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Baroness Howe of Idlicote: I, too, support the noble Lord, Lord Swinfen, in his amendment. I spoke on the same subject at Second Reading and in Committee before the Bill was amended. The case for the
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amendment has been put brilliantly not only by the noble Lord, Lord Swinfen, but also my noble friend Lord Dahrendorf.
It is important to encourage charities. There have been comments about past behaviour, and this would be one way to reassure charities that the future will be different. We have had a firm assurance from the Charity Commission and the new chairman about future behaviour, but including these words in the Bill would do a great deal to reassure everybody. I do not see the logic of refusing the amendment.
Lord Hodgson of Astley Abbotts: I support my noble friend in his Amendment No. 17. Indeed, I rang the Public Bill Office yesterday to ask to add my name to it but was told that unless another amendment was tabled, it would not, quite rightly, reprint the Marshalled List merely to add my name in one place. So my name does not appear, but it is there in spirit.
The Government are to be congratulated on having added subsection (4) of new Section 1D on page 7, covering best regulatory practice. However, the insertion of the words, "so far as relevant" seems to introduce a weasel factor, which we could do without. It would be much better and clearer if the phrase "so far as relevant" was removed and we made it clear that these regulatory practices have effect peradventure and that there is no way that anyone can ease out of them.
Lord Phillips of Sudbury: I support Amendment No. 18. While I think that Amendment No. 17 is unnecessary, Amendment No. 18 is important for all the reasons advanced by those who have spoken thus far. Let me add to the point of the noble Lord, Lord Dahrendorf, by saying that this is a citizens' Bill; it will not, I hope, be confined to the legal profession and other specialists.
A great many voluntary organisations and thousands of small charities will have recourse to the Bill. We can be quite sure that the Charity Commission, quite rightly, in the vast amount of guidance and literature that it pumps out on its website, will emblazon the words of the Bill on crucial parts of its guidance and advice. Although it is always difficult to alight upon the particular collection of adjectives that you want to embody the virtues that you are seeking to uphold, I think that to omit "fair and reasonable" is a bit perverse. If it is said that the words are impliedwhich is truemy answer is that as so many other virtues are implied but are on the face of the Bill, these should be included as well. Including these words will support confidence in the Charity Commission, not dent it. I hope that the Government will be minded to do so, although I sympathise with the problems of drafting this part of the Bill, which must have been taxing.
Lord Howard of Rising: I support my noble friend Lord Swinfen in introducing the word "reasonable". When the Bill was discussed previously in Committee there was a certain reluctance by the Government to include that word, and it is difficult to understand why it should not be included if, as the Government claim, there
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is already a duty to be reasonable. There are many small charities and the Charity Commission is always quite free and easy in telling them what to do. The presence of the word "reasonable" would give charities the confidence to stand up to an organisation that has an inclination to do its own thing rather than support those who are giving.
I see the intent behind Amendment No. 17, and I reassure the noble Lord, Lord Hodgson, that those are not simple weasel words, or the weasel factor. We entirely agree that when the commission is regulating it must apply the principles of best regulatory practice in performing its functions, as the noble Lord, Lord Swinfen, has made plain. We have, however, added this new duty to do precisely that, and to make it absolutely clear.
The qualifier of "so far as relevant" is necessary because the commission's functions go wider than its regulatory functions. It is worth noting that the word "functions" in new Section 1D has a wider meaning than the phrase "general functions" in new Section 1C.
Among its functions the commission prepares an annual report, recruits staff and performs other functions that are not regulatory in nature but ancillary to regulation. I assure noble Lords, and I hope that the noble Lord, Lord Swinfen, will agree, that it would not be appropriate to apply the principles of best regulatory practice in those kinds of instances. That is why additional words have been added.
I hope that I have reassured noble Lords that the Bill is drafted to ensure that the commission applies best practice principles to all its regulations. The amendment is therefore not needed. I know that that issue was given support by the noble Lord, Lord Dahrendorf, and the noble Baroness, Lady Howe.
I now turn to Amendment No. 18, which drew the most supportparticularly by the noble Lord, Lord Howard of Rising, who added his voice last. We have debated the two little words "fair" and "reasonable" on several occasionsmost recently on Second Reading on 7 June. The Government have given their view many times, and I invite the House to consider the comments of my noble friend Lord Bassam at col. GC 305 in Grand Committee on 23 February, and to the relevant parts of my noble friend's letter, which was sent to all noble Lords who spoke on Second Reading on 7 June. A copy is in the Library.
I shall summarise. We are in no doubt that the commission, like other public bodies, already has a duty in administrative law to use its powers reasonably. They are as affected by that wide body of jurisprudence as any other public body. We do not think that there is any need to include a statutory provision to give the commission that duty.
If Parliament felt it necessary to give the commission that duty through the Charities Bill, the implication would be that Parliament did not see the commission as being under that duty at present.
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It is not a question of feelings; the duty exists now. The commission must behave reasonably. We do not think that adding the words "fair and reasonable" to the words,
Indeed, if the noble Lord, Lord Lester, were here, he would probably give us an exposition of what "proportionate" means. If you have to behave proportionately, a fortiori the facts speak for themselves and you have to behave reasonably.
The words already in the Bill are powerful. We listened to the concerns last Session and amended the Bill accordingly. I thank noble Lords for the compliment in relation to that, but we do not see the need to amend it further. Because the matter is already covered, we are not minded to accept the amendment.
I hear, too, what the noble Lord, Lord Swinfen, said about the dissatisfaction with the commission. Those figures are certainly new to us and we do not recognise those issues. Ninety-three per cent of charities that have use of the commission's services are satisfied according to the commission's figures. It was right for me to put that on the record.
Lord Swinfen: I thank all those who spoke in this short debateparticularly those who supported my amendments. The noble Baroness, Lady Scotland, is of course doing her duty as a Minister. I note from being in your Lordships' House for the past 28 years that Ministers in this House are never allowed to give way on any single point. That seems to be a rule, especially in Committee.
Baroness Scotland of Asthal: In this Bill there have been innumerable instances of the Government giving way. We have listened very carefully, and the amendment gives voice to the fact that we gave way last time. There comes a point, however, when we must say that this is now a reasonable accommodation and that the facts are well supported. It is just that that is where we are now.
Lord Swinfen: Fair enough. The Government have moved some way on the Bill. As the noble Lord, Lord Phillips of Sudbury, said, it may be perverse not to include the words "fair and reasonable", particularly as that would give a great deal of comfort to a large proportion of the charity world.
With regard to the comments of the noble Baroness on "relevant", I am not a lawyer, but they sounded a little pedantic. It may be a nice legal point that, as a non-lawyer, I do not understand. My father who was a barrister probably would have understood, and my grandfather, who was Master of the Rolls, probably would have understood even better. I am not a lawyer and I have no intention of becoming one. I would probably not be accepted or pass the exams in any case.
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I feel that "fair and reasonable" should be on the face of the Bill. It is not my intention to divide the House tonight, but I reserve the right to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
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