Charities (Protection and Social Investment) Bill [HL]

Baroness Warwick of Undercliffe Excerpts

Tuesday 23rd June 2015 Grand Committee

All told, these two provisions together, Clause 3 and Clause 10, bring to what should be an objective test something that is far too wide and unclear for trustees to have confidence, first, that they themselves will know that they are likely to be deemed unfit to be a trustee or not to be disqualified, and, secondly, that they will know on what grounds the Charity Commission might disqualify them. Let us not forget that to be disqualified as a trustee has a profound affect on a person’s life. It really affects their reputation, not just their standing within their community but their professional reputation too. This is not a power that we should give the commission without very serious consideration. I beg to move.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I was sorry not to be able to take part in the Second Reading debate on the Bill, particularly as I was fortunate enough to serve under the excellent chairmanship of the noble and learned Lord, Lord Hope of Craighead, on the pre-legislative scrutiny committee. I declare my interests as chair of a charity, International Students House, as a member of the councils of two universities—UCL and Nottingham Trent—and as a member of the advisory council of NCVO.

As a member of the committee, I want to comment briefly on this amendment. I certainly do not want to repeat the points made by the noble Baroness. However, it was quite clear that we felt that, in the course of a statutory inquiry, the commission should not be limited to evidence of misconduct and/or mismanagement in the administration of the specific charity subject to such an inquiry. One discussion we had was around the Cup Trust, where the promoters of the scheme had a history of using charities in tax schemes.

However, we felt that the provisions of this part of the Bill were very broadly drawn since what is damaging to public trust and confidence in charities is obviously an open and potentially very subjective test. We shared the concerns of the Joint Committee on Human Rights, which expressed its anxiety about the breadth of this provision. We also shared the concerns of NCVO and several other witnesses—as the noble Baroness said—about the risks associated with this power and its lack of clarity. In particular, I know that NCVO was concerned that, in the absence of guidance, trustees and charities will be uncertain about the possible consequences of their conduct in relation to matters that will probably not have anything to do with the management or administration of the charity. I am very conscious of the points made by so many noble Lords about the reaction of trustees to the chilling effect of some of the commission’s powers. We are very unclear about the impact those powers will have.

As I said, I want to speak on this only briefly. I do not wish to exclude the reference to conduct not associated with charitable activities because that is very important. I hope the Government will look again at this. They said they would. They have not included any reference to this in the Bill, so I hope they will look again and be more explicit about the constraints on this apparently unlimited power.

[Lord Hope of Craighead]

My Lords, I just add a word to what the noble Baroness, Lady Warwick of Undercliffe, said by drawing attention to two paragraphs in our report—paragraphs 120 and 121. In paragraph 120, we refer to evidence from the Charity Law Association. It told us that, in its view,

“the wording of this power was ‘very wide’ and that it had concerns about how conduct would be deemed relevant for consideration by the Commission”,

if it was given that very wide power. In paragraph 121, we referred to the Muslim Charities Forum—this is on page 41 of the report—which expressed a concern that,

“the provision would allow the Commission to pass judgment on the political views of charity trustees, potentially infringing upon freedom of association and expression”.

A particular concern—and we quote from its evidence—was that trustees might, in a personal capacity,

“express support for Palestinian Statehood, speak out against the crack-down on Freedom of Association in the aftermath of the Arab Spring, or merely voice their anger at aspects of Western foreign policy”.

That could all,

“potentially fall under the net of supporting terrorism and/or extremism”.

It would then fall within the very broad description which is given in the two paragraphs to which these amendments refer.

I have to confess that we did not make any specific recommendation in our report. However, in paragraph 124, we state:

“we share the concerns of the JCHR and other witnesses about the risks associated with the power and its lack of clarity”.

I wanted to make these points to emphasise that there was a strong evidential basis for the concerns that the noble Baroness, Lady Barker, has expressed. These two references are in addition to those that the noble Baroness, Lady Warwick, mentioned in her short speech.