Charities (Protection and Social Investment) Bill [HL]

Debate between Baroness Warwick of Undercliffe and Lord Hope of Craighead

Monday 29th June 2015 Grand Committee

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I support the probing questions of my noble friend Lord Watson of Invergowrie. At several stages in our pre-legislative scrutiny of the Bill, we became anxious about the breadth and vagueness of the powers which it bestows on the Charity Commission. These concerns were reinforced by a letter from the chairman of the Joint Committee on Human Rights, Dr Hywel Francis MP, in which he said:

“In the absence of further definition in the Bill itself, or other guidance, such broad and vague language significantly increases the power of the Commission and provides insufficient certainty to both individual trustees and charities about the possible consequences of their conduct”.

At each stage, when we had these concerns, we looked carefully at the evidence and concluded, as noble Lords will see from the report, that the powers were indeed justified in that they were likely to help to increase public trust and confidence in charities.

However, when it came to the inclusion of terrorism offences, as my noble friend has indicated, we received evidence that disturbed us. As noble Lords will know from our report, a number of witnesses expressed concerns over the difficulties presented by terrorism legislation in relation to the operational requirements of NGOs in challenging circumstances overseas. They were particularly concerned about charities operating in dangerous parts of the world for humanitarian purposes. My noble friend referred to the chairman of the Muslim Charities Forum, Dr Hany El-Banna, who told us that he thought counterterrorism legislation was,

“preventing us from having access to the neediest people”.

David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation, who has already been referred to, said concepts such as the provision of “indirect support” to terrorist organisations had,

“an impact on humanitarian charities, particularly when working abroad and when working in areas that are under the de facto control of a proscribed or designated group”.

He went on to say that charities operating in these areas ran the risk of falling foul of terrorism law by, for example, delivering relief to a general population which might include individuals or groups designated as terrorists. He suggested that an increased risk could deter charities and their trustees from delivering humanitarian support. Bond, the umbrella group, went on to suggest, in our words, that,

“the withdrawal of banking services exposed donor assets to greater risk because international NGOs had no option other than to use less secure money service bureaux or to carry sums of cash across borders”.

Nothing in what I have said undermines the need to deal with terrorism offences and to address legitimate concerns about the abuse of charitable funds in connection with terrorism. It does, however, raise questions about the uncertainty surrounding the application of terrorism legislation when it comes to charities operating in dangerous circumstances overseas. The pre-legislative scrutiny committee was offered the examples of Australia and New Zealand as places where Governments had addressed this issue and where specific exceptions in law existed to meet this point. We thought that this was worth pursuing, but when we raised it with the Minister for Civil Society, he said it fell outside his remit and was essentially a matter for the Home Office. He went on to say that it could be,

“chasing a problem that does not exist”,

since,

“no one has been prosecuted”.

I do not think that that is good enough. Clearly these charities are expressing real anxieties about the risks they might face and about the chilling effect of this legislation. The difficulties facing these charities are already enormous in Afghanistan, Iraq, Chechnya and Somalia, among other places. If it is possible to provide them with greater certainty in pursuing their important work and overcome this worrying and chilling effect, then we should try to do that.

Like my noble friend, I was disappointed with the Government’s response. The Government recognise that there are concerns, but points only to the problems of creating loopholes without even addressing the suggestion that they might look at the examples of Australia and New Zealand to see whether and how those countries have overcome this danger. I ask the Minister to think again and at least to consider whether other countries can provide some inspiration about whether there are ways to provide greater legal certainty.

Finally, the Government have said they will draw to the attention of the Director of Public Prosecutions our recommendation to publish guidance. I hope they will agree to do rather more than that and to put their weight behind the need for guidance to address the current uncertainty, which was revealed in our evidence and which the Government acknowledge.

[Lord Hope of Craighead]

My Lords, I draw attention to the last two sentences of paragraph 183 of the Joint Committee’s report, at pages 53 and 54. They refer to an exchange between me and the Minister speaking for the Home Office, the noble Lord, Lord Ashton of Hyde. I pointed out to him the difficulty faced, according to the evidence we received, by people who are trying to gain access to areas where people are in dire need of food, warm clothing or whatever else when somebody there is, in effect, a gatekeeper and refuses any transit to the areas where these people are without some form of payment.

One would of course support what the noble Lord, Lord Ashton, said as a general rule—one does not want people to pay money to terrorists for any reason—but the New Zealand legislation has addressed the problem by putting in the phrase “without reasonable excuse”. Something of that kind would go some way to addressing this problem, because a hard-edged refusal to contemplate any situation where money is paid by somebody—not to assist terrorist activity but simply to get access for a humanitarian purpose—would seem to be too severe. I would have thought that there is a need for some degree of flexibility, although like everyone else I recognise that this is a very sensitive issue and the last thing one wants to do is encourage terrorism. There is a conflict of two diametrically opposed interests here, and the hard-edged and uncompromising line, as described in the noble Lord’s reply when I put forward my suggestion, is prejudicing those who are in need of humanitarian assistance.

Charities (Protection and Social Investment) Bill [HL]

Debate between Baroness Warwick of Undercliffe and Lord Hope of Craighead

Tuesday 23rd June 2015 Grand Committee

[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.