention of
the “continued appointment
of a receiver and
manager” in amendment No.
82 carries no suggestion of drawing the tribunal into the matter of
administration, covering merely the whether the continued appointment
is appropriate. Evidence might be brought to bear from the consequences
of that continued appointment, and that is as it should be. That would
surely apply also to any of the other matters listed in the
schedule—it is difficult to see how they could be discussed
without reference to their consequences.
I give you notice that I shall
want to move amendment No. 82 when I may, Mr. Gale. The amendments
contain important detail and I hope that they avoid the legal
difficulties on the grounds of which the Minister objected to earlier
amendments.
Mr.
Turner: I would like to support the amendments. Judging by
the information that I have been given, I do not think that there can
be a more serious decision affecting a charity than the appointment of
a receiver and what we now hope to call an interim
manager.
Edward
Miliband: To short-circuit the discussion, amendment No.
81 simply duplicates an existing provision in the Bill. It is rather
opaque, so I shall set it out for the Committee. It is on page 95,
column 1 and relates to an
order “made by the
Commission under section 18(1) of this Act in relation to a
charity.” It is precisely
about the appointment of a receiver-manager. I thought that I would
short-circuit what would no doubt have been an eloquent speech by the
hon.
Gentleman.
Mr.
Turner: I am grateful, and I am sure the Committee is
equally grateful that it will be deprived of my eloquence on amendment
No. 81. On amendment
No. 82 the matter to consider is not only the appointment of a
receiver-manager but the decisions that follow it, if decisions they
be. I assume that the commission has a duty to take care of the assets
of charities, but in a case that has been brought to my attention the
continued appointment of an interim manager for the Cancer Care
Foundation led to expenditure of £325,000 in about eight months
by PricewaterhouseCoopers and additional £300,000 costs to the
charity’s trading company. That is a considerable
amount of money even to what appears to be a charity with a certain
amount of money in the bank. It had £800,000 but was forced by
the decision of the Charity Commission to spend £325,000 of
it. It may well be
that there was a good case for the appointment of a receiver-manager,
but I am inclined to ask whether there is a process for deciding
whether there was a good case for the continuation of that appointment.
That is why I intend to support amendment No. 82. I also ask whether
there is a good case for better monitoring of the expenditure of the
receiver-manager at the charity’s expense. If a charity has
£800,000 in the bank and donors are bringing in £50,000 a
month, as I believe they were for the benefit of the hospices supported
by the Cancer Care Foundation, one has to ask why that money was not
going out to the hospices supported by the Cancer Care Foundation, one
has to ask why that money was not going out to the hospices and whether
the donors were receiving good value for the £325,000 that
PricewaterhouseCoopers billed the charity.
Of course, there may be a good
case for the appointment and the continuation. However, the question is
whether the decision is legally right and whether the expenditure
should be undertaken without proper
review.
Peter
Bottomley: Will the Minister make clear whether there is a
difference in law, or in the Bill, between references in column 2 to
“trustees” and the amendment’s mention
of “any person whose
powers or duties as a trustee are performed”?
For me, there is an ambiguity, which I am
sure is clear to experts, about whether column 2 refers to the
majority, all or two of the trustees, or whether a single trustee could
be counted as the
“trustees”.
Edward
Miliband: The hon. Member for Worthing, West is keeping up
his fine record of asking difficult questions. I shall endeavour to
come back to him on that
point. I have already
dealt with why amendment No. 81 is unnecessary; I assure the Committee
that what it requires is already in the Bill, albeit rather implicitly.
On amendment No. 82, there is a distinction that is difficult to draw,
but it is nevertheless there. The hon. Member for Isle of Wight put it
well in talking about the decisions taken by the interim manager.
However, that is a question of the conduct of the charity.
We would not suggest that the
charity tribunal intervene in the decisions made by the charity
trustees or persons acting in lieu of the charity
trustees—namely, the interim manager. I do not think that the
hon. Member for Cheltenham would support the idea that the charity
tribunal should have jurisdiction over what the trustees do.
The interim
manager is appointed in lieu of trustees. I appreciate that the
distinction between the original appointment of the interim manager,
which is a legal decision, and the question of conduct and decisions
made by the manager, may be hard to discern. However, there is a
distinction and it is right to hold to it.
The Charity Commission has a duty
to conduct periodic reviews of receiver managers and what they are
doing, and—this may offer last-minute reassurance to the hon.
Gentleman—if, on review, the commission decides not to end a
receiver manager’s appointment, that decision can be taken to
the charity tribunal. In other words, there is an appeal against the
Charity Commission’s decision to continue with the interim
manager after a periodic review.
| 
