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Lord Goodhart: My Lords, I am very grateful indeed to the noble and learned Lord for the undertaking that he has just given. I accept that it is an entirely proper way of proceeding in the matter and it will relieve me of any need to press the matter further in Committee.
The Lord Chancellor: My Lords, I am grateful to the noble Lord for the position that he has just expressed and always adopts. He shares with me an enthusiasm to get on to the statute book in a crowded legislative programme as many Law Commission Bills as possible where they are genuinely uncontroversial. This means that to make the Bills attractive to a parliamentary fast track, as both he and I want, we must abstain from the controversial so that what we individually regard as the best does not become the enemy of the good, and the good gets on to the statute book what is genuinely uncontroversial and beneficial.
I also note the noble Lord's observations on the drafting of Clause 31(1), and I am happy to look at that. Another substantive point raised by the noble Lord, which I hope I summarise accurately, is that trustees should be able to make contracts on behalf of the trust as an entity and to limit their liability to the trust assets, unless they have acted improperly. I accept that that, too, is an issue which should be referred to the Law Commission, together with his point about trustee exemption clauses.
The noble Lord, Lord Bruce of Donington, was concerned that under Clause 28 a presumption might arise that a professional who offered specialist advice had expertise that he did not really possess because not all professionals were expert in a range of specialisms in increasingly complex areas. I shall also consider that point. The noble Lord is welcome to have access to my officials to elaborate his views further than he was able to do in our short debate.
The noble Lord, Lord Dahrendorf, raised a number of points. He will forgive me if I do not deal with all of those matters. I also offer him access to my officials so that he may elaborate his views. He asked whether the Bill would allow programme-related investment. Yes, it will. Can trustees adopt total return policies? I am content to refer that question to the Law Commission.
I regard the question whether or not trustees should be remunerated for their services as having very wide policy significance. That is a matter which may well require significant consultation that cannot now be undertaken without prejudice to this Bill. The Bill will make the remuneration of professional trustees possible in certain circumstances. As to the remuneration of lay trustees--where there is a departure between the noble Lord and the noble Lord, Lord Phillips of Sudbury--I undertake to the noble Lord, Lord Dahrendorf, to consider the issue. The noble Lord is also invited to have access to my officials, who will co-operate with him, so that he may elaborate his concerns more fully.
The noble Lord, Lord Phillips of Sudbury, dealt with the remuneration of charitable trustees. As I said in my opening speech, the Government will introduce an amendment to put beyond doubt that there is no intention to allow for the remuneration of lay charitable trustees. I hope that in due course the noble Lord will be persuaded of the wisdom of allowing the Secretary of State under Clause 30, following full and proper consultation, to make arrangements to rationalise the positions of the two classes of trustee, so far as is appropriate, without the need to resort to primary legislation. I remind the noble Lord that what is proposed by Clause 30 meets with the approval of the Delegated Powers and Deregulation Committee, subject to the amendment which I have undertaken to table.
The noble Lord also expressed concern about the possibility of allowing professional charitable trustees to be remunerated for doing things which might be done by lay trustees who would not be remunerated. I appreciate that the noble Lord has a strong personal conviction that what is proposed is foreign to the altruism associated with charitable trusts and their central ethos. My inclination remains that these are matters which need to be considered, not at this stage but in due course, by the Secretary of State when he or she comes to consider making orders under Clause 30(3)(a) which allows for the making of different provisions for different cases. I am content
The noble Lord also touched shortly on the topic of the apportionment of capital to be treated as income, particularly as it relates to permanently endowed charities. I have some sympathy with the suggestion that there should be fall-back powers to deal with circumstances in which trust documents set up a scheme of investment, the result of which is that the capital portion grows out of step with the income portion and, it can be said, unfairly benefits future rather than current beneficiaries. I do not dispute that the law of apportionment is in some disarray, but I believe that it is more productive in terms of resources, policy development and parliamentary time to tackle the whole issue rather than deal with it in a piecemeal fashion. The Charity Commission is carrying out work, including consultation, on this very topic and I do not believe that it is advisable to make statutory amendments to the powers of charitable trustees in advance of its completion. I agree that work needs to be done; Rome was not built in a day. I am willing to undertake, as I did in relation to matters of concern to the noble Lord, Lord Goodhart, that this matter should also be referred to the Law Commission. I am also content that the noble Lord should enter into discussions with my officials on how that may best be achieved.
The noble and learned Lord, Lord Wilberforce, in his welcome but unheralded intervention, was right to praise the Law Commission for its work and the Government for responding quickly. I am grateful to him for that. He made a point on which I should like to reflect further. In summary, he said that new trust instruments could act to cut down the new wider powers. Although my mind is by no means closed, my inclination is to say that this is entirely a matter for settlors and their advisers in relation to new trust instruments. For those who use the powers in the Bill, we believe that the checks and balances are about right. Again, I am content that the noble and learned Lord should either write to me or, to short-circuit matters, have access to my officials to elaborate that or any other points that he may have.
Finally, if noble Lords will forgive me for ending on a gently discordant note, some of your Lordships have been a little unkind to Parliament in suggesting that trust legislation is some kind of Cinderella whose legislative trip to the ball comes but rarely. The noble Lord, Lord Kingsland, was a little unkind to our predecessors in government. In 1996, they introduced the Trusts of Land and Appointment of Trustees Act. In 1999 this Government introduced the Trustee Delegation Act and, within six months of the publication of this Law Commission report, I have introduced this important and substantial Bill. Three important trust measures in four years seems to me clear evidence that governments of different political colours recognise the importance of the subject. Noble Lords with an interest in these matters will also note that these three legislative vehicles all arose from the work of the Law Commission, whose unique position
This Government will continue to rely heavily on the excellent work of the Law Commission in such complex areas as trust law. That is why, although I am unwilling to include in this Bill a range of the proposals made by noble Lords today so that the ideal does not become the enemy of the good, I should be happy, as I said, to arrange for discussions about the way forward if they should wish to be in touch with me or my officials.
The noble Lord said: In moving the amendment, I shall speak to Amendment No. 2. With regard to the amendments in my name, I am grateful to Sense, and in particular Caroline Ellis, for the excellent briefing they have provided. It is help I warmly appreciate.
The purpose of the amendment is to clarify and emphasise the necessity, in order to plan and provide services, for each local authority to have access to reliable statistics about numbers of deafblind people in their area. The Department of Health should also have accurate information for formulating policy and developing nation-wide deafblind services. The estimate of 40 per 100,000 people was based on the average numbers of deafblind people identified across a number of local surveys in the 1980s and 1990s. But some recent surveys have found a higher incidence.
Amendment No. 2 raises the issue of the contribution of my noble friend Lord Hunt at Second Reading. He seems to think that there is no need for specific provision for deafblind people in law. He could not be more mistaken. There is currently no requirement on local authorities in primary legislation, or by direction from the Department of Health, to identify, locate or register separately deafblind people. As the law stands, it provides no guarantee that deafblind people will be identified. I believe that that is an irresponsible omission which this House will hope to change.
The evidence and experience available to deafblind organisations point to a duty to identify and separately register deafblind people. The crux of the issue is a separate register. It is an essential prerequisite for monitoring and meeting needs, and planning service provision for those people.
Many local authorities still claim that they have few or no deafblind people in their areas. Alternatively, they say that they do not know the number. That is not good enough. Yet according to Sense, when those local authorities specifically set out to identify deafblind people, they find at least 40 per 100,000 people, if not more. If local authorities do not know how many deafblind people they have, or where they are, they are unable to provide for their needs. They are unable to monitor or assess those people. Nor will they provide the essential specialist one-to-one support services required. That is impossible, by definition.
My noble friend may have been right to say at Second Reading that only a small proportion of visually impaired people are likely to be registered, and that an even smaller proportion are hearing impaired. It is a problem, but not necessarily a barrier to deafblind registration. Nor is it an argument against registration.
The essential point is that deafblind people are a different group with distinct needs for specialist services. Being registered blind, for example, is only one way in which the deafblind person might--I emphasise the word "might"--eventually come to the attention of social services as someone who requires a different and distinct approach.
Deafblind registration is an issue of a different order. I see those people, as I am sure other noble Lords do, as having an entirely different species of disability. In the provisions of the Bill, a deafblind register would involve an identification and location exercise using a range of methods of which cross-references of existing registers are only one small part. Such exercises have involved checks on records held on elderly people and people with learning disabilities, and close liaison between social services departments, education departments, health authorities, voluntary
We need a deafblind persons register to be actively maintained because of the extreme isolation and vulnerability of deafblind people and their tendency to lose contact with local authorities, often as a direct function of their disability. It is essential that we tackle this isolation. If the House agrees to the register, local authorities will have to have a system of updating and maintaining their register which means that deafblind people are regularly monitored. Without the monitoring, the registering could simply wither and die.
Both those receiving services and those who at some future date might need help will be assisted. This is particularly important given that many deafblind people have deteriorating conditions. At one stage in their lives they do not perhaps require urgent help, but they may need it later because of the deterioration. Only by the register being kept up to date can we guarantee that they will be cared for.
The essential point of the amendments is that deafblindness should be treated as a specific, special category of disability. When it is established, the Department of Health might pursue deafblind registration as a benchmark for improving the registration of other groups. This is an opportunity for the department and the House to strike a great blow for many disabled people, but specifically today we are dealing with deafblind people. I hope that the two amendments will be accepted. I beg to move.
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