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Lord Phillips of Sudbury: I am grateful to the noble Lord for his careful and considered reply. One might be tempted to say thank you and to withdraw the amendment, but I want to put in his mind the thought that if this were a decision of the tribunal which is pending, the Charity Commission is quite a large beast these days. Someone in one part of the jungle may not know what is happening in another part of it. Perhaps I should rephrase that: someone in part of the enterprise may not know what is going on in another part. Given that, I question whether the Minister is correct in his assumption that this would be known throughout the organisation.
This clause gives the Charity Commission a new power to enter premises for certain purposes and on certain conditions. These powers could be used in a draconian or even what some might call an oppressive way. Amendments Nos. 131 and 132 attempt to introduce some balancing restrictions on the commission.
Since 1960 the commissioners have had an enforceable power to call for documents and to search records, but they have never had the power to enter premises to take possession of documents or information. So the power to enter premises is a significant new development. Amendment No. 131 would insert a new condition for the commissioners,
We understand that the commission needs to have its investigatory powers extended, but this should not be extended to give the commission the power to invade the privacy of a trustee's home or private quarters. Without this amendment, the commission would have the power to do just that.
The amendment would add that it must also be carried out within seven days of its issue. The power to search should not be open-ended, and giving the time-frame within which the search should take place adds a proper degree of balance. No swords of Damocles, please.
The right to privacy and the restriction on search time-frames are two points that need to be taken very seriously when we consider this clause. We have discussed many times the dual role of the Charity Commission, which has to balance its duty to regulate clearly and firmly with its duty to encourage the development of the charitable sector. The power to enter premises represents a major increase in the powers of the commission and the boundaries that Amendments Nos. 131 and 132 would enforce help to keep an appropriate balance. I beg to move.
My reason for parting company with the noble Lord, Lord Hodgson, on whose side I normally ride, is very simple. It was interesting to note that the joint scrutiny committee had two or three recurrent bees in its bonnet, one of which was the preservation of the honour and integrity of the charity sector as a
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whole. It was universally agreed that public trust in charity was priceless and must be maintained. However, I am afraid to say that it is my experience that where there is an occasional rotten appleyou do; it is bound to happenone of the commonest ways that a rotten trustee tries to secret away his or her dishonesty is by removing to their home or other premises the kind of evidence that would be sufficient to subject them to prosecution.
If Amendment No. 131 were agreed, it would remove one of the most powerful and important tools that the commission should have in order to get to the root of any abuse of charity assets. I am comforted by the fact that no such search can be undertaken without the issue of a warrant by a justice of the peace. That is a very real safeguard and can be given only after information on oath has been provided to the justice of the peace concerned by a member of the commission's staff. On those grounds, I must oppose the amendment.
Lord Bassam of Brighton: The noble Lord, Lord Phillips, has made most of my argument for me. Public trust and confidence is of great value and must be highly prized. For that reason, there have to be effective means of carrying out investigations. To be frank, the easiest thing to do with documents which might in some way implicate a person is simply for him to take them away to his home or to another office. Seeking to restrict the application of an entry warrant to the premises of a charity would make it easy for someone to get around it and, if you like, defeat the object of the investigation. Given that, I do not think that we could possibly accept the amendment.
It is saddening that we need to have such a power at all, but we must be realistic in our approach. As we observed at the outset of our debates, we are not talking about a small enterprise here, rather we are considering a £35 billion a year sector. That is big business indeed. For that reason and for those of practicality, we must reject Amendment No. 131.
Lord Hodgson of Astley Abbotts: I said that we wanted to extend the restrictionthat is to say, the warrant must specify that the search must take place at a reasonable hour and within seven days of its issuebecause we did not want it to be left open-ended. There have been cases under other legislation where warrants have been signed on an open-ended basis. As I said, we wanted no swords of Damocles hanging over any potential trustee or potential charity.
Lord Bassam of Brighton: My response to this amendment is slightly more positive: it is not unreasonable that there should be some limit on the period for which the warrant should have effect. I am
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not sure that seven days is the right period; there may be good reasons for requiring a slightly longer one. I propose that we look further at this amendment.
It is perhaps worth pointing out that the code of practice under the Police and Criminal Evidence Act 1984 (PACE) provides that a search warrant should be exercised within a month of its being issued. I should like to consider the point further. As ever, I am grateful to the noble Lord, Lord Hodgson, for raising the issue, because time is an important one. I can understand his desire to pin down the process and ensure that it is effective and timely.
Lord Phillips of Sudbury: I think that there is an issue. When you get a crook as a trustee, he or she will try to evade execution of the warrant. It is the daily fare of solicitors to try to serve proceedings on recalcitrant defendants. A little leeway is needed.
Lord Brooke of Sutton Mandeville: I wish to ask an innocent, lay question. I totally followed the arguments of the noble Lord, Lord Phillips, and the Minister. But I assume that there are places other than the man's home to which the documents might have been removed, and that therefore there is a possibility that the warrant will cite a number of premises that should be inspected. Am I right in thinking that the protection against fishing expeditions lies with the justice of the peace examining whether there is justification for choosing particular premises?
Lord Bassam of Brighton: I am sure that that is right; common sense tells us that it must be. I am sure that no JPs worth their salt would want to give a warrant at large, and that they would want to understand its exact effect.
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