Neighbourhood Planning Bill

Baroness Deech Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

[Lord Cameron of Dillington (CB)]

My Lords, I come at this from a rural angle. In most cases a village or market town pub is an essential part of its community. We do not have many social venues or centres for leisure activities in the countryside; there are very few cinemas or discos, and in most places even restaurants and the like are quite rare. So, all too often the pub is the only hub where all those over 18—and even those who are younger, if they come with their families—can mix and socialise, and generally create the social cohesion that is the vital glue for any community. It is often in the pub that friendships and relationships are formed between young and old, rich and poor, that have such beneficial effects outside of it. People get together after a discussion in the pub to improve their community by, for example, painting the village hall or mowing the village green. And when old Mr Jones is sick or needs a lift to town, he can call on friends of all ages, who he has probably only met in the pub, to help him. As I say, the pub is all too often the only hub.

As I am sure your Lordships know, Pub is the Hub was a movement started at around the turn of the century to encourage publicans and their pubs to branch out and become more than just an outlet for beer, alcohol and food. As a result of this initiative, many entrepreneurial pub landlords started to provide other services to their communities, including morning coffees, internet cafes, office services such as photocopying, et cetera, and their pubs even became part-time village shops and post offices. These added services helped many pubs to survive where otherwise they might not have done so. The point is that when a pub is becoming run down and underused, it is often not because it is inherently a dying asset. All too often, it just needs a new, vibrant, energetic, imaginative, entrepreneurial and, probably, charming landlord, under whom it would suddenly flourish Sometimes planners, and others, cannot see that but it really can happen in the most unlikely venues. Pubs can flourish in the most unprepossessing buildings in the remotest of spots just because they provide a unique service that attracts customers from a variety of backgrounds and distances. I could probably take noble Lords to a few—provided they buy the first round, of course.

I know that the Minister will say that villagers can always apply to have their pub registered as an asset of community value. But—apart from all the expense and complications that the noble Lord, Lord Kennedy, highlighted—what average rural villager thinks in advance like that? For them, the pub is there; it has always been there, and, of course, it always will be. But then suddenly, a brewery or an ageing landlord decides to cash in on the high price of houses—as opposed to their currently non-profitable pub—and, often, it is too late for villagers to do anything: a vital asset is gone, and almost certainly for ever. This is because, in the same way that nowadays you can never get permission to open a village blacksmith, it is quite unlikely that you could overcome the unnecessary fears of neighbours if you proposed to have a new pub in your village. Only the existing ones will be able to offer this vital service.

It seems strange to me that a pub does not need planning permission to convert to a house when other less important changes in use clearly do require it. It seems that the most vital asset of all for a community—the pub—can be thrown on to the scrap heap without so much as a murmur from the planning department. This will not do.

[Baroness Deech (CB)]

My Lords, I support the amendment and every word uttered by the noble Lords, Lord Kennedy and Lord Cameron. I am not exactly a drinker, let alone of real ale, even when it is warm, but living where I do I have sadly seen the onward march of more and more soulless developments. Much-needed housing—of course, there is a housing crisis—is often built contrary to the wishes of the locality and the people living there. With the march of housing, the hubs that have made living in certain parts of the country so agreeable have been lost. It is all the more important to keep the local pub, whether in a suburb or village, as more housing is added. Those pubs add to integration and help to cement a community.

I find it particularly upsetting, having participated in neighbourhood planning, that the wishes of the residents of a locality are so often ignored. It is very important, before any pub is removed or changed, that the local residents be consulted and that we all do our best to promote more integration and mixing as more housing is built, as it will continue to be in the years to come. I hope the Government will accept the amendment.

[Lord Shipley (LD)]

My Lords, I support Amendment 60 but speak to Amendment 61 in my name, which broadly reflects the amendment moved by Greg Mulholland MP in the other place a few weeks ago.

I too am grateful for the advice given by CAMRA. It has summed up the case in three lines:

“The removal of Permitted Development Rights relating to the demolition and change of use of pubs will substantially reduce the need for Asset of Community Value nominations and reduce the associated burdens on communities and business”.


There are other considerations about the rights of neighbourhoods and communities and so on, which I fully support.

The previous Government introduced the asset of community value register. It is particularly impressive that it has been reported that 2,000 pubs are now registered as assets of community value. It raises two questions: first, it could be argued that because 2,000 have been registered, the system therefore works. The other way of looking at it, which I prefer, is to say that if 2,000 pubs have been felt by their communities and neighbourhoods to need registration, that is a problem because the volume is so great. A simpler method of dealing with the problem is required.

I understand that the London Borough of Wandsworth has applied Article 4 direction in the borough. I am particularly interested in that as a solution. As I well know from having to introduce Article 4 directions in my own council in Newcastle years ago, it is a very complex procedure. Anyway, it is quite difficult to introduce Article 4 in a rural area; it suits an urban area better.

I hope the Minister will take this seriously, because we will be back to this on Report. There is a simple remedy. The amendment moved by the noble Lord, Lord Kennedy, and my amendment provide that simple remedy, which is to remove permitted development rights. If the Government did that, someone wishing to change the purpose of a pub to something else would have to apply for planning permission, which seems to me entirely reasonable. I hope that when we get to Report, the Minister will see the justification for this case.

Policing and Crime Bill

Baroness Deech Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

Moved by

[Baroness Deech]

173: After Clause 126, insert the following new Clause—
“General duties of licensing authorities (No.2)
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) securing accessibility for disabled persons.””

[Baroness Deech (CB)]

My Lords, I am sorry to say that the noble Baroness, Lady Campbell, whose name is also on this amendment, is unwell. Her eloquence will be sorely missed this evening.

These five words which the amendment would insert would provide a simple and effective improvement in life for disabled people, and would fulfil one of the key recommendations of the Lords Select Committee on the Equality Act 2010 and Disability, which I have had the privilege of sharing. This amendment is a narrowed-down version of Amendment 210 in Committee. It is supported by the Access Association and the Equality and Human Rights Commission. It originated with a suggestion put to the Select Committee by a spokesperson for the National Association of Licensing Enforcement Officers, who has also written in support. The Select Committee on the Licensing Act 2003 has no objection to it.

It is not just about disability; it is about all of us as we get older. It is about mainstreaming accessibility into everyday life. The ability—indeed, the right—to participate in various everyday areas of life can depend on the ability to access public spaces and buildings. Moreover, under the United Nations Convention on the Rights of Persons with Disabilities, the UK bound itself to ensure that disabled people enjoy the rights to equal access set out in its Article 9. The Government have been criticised by the inquiry set up under that convention. Here is a way to show that that criticism is unjustified.

One-quarter of the disability discrimination-related inquiries to an Equality and Human Rights Commission helpline relate to failures to make reasonable adjustments. That is a big problem, and it is clear that some service providers do not understand what they have to do. If the amendment were passed, applicants for licences would have to include consideration of the requirements of disabled people from the outset in the application process. Accessibility could then be included in the licence conditions and would become just a regular objective.

In the debate in Committee, the Minister was against this on two grounds. The first was that it duplicated existing requirements in the Equality Act, which puts duties on employers and businesses to make reasonable adjustments for disabled people. I cannot agree. The amendment would make those reasonable adjustments an anticipatory duty—that is the important aspect—not a burden on disabled people after they find they are excluded. The duty would be anticipatory and it would shift the burden off the shoulders of disabled people to the local authorities. Moreover, the existing duties of licensing authorities in Section 4 of the Licensing Act refer to,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

The amendment is about the prevention of harm to disabled people. Duplication is clearly not a problem as there are scores of other statutes referring to health and safety, children and nuisance.

The amendment would not require extra activity by licensees or the regulation of activity. It is only about planning in advance for access. It would mean that businesses and premises, knowing that inspection was coming, would turn their minds to accessibility in advance of being found wanting. It would end the scenario of a disabled person turning up at, say, a restaurant and finding it inaccessible, with no remedy in hand, and the humiliation and embarrassment that follow. The local authority would be able to impose conditions on the licence. The ultimate sanction, but an exceptional one, would be a refusal to extend the licence or grant it until those adjustments were made. This is of course in a framework of what is reasonable.

The amendment is narrower and more focused than its earlier incarnation. Disabled people know that mere guidance to owners of premises does not work. The Equality and Human Rights Commission has explained that it is unable to monitor compliance. This is the chance for the Government to show their commitment to narrowing the disabled unemployment gap. It would be in line with the Prime Minister’s policy of allowing everyone to go as far as their talents will permit. The Government should not speak with forked tongue on this policy. It would add not to the burden of licensing authorities but only to their objectives. It is disabled persons who bear the burden at the moment, and they are harmed by the existing barriers to access. Licensing is about preventing harm.

The second argument from the Government against the amendment was that it was singling out businesses and premises for compliance with the Equality Act. However, businesses and premises are being asked not to do anything extra but simply to put their minds to accessibility. This is not a party political matter; it is about common sense backing up compassion. It is about self-interest as we all get older. It is about legal requirements that already exist. It is about decency. I cannot imagine that it will be opposed in any quarter. This House should be seen to stand up for people who need it. This fits entirely with the mission on most sides of the House. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank the noble Baronesses, Lady Deech and Lady Thomas of Winchester, not only for their powerful speeches in this debate but for taking the time to speak with me over the past few weeks on the subject of this amendment. I also commend my noble friend Lord Shinkwin for the sheer quality of his speech and everyone who has spoken in this debate for their persistence in seeking to secure the rights of disabled people.

I am very sympathetic to the issues that have been raised on this matter. Licensed premises such as pubs, restaurants, theatres and cinemas are places where many of us choose to socialise and are therefore an important part of our daily lives. Too many of these venues are difficult for disabled people to access. The same is true of other, non-licensed businesses, too. The issue before us is whether we should use the regulatory framework provided for in the Licensing Act 2003 as a mechanism to enforce the provisions of a quite separate piece of legislation.

The noble Baroness, Lady Deech, and others have answered this question in the affirmative, arguing that it should not be left to disabled people denied access to licensed premises to have to fight on their own to secure their rights. The contrary argument, which I set out in Committee, is that this amendment is seeking to skew the regulatory regime in the 2003 Act and use it for a purpose for which it was never intended. The amendment potentially puts us on to a slippery slope. If we can use the 2003 Act to enforce the obligations placed on businesses by other enactments, where does this stop? Are licensing authorities then to be charged with, for example, ensuring that pubs and restaurants are paying the minimum wage or complying with other aspects of employment law?

While it could be argued that the particular challenges faced by disabled people make this amendment a special case, we should not seek to downplay the fact that there will be a cost to business. I accept that the amendment does not place any new direct obligations on licensed premises as a class of business, as they are already subject to the requirement to make reasonable adjustments. However, if we are expecting licensing authorities to act as an enforcement agency in this regard, there will unavoidably be a cost to them in discharging this new function. As the cost of the licensing system properly falls on licensees rather than the council tax payer, consequently any increase in costs for licensing authorities will need to be passed on through increased licensing fees. We must take this into account when considering the amendment.

I have heard the powerful voices expressed in the debate here today. I cannot ignore the strength of feeling in your Lordships’ House. I believe that there is scope for compromise around possible amendments to the Licensing Act, which would work with the grain of the existing licensing regime. I cannot say more at this stage, as there is further work to do to scope such a possible compromise, but nor can I give the noble Baroness, Lady Deech, any undertaking today that I will be able to bring forward a government amendment at Third Reading. I hope, however, that the noble Baroness will agree to move forward on the basis of the preliminary discussions that we have had earlier this afternoon and, if not, perhaps we should come to a decision on her amendment today.

[Baroness Deech]

My Lords, I know that the Minister is sympathetic, but I still find the arguments unpersuasive. The Licensing Act is already used to enforce other Acts, for example, about children. If there is a cost to business, or a cost that is going to be passed on, are we to say that we can never make improvements for disabled people because it might cost somebody something? That simply will not do. I believe the Minister is suggesting that any amendment that the Government may bring forward would not remove the burden from disabled people but require them to make representations, make phone calls and use the internet to fill in forms and so on—when we know very well that even if you are able, trying to deal with local authorities on this sort of thing can be a nightmare. I am simply saying that access for disabled people—and, as the noble Baroness said, for the elderly, which is all of us eventually if not already—should be mainstreamed.

All parties in this House, some more than others, claim to have as their raison d’être improving the life of the disadvantaged and the vulnerable. To refuse to do this when presented with a straightforward, effective amendment is incomprehensible to me and goes against what I believe this House stands for. The amendment would make adjustments anticipatory and remove the onus from disabled persons. I do not believe that any compromise that the Minister might offer, well-disposed though she is—I know that she spent a lot of time on this—would meet that bill. Given the mission of this House, I do not think that we should talk the talk; I think that we should walk the walk. On that note, I wish to test the opinion of the House.

Policing and Crime Bill

Baroness Deech Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Baroness Deech]

210: After Clause 122, insert the following new Clause—
“General duties of licensing authorities
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) compliance with the provisions of the Equality Act 2010.””

--- Later in debate ---

[Baroness Deech (CB)]

Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.

Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.

With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.

This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.

The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.

[Baroness Thomas of Winchester (LD)]

My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:

“Catch a falling star and put it in your pocket

Save it for a rainy day”.

This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.

The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:

“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.

She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:

“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.

We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.

--- Later in debate ---

[Lord Clement-Jones]

I shall read her response, but it was very short.

[Baroness Deech]

My Lords, I am grateful to the noble Lords who supported our Amendment 210, but clearly I am disappointed with the Government’s answer, which has not moved from the response issued several months ago, before the change of Administration. I thought that we were convinced: given that this Government have a target of halving the unemployment rate of disabled people and that the Prime Minister said in her first statement on taking office that this Government should work for everyone and allow everyone to reach their potential, surely they must move on this.

I have not heard a single argument to undermine the thrust of Amendment 210. The background is that disabled people gave evidence that the Disability Discrimination Act was a much better tool than the Equality Act, because the latter puts all the protective characteristics together and thus, although well-meaning, does not give sufficient weight to the needs of disabled people, who need a bit more than just equality.

Moreover, I take issue with the Minister’s saying that the amendment would simply duplicate the Equality Act. It does no such thing. First, it shifts the burden of enforcement away from the individual who is discriminated against to the local authority. That is the main aim. A pledge, I am sorry to say, is insufficient. If the entertainment industry gives a pledge, or if we all pledge to pay tax or obey immigration law, I do not think any Government would say, “A pledge, that’s just fine”. As has been proven, there are areas where one needs the teeth of the law. I appeal to the Minister: this Government should not appear hard-hearted. The Select Committee is offering them a way to respond to the United Nations’ inquiry which has so severely criticised this country’s approach to the needs of disabled people.

I have heard no reason why Amendment 210 should not pass. I cannot believe that the Licensing Act 2003 Committee, thorough though it is, will unearth any more than the Select Committee on equality and disability did. Once more, I appeal to the Government to accept the amendment and if they do not, I will emulate the advice given by the noble Baroness, Lady Thomas, and pursue this star all the way to the other end of the rainbow.

[Lord Brooke of Alverthorpe]

My Lords, when I was speaking, the Minister was nodding so much that I thought she was agreeing with everything. I now realise she was trying to fend off her cold, but I was pleased to hear that the Government are not unsympathetic to the health objective in Amendment 211, and I am aware of the difficulties of putting this in place; it is not easy. I am also aware of the work being done by Public Health England and others in association with the Home Office. I look forward to that materialising and hope it will be presented to the Select Committee.

I did not get an answer to my point about Manchester, to which I thought she was nodding. May I speak to her separately about that away from the Chamber, when we might try to explore using that new initiative for something quite different? I will look carefully at what she had to say on the children’s amendment and decide what further action, if any, I can take.

[Lord Clement-Jones]

My Lords, I may have blinked and missed the extended response I am sure the Minister gave. However, as I recall, it was simply that we do not need another licensing objective. Will she consider more carefully the question of whether other things could be done to encourage licensing authorities to take cultural matters into consideration in licensing, and in particular offer to meet those with an interest in this area, such as UK Music and the Music Venue Trust?

[Baroness Deech]

I beg leave to withdraw the amendment.

Amendment 210 withdrawn.

Electoral Status: Online Access

Baroness Deech Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Bridges of Headley]

The noble Lord makes some very good points. My answer is yes to the second two regarding encouraging enrolment. As regards the first, I would like to wait for the findings of the investigation before I commit to a timeframe. Clearly, however, there is a need to look at the issue of duplicates, as raised by the Electoral Commission and as the Government have made clear on many occasions. I thank the noble Lord for his constructive comments to me privately about this.

[Baroness Deech (CB)]

My Lords, will the Minister spare a thought for the approximately 16% of the population who have no access to the internet, many of whom are probably elderly and not so well off, and people who have conditions that prevent them using it? For the next few years, foreseeably, there needs to be parallel provision.

[Lord Bridges of Headley]

The noble Baroness makes an extremely good point and it is one that I have raised with officials. Electoral registration officers are able to accept applications in person or on the phone, and Electoral Commission guidance encourages them to offer this service to those unable to make an online or paper application for any reason in order to meet their equalities obligations. As I said, the noble Baroness makes an extremely good point and it is one that I am convinced the Electoral Commission will heed.

Charities (Protection and Social Investment) Bill [HL]

Baroness Deech Excerpts

Monday 20th July 2015 Lords Chamber

Moved by

[Baroness Deech]

18: After Clause 12, insert the following new Clause—
“Damages for torts by trustees or their employeesDamages for torts by trustees of unincorporated charities or their employees
(1) The Charities Act 2011 is amended as follows.
(2) After section 284 (when and how section 282 resolution takes effect) insert—
“284A Damages for torts by trustees or their employees
(1) This section applies where—
(a) a trustee of an unincorporated charity is liable in tort by reason of his conduct in his capacity as a trustee of that charity; or(b) a person employed by a trustee or trustees of an unincorporated charity is liable in tort by reason of his conduct in the course of that employment.(2) Where this section applies, a person entitled to damages for the tort shall be entitled to recover those damages from the assets of the charity.
(3) Subsection (2) shall not affect the liability of any trustee, employee, or any other person.
(4) Where a claim is made under subsection (2), the provisions of the Civil Liability (Contribution) Act 1978 shall apply as if the charity had legal personality.
(5) Where a claim is made under subsection (2), or a contribution is claimed from the assets of a charity under subsection (4), the charity may be named as a party and may be represented by its trustees or such other person as may be appointed by the court in any legal proceedings.””

[Baroness Deech (CB)]

My Lords, this amendment also stands in the name of my noble friend Lord Bew. There is a little link with the discussion we have just had. The noble Lord, Lord King, mentioned the need to cut off the sources of funding that go to terrorists. This amendment is not just about terrorism—far from it, although it would have the side-effect that he has just mentioned if a charity were involved in such activities. It enables the victims of mistreatment by a charity to recover damages from the assets of the charity, not just from the trustees themselves. It by no means removes any responsibility or liability from the trustees personally: that remains. But sometimes when there is a victim—for example, of sexual abuse taking place at a charitable school which is not incorporated—the victim may need and deserve more damages than the personal trustee has at his disposal. It is only right, therefore, to go against the assets of the charity. The amendment would end the disparity between incorporated and unincorporated charities.

Charities, as we have heard frequently today, are not just about helping the poor, underprivileged and disabled. They are moving into the realms of big business. There are many areas now covered by charities, some of which operate without being incorporated: indeed, there is no requirement for them to do so. They include student unions, communes, Scouts, clubs and after-school activities. It is possible for there to be damage. We have heard a great deal about charities that harass the public when they are collecting funds. At the moment, only innocent trustees can be indemnified where there is a claim against them, but they remain liable. The amendment would in no way destroy the personal commitment that trustees feel towards the charity they are supporting.

Injured civilians currently have too little recourse against unincorporated charities that do them harm, some of which may be connected with terrorism. The remedies under the existing law are not adequate where the trustees of an unincorporated charity do not have sufficient personal assets and were themselves involved in the wrongdoing or were reckless or negligent and so are not entitled to be indemnified by the charity. While those creating or running a charity may be free to choose the legal structure, the victims are not, and this amendment is ultimately about protecting victims.

The position of a wholly innocent trustee would be ameliorated by the amendment. Instead of the victim having to claim against the trustee and the trustee having to claim against the charity under an indemnity, the victim would be able to claim against the charity directly and the charity will not claim a contribution from a wholly innocent trustee. This is a benefit, not a disadvantage, of the amendment. The amendment would apply where a trustee of an unincorporated charity is liable in tort by reason of his conduct in his capacity as a trustee of a charity, or a person employed by a trustee or trustees is liable by reason of his conduct in the course of that employment. It is just like a company which is liable when a director commits a tort in his capacity as a director of the company or an employee of the company commits a tort in the course of his employment by the company. This applies whether or not the act is ultra vires. This is elementary law.

We are calling for this law to be made more helpful to victims, without in any way disturbing the responsibility that trustees, rightly, bear. In the past, victims of sexual abuse by Scout masters have successfully claimed damages from the Scout Association, because it happens to be incorporated by royal charter. The victims can claim damages from the organisation itself, but many local Scout associations are unincorporated, and there are dozens of them. Victims of sexual abuse, if it were to happen in the course of the activities of these associations, may well find it difficult, or impossible, to recover substantial compensation. It is not right that the availability of a remedy for the victim of such abuse should depend on whether the particular Scout association happened to be incorporated.

A religious organisation may be established as an unincorporated charity. Former adherents may claim that it has been run as a cult and seek compensation for being imprisoned and deprived of their property by duress or fraud. The organisation may have substantial assets, since adherents are encouraged to donate generously, but the trustees may have no personal assets—so the claims by the victims are valid but completely worthless, because the trustees have nothing. They cannot demand that the trustees be indemnified out of the assets held on charitable trust since the trustees are themselves involved in the wrongdoing, in breach of trust.

In sum, this amendment will help victims and will bring to an end a difference between the incorporated and the unincorporated charity that has no justification. I beg to move.

[Lord Bew (CB)]

My Lords, this amendment is in my name as well as that of my noble friend Lady Deech. Since we moved this amendment in Committee on 1 July, the issue has in some ways become sharper because of widespread reporting in the press of the harassment of donors by those working for charities. The issue of the circumstances that might arise where a victim is unable to seek compensation from a charity has become sharper than it was even a very short time ago.

That said, I wish to reassure the noble Baroness, Lady Barker, and others that we are well aware that the charitable sector is fundamentally a source of great good in our society, and we are very concerned that anything that we propose today does not in any way reduce the legitimate freedom of activity of our charities. It is very important to keep this in mind and to try to get the balance right. The essential difficulty here, to which my noble friend Lady Deech referred, is the difference in status between incorporated and unincorporated charities—those in the latter category are now in the great majority. She gave the example of the Scout Association, which is a good one, where issues of sexual exploitation were able to be raised against the national Scout Association because it was an incorporated charity. However, it is a much more difficult and complex matter to do that against local bodies.

It seems to me very difficult to justify this anomaly. The comparator is with company law, and my noble friend Lady Deech convincingly made the case that the comparator is not really operating in the way that one would expect in the case of unincorporated charities. We are arguing for the rectification of an anomaly, as my noble friend Lady Deech said, in the interests above all of victims.

The Minister has been very kind to us and we have had helpful discussions about this matter. I was listening to the discussion of an earlier amendment, when the noble Lord, Lord Hodgson of Astley Abbotts, suggested that this amendment would not be welcomed by the Charity Commission. It would be helpful if we could have some sense of the Charity Commission’s view about the practicalities of this amendment, if that is at all possible—but I support the amendment at this point.

--- Later in debate ---

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, I thank the noble Baroness, Lady Deech, and the noble Lord, Lord Bew, for their thoughtful explanations of this amendment and for sparing the time to discuss this issue with me privately. I also thank the noble Baroness, Lady Barker, and my noble friends Lord Deben and Lord Gold, for their contributions. When we discussed this in Committee I made several points that noble Lords will be glad to know I will not repeat in great detail now as this can be quite a complex matter—as noble Lords will have gathered. I will stick to the principal points.

If an individual or entity commences litigation against an unincorporated charity, usually all the trustees of that charity would be named as parties. That is because an unincorporated charity has no separate legal identity—the point that others made. This would include proceedings for tortious liability against a charity trustee in his or her capacity as a trustee of that charity, or an employee in the course of his or her employment. If damages were awarded against the trustees, the trustees ordinarily would be entitled—if they acted properly and reasonably—to indemnify themselves from the assets of the unincorporated charity under the charity’s governing document. However, they could be jointly and severally liable for any shortfall where the charity’s assets are insufficient to meet the level of damages awarded.

In that respect, a person who sues an unincorporated charity can be in a stronger position than a person who sues an incorporated charity, where the directors’ liability can be limited, as they could seek redress from the assets of the charity and the personal assets of the trustees. For an incorporated charity, in the absence of any charity assets there is limited redress against the directors and members. Also, the unincorporated charity is in the same position as other unincorporated associations—for example, many trade associations. A trade association could make a flawed recommendation to its members that resulted in tortious liability.

It is important to restate that liability should not automatically attach to the charitable association’s assets, as the amendment seems to propose. In all cases, it should be for the court to establish where liability should lie, based on the facts of the case and the charity’s governing document. There may be other unintended consequences resulting from the amendment which we would also want to avoid.

In our view, damages may be met from the assets of the charity, whether it is incorporated or not, under the law as it stands. However, I recognise that a number of people have raised concerns over how the law operates in this area. As I said, I met the noble Lord, Lord Bew, the noble Baroness, Lady Deech, and my noble friend Lord Gold to discuss the nature of these problems. In response to their thoughtful contributions today, while I cannot give any commitments about amendments to the Bill, I will and certainly do commit to look at this issue in more detail over the summer, and in particular to reflect on whether there is a lacuna in the law as it stands that puts victims of unincorporated charities at a significant disadvantage. I will obviously keep the noble Baroness, Lady Deech, the noble Lord, Lord Bew, and my noble friend Lord Gold informed as to my deliberations. I am happy to keep others who spoke on this amendment informed, too. I fully understand that this is a complex area. We do not wish to rush into it.

I understand that the Charity Commission shares a number of the concerns raised and it would be happy to write to the noble Lord, Lord Bew, in more detail on this point as our deliberations progress. I am sure that the Charity Commission would be happy to meet with the noble Baroness, Lady Deech, and other noble Lords should they so wish. With all that said and in mind, I hope that the noble Baroness will not press her amendment.

[Baroness Deech]

I am grateful to the Minister for his conversations with us and for the very valuable suggestion of bringing in the Charity Commission to get evidence, which is very hard to collect in this field. However, I would like to correct a misunderstanding that seemed to flow around the House. This amendment would not incorporate charities, nor do I recollect saying that most charities were incorporated.

It does no such thing to the charity structure, but would simply enable the victims to access the assets of the charity where the trustee himself or herself does not have enough. In that sense, it would simplify the running of the charity and its structure. As the Minister said, assets will be used in any case, so there is no question of somehow continuing the preservation of a charity’s assets when wrong has been done to a victim. However, given that we need to consult the Charity Commission on that, I beg leave to withdraw the amendment for now.

Amendment 18 withdrawn.

Charities (Protection and Social Investment) Bill [HL]

Baroness Deech Excerpts

Wednesday 1st July 2015 Grand Committee

I am well aware that the Government have made more material resources available to the Charity Commission to deal with that sort of problem. It is also clear, as I have said before, that the Bill in a number of its provisions is intended to deal with that difficulty, and that the Government are well aware of the problem. The amendment is simply an attempt to see whether something else can be done and whether it is possible to have a constructive debate about that. The essential point is that although individual employees and trustees of unincorporated charities can be made personally liable under current law, that is of little comfort to victims if, as is commonly the case, they have no significant assets. I acknowledge that it is possible under current law to claim indirectly from the charity’s assets via an indemnity to the trustees or from insurance covering the trustees. However, even where that is possible it is certainly cumbersome and expensive, and it is not possible where the trustees are themselves implicated in the wrongful conduct or have been reckless. In some ways, the irony is, the worse the governance of the charity, the less prospect of a remedy for the victim. I beg to move.

[Baroness Deech (CB)]

I will speak briefly in support of my noble friend Lord Bew. I got interested in this area having had some experience of when things may go wrong. When you have a commune, for example, which takes all the assets of its members and something goes wrong, such as abuse, there ought to be recourse against those assets. The same applies to children’s clubs, after-school lessons, youth movements, and even student unions.

Our previous discussions show how far the charitable organisation has spread, reaching into every area of our life. It seems only right that there should be the same protection for those who may be adversely affected by an unincorporated charity as by an incorporated one. The main thrust of the amendment lies in proposed new subsection (2), which would enable a person entitled to damages to recover them from the assets of the charity. It is intended to be prospective and not retrospective in effect, applying only to torts committed after it comes into force.

In sum, the amendment would produce a small but useful improvement, making it practicable for victims to obtain compensation for wrongs committed in the course of the activities of unincorporated associations in circumstances where this is currently not practicable. It would remove disparity between unincorporated and incorporated charities; it would encourage the provision of additional resources to expose misuse of charities. It would strengthen compliance with the law and protect the reputation of legitimate charitable activities.

As my noble friend mentioned, the resources of the Charity Commission, which could be involved in this, are necessarily limited and it is only right to help the Charity Commission in its efforts. In sum, this is a good, useful amendment which seems capable only of doing good and certainly no harm.

[Lord Gold (Con)]

My Lords, as the noble Lord, Lord Bew, has said, the purpose of the amendment is to remedy a deficiency in English charity law which prevents victims of wrongs committed in the course of the activities of an unincorporated charity being able to recover compensation from the charity’s assets. This is of particular concern when an unincorporated charity is used as a mask by those knowingly funding terrorism. Victims may have claims against individual staff or trustees of the charity, but if such individuals are men of straw or vanish from view then, unless the charity is obliged to provide an indemnity for its staff or trustees—and that can be uncertain—the claimant will lose out. Worse, the unincorporated charity can carry on just as before, while the victims or their families are cheated out of justice to which they are entitled.

As the House of Commons Home Affairs Committee stated in its report of 30 April 2014 on counterterrorism, bogus charities are being used as a means of funding terrorist activities. There is a serious risk therefore that, unless there is some redress to the assets of unincorporated charities, this anomaly will protect such charities, which will not be liable for the activities of their staff or trustees. The amendment would give victims of wrongs who have claims arising from the conduct of trustees or employed staff the right to bring a claim directly against the unincorporated charity, just as they can at present against an incorporated charity. This proposal does not affect any personal liability of trustees or employees, but the court would have power to determine what should be paid by the charity and what the wrongful individuals should pay.

For an unincorporated charity presently to be liable to indemnify staff members or trustees, it must be vicariously liable for the wrongful acts of its trustee or staff member. That will apply only if the tort or wrongdoing was committed by the staff member in the course of their employment or, in the case of a trustee, if they were not acting in breach of trust. Only in such a case would it be possible for the claimant to recover damages indirectly from the charity’s assets via this indemnity. Even so, the claimant in such a case would face uncertainty, delay and cost if he or she were to test the position, which would be made harder if the trustees were unco-operative. For example, it may suit the individual wrongdoer not to be able to call for an indemnity so that the charity’s assets are protected and can continue to be used to sponsor terrorist activity. Similarly, any insurance cover which the trustees may have is unlikely to apply where they deliberately or recklessly misapply or jeopardise the charity’s assets.

By supporting the amendment and giving claimants a more direct and certain way of gaining redress, we would also be making it far harder for those seeking to fund terrorism or other wrongdoing to do so while hiding behind a seemingly charitable veil.

--- Later in debate ---

[Baroness Deech]

My Lords, I will of course defer to the noble Lord, Lord Gold, who is much more of a lawyer than I am, but I do not believe that the purpose of the amendment is to turn all charities into incorporated bodies. It is simply to ensure that when something does go terribly wrong, an example being sexual abuse, innocent trustees should not lose their houses. The other side of that coin is that the value of the innocent trustee’s house may not be nearly enough to cover the damages that ought to be paid to the victim. It is simply a question of protecting the innocent trustee while of course respecting and honouring the long history of trustees being very involved and feeling personally liable. However, when there is a serious issue in which a victim has been seriously harmed either physically or mentally, the assets of the trustee may be insufficient for the victim, while at the same time the wrong trustee is being punished. The damages should come out of the collective assets of the charity. However, in every other respect, the long-standing, noble notion of the unincorporated charity should of course remain.

[Lord Watson of Invergowrie (Lab)]

My Lords, we support the amendment in the name of the noble Lord, Lord Bew. Change is needed because, as we have heard, many people who have suffered in a manner that would allow them to seek at least adequate redress against an unincorporated charity are currently in effect unable to achieve that. There are a lot of unincorporated charities. The Charity Commission has around 125,000 of them on its register, which gives some idea of the scope of those that may be covered by this amendment.

Surely there is a need for parity, because where a tort has been committed in the course of a charity’s activities, the remedy should not be different simply because of the charity’s status. An example of an unincorporated charity being able to escape the consequences of its actions arose a few years ago, and I had personal contact with it. Noble Lords may recall that a number of charities became involved in fundraising to assist countries in sub-Saharan Africa. Huge amounts of clothing, toys and other portable goods which had been donated by the public in the UK were transported by road to people in need in those countries. I had a friend who was involved in delivering those goods as part of one of the convoys. Sadly, during the journey his convoy met with an accident in which he suffered a serious leg injury. He is now unable to drive and has lost his job, because driving was an essential part of it. However, the charity was unincorporated so he had no effective means of redress in the form of compensation. He did receive some, but not nearly as much as he would have done had he been able to take action against an incorporated charity.

I do not think that there is any point in repeating the comments made by noble Lords in this debate. I simply wish to say that the amendment is a sensible one and I hope that the Minister will agree to bring forward an amendment on Report that incorporates its aims.

Israel and Palestine

Baroness Deech Excerpts

Thursday 5th March 2015 Grand Committee

[Baroness Deech (CB)]

My Lords, the time has come for the active involvement of the regional Arab states in reaching a solution for the whole area. I fear that Israel probably does not take the UK or Europe seriously as impartial fixers, because of their fixation on Israel while they remain relatively silent on terrible situations in, for example, North Korea, Russia and China. Israel sees the rising tide of anti-Semitism in Europe and this country, connected with intransigence by Palestinians of violence, and that makes Israel more intransigent.

The Kerry proposals are as good as any, but, in addition, Hamas and Gaza must be disarmed, there must be no more tunnels and disarmament must be covered by UN inspectors. We should call on the Palestinians to renounce their arms, recognise their neighbour state and get on with creating a homeland for Palestinians wherever they may be, and not set up another rogue, extremist state. There must be two states. That means that Palestine must recognise Israel. Palestinians have been unwilling ever to accept a Jewish presence and that is more of a problem in the area than the settlements, remembering how Gaza was evacuated. One state, we know, is impossible and has never worked where there is a Muslim majority around the world.

The Palestinians have turned down a two-state solution many a time, while we know that Israel accepts it. The Palestinians need a democratic leader, a man of peace. They must make the citizens of the new Palestine be existing residents and not continue to call them refugees. They must gather in their refugees from the diaspora. If they do not do that, I have to believe that their intention is to overrun Israel. They say that, “Palestine should stretch from the river to the sea”—a Judenrein state—whereas Israel has 1.8 million Arabs.

The solution depends on normalisation. There are many partition states, such as India, Pakistan and Bangladesh, but in the end there must be normalisation.

Regulatory Agencies: Monitoring

Baroness Deech Excerpts

Wednesday 4th March 2015 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I cannot begin to think who the noble Lord might be referring to, but I look forward with interest to him showing me his Bill.

[Baroness Deech (CB)]

Is the Minister aware that all 10 legal regulators, which operate underneath the Legal Services Board, agree that the board and the statute that put it into place are not working well and need radical reform? Can he say whether, if he is in government after May, a new Government will find time to reform it, which is what the regulators all want?

[Lord Wallace of Saltaire]

My Lords, I will certainly take that back if I am in government after May. I hope I shall not still be the oldest member of the Government.

Palestine: Recognition

Baroness Deech Excerpts

Thursday 29th January 2015 Lords Chamber

[Baroness Deech (CB)]

My Lords, with unfortunate timing, this debate is taking place two days after International Holocaust Remembrance Day. In the 70 years since the liberation of Auschwitz, despite the millions spent on Holocaust education and remembrance, the museums and memorials and the school visits to concentration camps, there is a gap in memory and education that needs to be bridged. The desire and opportunity to murder 6 million people of a different religion whose presence on his territory the murderer resents must not arise again. The message Jews took from the Holocaust was that their nationalism was necessary. It has been a success. Israel is not Saudi Arabia; it is not North Korea, Iran or Pakistan. It is a flourishing and democratic outpost in the desert with an astonishing record. It is a safe haven, an imperative for existence that can be applied to no other country in the world.

Yasser Arafat declared an independent state of Palestine in 1988 and recognition followed from 100 states. The subsequent failure to change anything on the ground demonstrates the truth of the international law on recognition: namely, that statehood has to be founded in fact, not in numbers of recognitions.

As far as this Motion goes, almost every word of it is dubious. There can be no contribution towards a two-state solution because recognition of Palestine, falsely based, will only make the situation more dangerous. There can be no two-state solution unless Palestine recognises Israel, which she has steadfastly refused to do. There is no statehood attaching to Palestine in international law because it does not meet the criteria. A sovereign state of a Muslim Palestine has never existed—not before 1948, and not before 1967. It was Egyptian and Jordanian territory. Ehud Olmert’s offer of a state was rejected in 2009. The intention of many of the players in the region has always been the elimination of a Jewish presence in the area, not the establishment of yet one more Muslim state. The problem with Israel is not that it has displaced anyone; according to its neighbours, the problem is that its population is largely Jewish.

The practical result of a premature state of Palestine would simply be to free up the import of arms into the new state. The aim underlying this move is the takeover of Israel. Why is there no preparation by the Palestinians for statehood? There is no governance structure, no independent administration, no industrialisation and no negotiation of trade agreements with its neighbour, Israel. The state would not be a state in any recognisable form. Its leaders have declared that the current residents, whose status as refugees defies all logic, would remain defined as refugees. They would not be granted citizenship, nor would the state of Palestine open its doors to the Palestinian diaspora—those Palestinians whose miserable lives in Syria, Egypt, Lebanon and elsewhere in the region are worse than the lives of those in Gaza and the West Bank. It has also declared that it would be a Judenrein state, unlike the 1.8 million Arab residents of Israel who have chosen to stay there.

So if a state has no citizens, and will not grant them citizenship in defiance of international law, what would it be for? It would be for a closer jumping-off point for the demolition of the State of Israel in pursuance of the alleged right of return. As other noble Lords have said, Fatah and Hamas want a one-state solution. Why should Israel recognise Palestine if there is no reciprocity but only a step towards elimination in return?

In the climate of extremism that is sweeping Europe, why should a country want to take a step that risks feeding it more? The only purpose is manipulative—to allow Palestinians to pursue claims against Israel at the UN and other international bodies. In the face of what is happening in Europe, what agenda do the proponents serve? Would it not be a good idea to examine the excesses of this position and turn to state building on the ground as an alternative?

Israel’s antagonists often accuse her of apartheid. In the worst times of genuine apartheid in South Africa, Mandela was planning his future independent country’s constitution, educating its leaders, preaching peace, not vengeance, and acting as a statesman. In the early days of Zionism, before statehood, the Jewish residents of what was to be Israel prepared their governance structure, set up the organs of a state, created universities, made the desert bloom, prepared a legal system and a free press, trade unions, hospitals and charities. None of this is present in the Palestinian leadership; nothing is readied. It is not a state under international law, but I have no time to describe that.

The worst element, of course, is that the residents will not be citizens but will be regarded as refugees whose aim is to return to a different state—Israel—rather than establishing citizenship in their own state, and the new state would be wholly dependent on international funds. For it to be recognised now—by the General Assembly, for example—would simply send the message to every other non-state entity in the world, such as the Basque country, Northern Cyprus, the Kurds and even Scotland, to bypass normal laws and claim to be a state. Let there be a two-state solution by all means if the Palestinians will create a homeland, accept the refugees, lay down their arms and be a country of peace.

Courtesy Titles

Baroness Deech Excerpts

Monday 24th February 2014 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government what plans they have to promote equality in the use of courtesy titles.

[Lord Wallace of Saltaire (LD)]

My Lords, while the Government recognise the equality issues surrounding the use of courtesy titles, we have no plans to alter their use due to the complexity of the system and the likelihood of confusion arising from alteration to the long-standing custom and practice governing this matter.

[Baroness Deech (CB)]

I can assure the Minister that, having looked into the issue, it is not as difficult as he imagines and that there could be change. Does he not agree that equality has to start in this House and that the use of the title “Lady” by the wives of knights and noble Lords is discriminatory unless a title of some sort is also accorded to the husbands of noble Baronesses and dames? Either the title should be used only by those to whom it was awarded, or husbands and wives and partners have to be treated equally.

[Lord Wallace of Saltaire]

My Lords, I think the statement that equality must start in this House is one which will be received with surprise by a number of those outside. I thank the noble Baroness for encouraging me to read Debrett’s for the first time. Having read Debrett’s for the first time, I know this is a highly complex issue. I recognise that the use of courtesy titles and titles for the spouses of Peers—which are apparently legal titles, not courtesy titles—has grown up over the past 500 to 600 years. The rapid changes in the relationship between the sexes and in marriage over the past 50 years have, of course, left us with a number of anomalies, of which the Government are well aware, but we are not persuaded that it is urgent to adjust them now.