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Charities Bill [HL]

My Lords, I thank my noble friend for the way in which she has introduced this Bill and in so doing thank those responsible for it, particularly the Law Commission, the Charity Commission, the Office for Civil Society and the Consolidation Committee under the chairmanship of the noble and learned Lord, Lord Carswell. Consolidation is an often thankless task and I sympathise with the poor old parliamentary draftsmen who on such occasions get nothing but brickbats. He, she or they have done a sterling job in pulling together the 200 plus pages that constitute the Bill. As my noble friend said, it is vital that Parliament never loses sight of the nature of the charity and voluntary sector which is, as its name implies, made up of volunteers. Ninety-five per cent of all charities in this country have no paid staff and the overwhelming majority of trustees are volunteers—there is just a tiny handful of exceptions. I suspect that every Member of this House is trustee of at least one, and in many cases, many charities. The charity sector is the jewel in our national crown. It is that which keeps us going in hard times; that which keeps us from getting cynical; that which gets us out and about contacting fellow citizens whom we would normally come nowhere near. The Minister said why the Bill does not consolidate the fundraising provisions in Part 2 of the Charities Act 1992 and in the Charities Act 2006. I will read in Hansard what my noble friend said but at first hearing it sounded a convincing explanation of why the consolidation has not occurred. It has disappointed very many people. I am sure that my noble friend Lord Hodgson of Astley Abbots will have something to say about that when he speaks. Certainly, the Charity Law Association is very disappointed about that important aspect of charity law not being within this Bill. I do not instantly see why it could not have been consolidated and if it proves the case that on review large parts of it are abandoned or changed, you can as well change this consolidation Bill as you can change the 2006 Act. I know that the Minister is keen to address any issues that are raised in this House, particularly those which will clarify even further the consolidation Bill. Make no mistake, it will make a huge difference. Many solicitors I know who try to help local charities but know very little about charity law will be extremely grateful for this legislation. As the Minister said, the basis on which consolidation measures are brought forward is that they do not change substantive law. I will, therefore, refer in detail to the opening clauses of the Bill in that regard. To enable the Minister, her very helpful Bill team, the parliamentary draftsmen and this House to get to grips with my rather gritty points. I am afraid that I need to set out my observations in unremitting detail. I have hitherto raised these issues with the noble and learned Lord, Lord Carswell and the Bill team. In short, the key definitions in the Bill are not as clear as they could and should be. They affect the whole interpretation of the Bill. Key to this are the unnecessary distinctions made in the first three clauses between ““charitable purpose”” and ““charitable purposes””. Clause 1(1)(a) refers to ““charitable purposes”” in defining what is meant by ““charity””. Clause 2 is headed, ““Meaning of ‘charitable purpose’””. Clause 2(2)(a) refers to ““charitable purposes””. The heading to Clause 4 begins, ““Charitable purpose””, and the heading to Clause 11 is ““Charitable purposes””. Clause 3 takes the biscuit and has it both ways. The heading is, ““Charitable purpose: purposes which can be charitable purposes””. Clause 11 purports to define ““charitable purposes””, "““In the rest of this Act””." That implies that there are different definitions of ““charitable purposes”” in Clauses 1 to 10 from those in Clauses 11 to 358, plus the 11 schedules. Schedule 11, which contains an index of defined expressions, hedges its bets and refers to ““charitable purpose or purposes””, directing the reader to Clauses 2(1) and 11. For those in the Chamber who are still listening and think that I am splitting hairs, I say that we lawyers thrive on hairs. Furthermore, the courts will aver that we parliamentarians do nothing in vain; we may do it vainly, but not in vain. The difference between singular and plural must be taken as having significance—and I believe that it does. I return to Clause 3, which is crucial and contains the 13 main purposes of a charity. Noble Lords will recollect that the clause heading is, ““Charitable purpose: purposes which can be charitable purposes””. I can find no reference in the 2006 Act, or in any other pieces of legislation consolidated in the Bill, to the quizzical qualification, ““can””. What can one make of something that ““can”” be a charitable purpose? The headings to Clauses 2 and 3 seem mutually inconsistent, the former being the same as Clause 2 of the 2006 Act and the latter containing that brooding word, ““can””. I turn now to another issue. I wonder whether the Bill is clear enough in mentioning only in Clause 1(1)(a) the need for a charity to have exclusively charitable purposes. Although it may be arguable, if one follows through the interlocking of the first three clauses of the Bill—with a towel around one’s head, I may say—that the need for a charity to be established for charitable purposes only works through the remainder of the clauses, I prefer the approach of the Charities Act 1993. There, the general interpretation section at the end—Section 97—defines ““charitable purposes”” as, "““purposes which are exclusively [charitable purposes as defined by section 2(1) of the Charities Act 2006]””." That last phrase was inserted by the 2006 Act. I draw the attention of the Minister and the House to an obscurity that exists in relation to what law is being applied in the Bill. Clause 2 makes it clear in two places that it is, unsurprisingly, the current law of England and Wales. In Clause 3(1)(m)(i), one finds a reference to ““the old law””. I think I know what the draftsman means, but I am not sure how many other people will, and I would like to be sure that what I think it means is what it means. Finally, I cannot resist pointing out that Clauses 4(1) and 4(5) are superfluous, particularly in the light of Clause 2(1)(b). I apologise profusely for the turgid nature of my contribution to this debate, but at least there are 10 colleagues in the Chamber who have had to suffer my meanderings. I am grateful for the opportunity.