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Charities Bill [Lords]

I missed ““Thought for the Day””, which I rather enjoy, this morning, but I feel that I have more than made up for it by listening to some of the interesting contributions over the past half an hour. I am inspired by the Prime Minister’s assertion that we are best when we are boldest and it is in that spirit that I want to discuss amendment No. 1. I always think that having amendment No. 1 shows a certain keenness. Together with various progressively minded colleagues in the House, I tabled the amendment in July. I cannot say that I have checked the wording with No. 10, but, in a modest sort of way, it is in the audacious spirit that the Prime Minister calls on his Ministers to display. The amendment does not attempt to define public benefit; it merely attempts to ensure a robust application of that test of public benefit by the Charity Commission. For the first time, it would give the Charity Commission a statutory base to consider questions of access to public benefit, undue restrictions, and charges—in some cases fairly high charges—made by charities in return for their services. The supporters of the amendment are not trying to say that, for example, independent schools should not be able to claim charitable status. We are saying, as I said on Second Reading, and as we say in Yorkshire, ““You shouldn’t get summat for nowt.”” The value that independent schools, for example, get from their charitable status is £100 million. We would just like the Charity Commission to be able to encourage them to provide more community benefit for that charitable status. I congratulate the Minister on being open to discussions on the Bill over the summer and the autumn. I think that he will argue, among other things, that the amendment is unnecessary because the sentiments that it upholds are already incorporated in the concept of public benefit and the Charity Commission will be able, for example, to consider questions of undue restrictions. I want to put three points before the House to explain why I am doubtful about that and then put three questions to the Minister. Perhaps he can help to reassure me on some of those doubts. First, there is the legal base of charity law. Without detaining the House for long, I think that most lawyers would say that the available case law is pretty sparse. Andrew Phillips, an eminent charity lawyer, wrote a few paragraphs that sum that up:"““As the Charity Commission lawyers know only too well, at the very best the absence of any inclusion in the Bill of wording indicating the scope of the Public Benefit test will leave the Commission in very uncertain legal terrain when they confront, as they surely will, a few unreformed and intransigent charity hospitals and schools.""Unless Parliament remedies that—and a modest amendment will be enough to give the judges clear discretion—the government are spoiling their own reform, which is potentially a valuable one.""The legal reality, in the absence of that, is that the existing, limited case law, particularly Re Resch, leans in favour of an undemanding public interest test, making clear that there is likely to be sufficient public benefit if, for example, a hospital or school relives the exchequer and alternative state provisions, or indeed if it provides extra facilities for the user.””" What about the Charity Commission—the regulator—itself? It has had a slightly ambiguous attitude towards my amendment. Andrew Hind, its chief executive, spoke of a ““worrying lack of clarity”” in the underlying case law, and he confirmed that phrase to me in a conversation just a couple of weeks ago. Geraldine Peacock, who was chair of the commission, said that overriding any public school’s charitable status would not be possible because the Bill would not alter decisions based on case law. However, the new chair of the commission, Dame Suzi Leather, has taken a different approach. She says that she will apply the test robustly and has talked about holding seminars with stakeholders in which there will be a discussion of contemporary social mores, as she puts its, and the way in which public benefit might be defined in the modern day. Although the question of precisely how contemporary social mores would weigh in the balance against the weight of case law was somewhat left hanging in the air at the parliamentary briefing last week, I acknowledge that there are tensions—perhaps creative tensions—in the commission. What about the voluntary sector? It, too, has taken a somewhat ambiguous position. When the amendment was tabled, Stuart Etherington, chief executive of the National Council for Voluntary Organisations, warmly welcomed it. He said that it would ensure clarity. He said:"““We hope that the government accepts this amendment or comes forward with its own amendment, agreed with the Charity Commission.””" Campbell Robb, director of public policy of the NCVO, went further. As late as September, he wrote in Charity Finance that"““the introduction of a clear and meaningful public benefit test is necessary to uphold public trust and confidence in the charity. To this end we would like to see the Bill amended to see clarity around public benefit, especially in areas where high fees are being charged.””" Hon. Members should remember the name Campbell Robb because a month later the NCVO issued a more ambiguous press release saying that my amendment might be one way of providing the necessary clarity, but that holding seminars and a review after three years, rather than five years, might be another way. That was released on 16 October, and on 18 October, I was pleased to see—it is always good to see public servants doing well—that Campbell Robb was appointed director general of the office of the third sector in the Cabinet Office on a salary of £100,000 a year. I wish him well, but gently reflect on what has happened. Incidentally, I have received a whole host of faxes from voluntary organisations saying that they wished that the NCVO had maintained its original position, including the Royal London Society for the Blind and Community Matters.