Higher Education and Research Bill

Baroness Deech Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

Moved by

[Baroness Deech]

152: After Clause 86, insert the following new Clause—
“Higher education providers: freedom of speech and preventing unlawful speech
(1) All English higher education providers must ensure that their students, staff and invited speakers are able to practise freedom of speech within the law in the provider’s premises, forums and events and must put in place measures to prevent unlawful speech.(2) Subsection (1) extends to the premises, forums and events of the provider's student unions.”

[Baroness Deech (CB)]

My Lords, this amendment goes to the heart of what the Bill is all about. Let us set aside for a moment the questions of fees, numbers, quangos and validations. The Bill is ostensibly about teaching excellence and academic freedom. We take it as implicit—the league tables confirm it—that our universities are among the very best in the world. Some of them are consistently found in the top 10, alongside American universities. We are united in wanting to preserve our excellence, as the vote of a few moments ago showed. We want to preserve it for its own sake and because it is a valuable, international attraction, embedding our intellectual values in cohort after cohort of future world leaders who come here to study. But you cannot have academic freedom, as now included in the Bill, or teaching excellence without freedom of speech. That, as I have repeatedly warned in this Chamber over the last couple of years, is in danger. Sometimes it is farcical gagging of speech and other times it is very dangerous.

The Bill will rank universities’ teaching skills as gold, silver, bronze and ineligible. There exists another ranking—that of freedom of speech—in our universities, which is, in my opinion, to be taken even more seriously as an indicator of excellence. The free speech university rankings 2017 examine all our universities according to the following criteria: bullying and harassment policies; equal opportunities policies; students unions’ attitude to no-platform policies; safe space; student codes of conduct; bans on controversial speakers and newspapers; and even expulsion of students on the grounds of their controversial views or statements. The sampled universities are then ranked: “red” means a university that is hostile to free speech and free expression; “amber” means a university that chills free speech and free expression by issuing guidance with regards to appropriate speech; and “green” is for the other universities which place no restrictions on free speech and expression, other than where it is unlawful.

Sixty-one universities, or 63%, actively censor speech. The censoring is either by the university administrations or by the students themselves. The examples of censoriousness are well known, whether it is the silencing of a Muslim woman calling for reform of religious attitudes towards women, the playful adoption of foreign dress or cuisine, mentions of transgender, the likelihood of blasphemy, or even complaints about censorship itself. We all remember the suspension of Sir Tim Hunt and the LSE lecturer who was silenced when his views about welfare were found to be likely to be unacceptable. Violence met Israeli peace activists speaking at UCL and KCL.

At the other end of the scale, hate speech is being heard unchallenged. A recent review of people convicted of terrorism found that a significant number were in education at the time of the offence. Student Rights logged 27 speaker events in London in four recent months where speakers referred to homosexuality in the most derogatory and punitive terms, and defended convicted terrorists. That is unlawful speech and universities are not always stopping it. My amendment, if accepted, would incidentally clarify, limit and strengthen the Prevent policy, which is likely to be reviewed because it would single out unlawful speech as a target of prohibition rather than the more woolly “extremism”. In sum, there is no point pursuing teaching excellence and academic freedom, in ranking universities gold, silver and bronze, if at the same time their real freedom and intellectual excellence comes out red or amber. These rankings are known internationally.

The Government maintain that my amendment is unnecessary because the required laws are already in place. I submit that not only are they ineffectual but there is a gap in the Minister’s summing-up letter which relates to enforcement. Students union premises are included in the premises on which a university must afford freedom of speech, but in practice some university authorities claim that union-organised activities taking place on university premises are not covered and the authorities back off, claiming the union is autonomous. Nor do they put a stop to safe-space controls. Or the universities tell students who have been discriminated against by their union that complaints are handled exclusively by the students union, which is wrong in law.

The Universities UK 2016 task force on violence against women, harassment and hate crime set out guidance for a disciplinary code for universities to adopt. The task force found that the evidence also suggested,

“that despite some positive activity, university responses are not as comprehensive, systematic and joined up as they could be. A commitment to addressing these issues is required within every university, from senior leadership down”.

Yet the report’s guidance does not seem to have been widely accepted. Some colleges—for example, SOAS—reject the new definition of anti-Semitism helpfully disseminated by the Government. I say “helpfully” because it distinguishes between lawful, political criticism of a state, which is fine, and race hatred which is not.

I turn now to the other points made in the letter sent to all Peers by the Government. It is stated in that letter that legal proceedings should be brought against universities if the freedom of speech duty is not complied with. That is too slow and the action needs to be against the disruptors in the first place rather than the university. There have been complaints to the Charity Commission about some unions but that, too, is slow and difficult. I respectfully suggest that the basis on which the Government now state that they are confident that students unions are sufficiently controlled by existing law is because I provided them with advice from a QC. Most universities do not know the law and dispute the conclusions. The Office for Students could require freedom-of-speech principles to be included in the public interest governance conditions but there is no requirement at the moment. It ought to be included in the Bill.

As we heard a few moments ago, many of our future leaders, both British and international, are being educated here in our university system. Since the referendum last year, there has been a spotlight on hate incidents, a rising number of unacceptable actions and speech. We are all disgusted by it. Some of us know that this has gone on for years and we are relieved that, finally, the occurrence of hate and intolerance in higher education, the media and society generally is getting the attention and disapprobation necessary. We will be letting down our future leaders if we allow them to receive their education on campuses where censorship is accepted and where hate speech and actions are overlooked. We will be storing up even more trouble for the future.

Accepting my amendment would not only show genuine commitment to excellence and academic freedom but clarify and control the Prevent guidance. It would provide for enforcement and support the UUK task force on hate and harassment. It would help students who have suffered from silencing and worse. To reject the amendment will send yet another message round the world—I am not exaggerating—that the Government and the university system remain passive in the face of a great threat to the future of our young. Our students must not graduate in the belief that there is no real freedom of speech, or that hate is mainstreamed. They must not leave university believing that it is routine to settle debates by silence or violence. For their good, I seek to have this amendment accepted. I beg to move.

[Baroness Garden of Frognal]

My Lords, I added my name to this amendment and spoke to it in previous stages of the Bill. I will be brief; in any event, the noble Baroness, Lady Deech, set out a comprehensive argument as to why this is so important. Who would have thought that it was important in this country to champion freedom of speech? Sadly, obviously that has become necessary. We are living in strange times. We have heard tales of students closing down free speech, and universities have taken remarkably little action over some issues when freedom of speech should have been protected.

It is difficult. There are obviously grey areas between what is lawful and what is not. As the noble Baroness said, we must not in any way encourage hate speech or incitement to violence but university students should be subject to ideas they find uncomfortable and be in a safe place where they can address them without those ideas immediately being shut down. This amendment also includes students unions, so it should help activities and events organised by students to make quite sure that they too encourage freedom of speech. It is a precious and valued part of our national life, and it is currently under threat. This amendment would add powers to ensure that we preserve it.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, I thank the noble Baroness, Lady Deech, and noble Lords for this valuable opportunity to discuss freedom of speech further. As the noble Lord, Lord Stevenson, and the noble Baroness, Lady Garden, said, we all recognise that it is a crucial principle at the heart of higher education. I am particularly grateful for the meetings and discussions I have had with the noble Baroness, Lady Deech, my noble friend Lord Polak and Sir Eric Pickles, who have encouraged us to consider even more closely the responsibilities that universities must have, including in relation to their students’ unions.

In response, the Minister for Universities and Science will be writing to the higher education sector shortly, highlighting the importance of the freedom of speech duty and reminding universities of their responsibilities in this respect. The letter will focus particularly on students’ unions—and all students—and will reiterate how freedom of speech codes of practice should be enforced. It will also emphasise the importance and expectation of rapid resolution of any freedom of speech issues. I hope that that reassures the noble Baroness, Lady Deech, that speed is of the essence, as she made clear in the meetings we had.

The existing freedom of speech duty requires all those concerned in the government of certain higher education establishments to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students, employees and visiting speakers. This includes an express duty to ensure, so far as reasonably practicable, that the use of any of the provider’s premises are not denied to anyone on the grounds of their beliefs, views, policy or objectives. In order to help staff, students and visitors understand their obligations, providers within scope must also have in place an active code of practice. This must explain how they should approach events on any of their premises, and the conduct expected of them.

I stress that students’ unions also have a role to play in this. The same duty requires that student members of a students’ union be subject to the code of practice issued by their higher education establishment. Students’ unions established at higher education institutions are typically charities, and the Charity Commission has a statutory function to identify and investigate mismanagement and misconduct in the management and administration of charities. In addition, the freedom of speech duty clearly applies to premises that are occupied by students’ unions, whether or not they are premises of the higher education establishment. I hope that provides clarity on another point the noble Baroness raised.

I completely agree with noble Lords that legal duties and codes of practice take us only so far. We fully expect providers not only to have robust codes of practice in place but to take reasonably practicable steps to ensure that they are adhered to. This includes taking disciplinary action where appropriate. In the occasional case where the duty is not complied with, legal proceedings have been brought against providers. In a recent case, the judge found that freedom of expression was alive and well in the university involved.

As part of its monitoring of the Prevent duty, HEFCE found that higher education providers showed a strong understanding of their responsibilities concerning freedom of speech and 93% had already put in place strong policies for assessing and managing the risks associated with any speaker event. We want to ensure that all relevant providers now do this. Therefore, for those that have not yet met this standard, action plans are in place for outstanding issues to be resolved by spring of this year. More generally, HEFCE regularly engages with higher education institutions, both informally and formally, in relation to balancing free speech with Prevent. While I understand the reasons for the noble Baroness’s amendment, unfortunately it is not clear how this additional duty would interact with the existing duty. We believe there is a genuine danger that in practice it would introduce ambiguity in relation to both duties.

However, I fear that to ensure that something happens without reasonable caveats unreasonably and unnecessarily imposes a burden on providers. It may well require them to address matters that are realistically out of their control. For example, it could result in an institution that faced concerns about violence at an event therefore being mandated to spend unreasonably large amounts of money on a significant security presence. Forcing such an event to unreasonably go ahead, or creating a situation where the duty to ensure freedom of speech may override concerns about the security of attendees, cannot be the desired effect. We need to allow institutions to make their own decisions, balancing the requirements of the duty against other responsibilities and enabling them to assess each individual case according to the situation.

We must also not overlook the fact that students, on the whole, do not think there is a problem with free speech. A 2016 survey by the Higher Education Policy Institute of over 1,000 full-time undergraduates at UK higher education institutions found that 83% of students felt free to express their opinions and political views openly at university. Noble Lords will also be reassured that Clause 15 enables the OfS to impose a public interest governance condition on registered providers. Such a condition would require applicable providers to ensure that their governing documents are consistent with a set of public interest principles relating to governance. The OfS will determine the list of principles following consultation. While we cannot prejudge that consultation, a principle underscoring the importance of free speech could be included in the list if the OfS considered it appropriate in light of the consultation.

In Committee I assured noble Lords that we would consider how to make sure that higher education providers continue to be subject to the existing freedom of speech duty under the new definitions created by the Bill. We have now considered this and we propose to extend the vital freedom of speech duty to all registered higher education providers under the Bill. This extends the duty beyond its current application of providers that broadly are eligible to receive HEFCE funding. It means that all providers on the OfS register will need to take reasonably practicable steps to ensure that freedom of speech is secured, to issue a freedom of speech code of conduct, and to ensure that it is complied with. We consider that this duty is comprehensive and strikes the right balance between ensuring that the higher education sector remains a vital place for debate and discussion and ensuring that providers are not burdened by a disproportionate and ambiguous requirement. The duty is just as relevant today as it was at its inception more than 30 years ago.

Freedom of speech is vital but must always be within the law. We all stand against illegal hate speech, discrimination, intimidation or harassment against anyone, including on the basis of their race, religion, gender, sexuality or disability. I am sure we all agree that there is no place for anyone who is trying to incite violence or support terrorism. In addition to legislation, there are effective mechanisms for reporting hate speech and other incidents; for example, through university internal complaints procedures, to the Office of the Independent Adjudicator, directly to the police, or to organisations including the Community Security Trust, Tell MAMA and the Equality and Human Rights Commission. Most providers already have clear policies on discrimination, harassment and hate incidents. Providers subject to the Prevent duty are also required to have due regard to the need to prevent people being drawn into terrorism, and as part of this to consider the impact of extremist speakers on campus.

Despite the good intentions of this amendment, its introduction adds little to existing legislation and risks confusion in relation to freedom of speech. It is not clear what measures would be required to prevent speech in advance of it happening. Unfortunately, this could lead to providers being too risk averse, with the unacceptable consequence that lawful free speech could be stifled. We believe that government Amendment 204, extending the existing freedom of speech duty to all registered higher education providers, strikes the right balance by requiring providers to do all they can to protect free speech. For unlawful speech, the answer is to continue to work with the sector to implement existing laws instead of creating new legislation. I hope that, with that explanation, the noble Baroness will see fit to withdraw her amendment.

[Baroness Deech]

My Lords, I greatly appreciate the Government’s involvement in this topic. I support Amendment 204 and am very pleased to see that the Government wish to extend the width of the freedom of speech duty. I appreciate the fact that the Minister has listened, as has his counterpart in the other place. They have taken this topic seriously—indeed, no Government could possibly reject the notion of freedom of speech while passing a higher education Bill.

What I would hope to see in correspondence between the Government and the universities in the next few days or weeks before we come to Third Reading is a clear explanation that students, individually and in their unions, are covered wherever they may speak or block speech, both on university premises and off them. I would hope to see provisions for prompt enforcement. We are all well aware of how brief the university year is: if you are a student, you can commit an offence in April and by June you are history and the university no longer has any control over you and you may well get away with it. I also hope that the letter would support the matter that the Minister mentioned: what could be more simple than to include a freedom of speech condition in the governance conditions to be set down by the OfS? It would be excellent if those conditions were set out and sent to universities.

I have some slight caveats. First, a recent letter from the Minister in the other place disseminating the definition of antisemitism, which I believe was also signed by the noble Viscount, Lord Younger, has been ignored and rejected by one of the places that most needed to hear it—namely, the School of Oriental and African Studies. Secondly, we have had provisions about freedom of speech on our statute book for 30 years, yet some universities have still not implemented them or do not know how to. I know for sure that one of them had never heard of them until 2011. Thirdly, it would be a pity if violence is still allowed to close down free speech. I would not wish to see, as I am sure noble Lords would not wish to see, a situation whereby the threat of violence prevents lawful speech and the university says that it simply cannot afford to police it. An atmosphere has to be created in universities and, I am afraid, security put in place so that violence does not close down free speech—whether that is in the university or anywhere else in society. If those conditions are met, as I hope they will be before Third Reading, then I will be content to withdraw the amendment now while reserving my right to revert to this topic.

Amendment 152 withdrawn.

Higher Education and Research Bill

Baroness Deech Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, with the agreement of the noble Baroness, Lady Wolf, and in the absence of the noble Baroness, Lady Brown, I will speak to this group. We understand that their Amendment 135, which we support, has been overtaken by events. It may be subject to an announcement that would remove the requirement for it, which I am sure we would all be grateful for. I have read through the Regulators’ Code and looked in detail at what it does. It can do nothing but good for the sector. It is an effective and useful guide. It will be extremely helpful to all those who will have to deal with the OfS as it moves into its new role. It is to be welcomed that the Government have seen the sense of the amendment we tabled in Committee and have decided to move forward in this way.

Amendment 136 is a slightly different beast. I am grateful to the noble Baroness, Lady Deech, who always seems to get stuck at the end of debates and has to hang here to make her very valuable contribution. That situation will change when we next discuss amendments that have her name to them. This one concerns an issue that has been growing in impact as we have been discussing and thinking about the issues raised in the Bill.

There is not, as might be implied by the drafting of Amendment 136, any sense in which we would resile the authority of the CMA regarding the work that will be done by the OfS and its associated committees and structures. The CMA has statutory rights to engage with anything consumers do in the public and private realms. Therefore, it will from time to time no doubt take an issue and respond to complaints. All these things are set out in statute in the ERR Act and the Consumer Rights Act 2015. However, there clearly are operations under the whole umbrella of the CMA that will have a resonance and possibly an ability to be dealt with by the Office for Students. It would be more appropriate for it to do these as part of its regulatory functions.

This is a question we have asked before and have not had a satisfactory answer to, which is why we are bringing it back tonight: what exactly is the boundary between the Office for Students in its regulatory mode and the CMA? At the moment the CMA has taken quite a serious first step into discussions with higher education providers. It has carried out a survey of the way they treat their consumers: students. It has drawn certain conclusions from that and is currently obtaining undertakings from a range of providers, many of which are well-known household names. This is a dog that barks and bites. We have to be very careful where it might go. We would not in any sense wish to constrain it, but it will introduce a completely new sense of engagement between those who respond to offers from higher education institutions to go to them and study, the results they obtain, and their attitudes to and relationships with such institutions.

However, the detailed work of that will necessarily fall to the Office for Students, so there really are questions. Where does the boundary lie? What are the parallel powers that the Government are setting up in this area? Will the OfS have the same powers that the CMA has, as defined in the two Acts that I have already mentioned? Are there new and additional powers that are not being mentioned? If so, could we have a note about these? Where exactly are we on this? I think there is a danger that this ground will be rather trampled over. I have said this was a dog that not only barked but bit, but I think there are other worries that there may be some sort of competitive urge between the two bodies to be more regulatory than the other, and I hope there will be powers available to make sure that that does not happen. We do not want too many dogs, and we certainly do not want them biting. We want to make sure at the end of the day that the true interests here, which are the interests of the students, are not curtailed or in any sense hampered by the fact that regulators are exercising functions in a lot of different ways. I am speaking to this amendment but there is a previous one in the group, and I will respond to mine once the noble Baroness has responded. I beg to move.

[Baroness Deech (CB)]

My Lords, I will speak about Amendments 135 and 136. It was a bit of a shock to many people to find that the Competition and Markets Authority had entered this rather competitive field of regulation. The CMA’s job is to promote competition and make markets work. I think much of the debate we have had over the past few weeks is precisely about how universities are not really about competition and markets; they are about collaboration, scholarship and research.

The OfS is replacing HEFCE, which was the lead regulator, but the OfS is not taking over the Office of the Independent Adjudicator. I declare my interest as the first holder of that office, a few years ago. The OfS is intended to be a single, student-focused regulator. I think the Government might be seen to be undermining their own scheme if they allow the CMA to meddle in affairs which really are not suitable for it. There is already far too much compliance and legalism for universities to deal with—human rights, health and safety, data protection, freedom of information, judicial review, Prevent guidance and much more, including the common law. There is a crowded enforcement field as well—the CMA, other higher education bodies, consumer protection legislation, the Office of the Independent Adjudicator, Scottish and Northern Irish ombudsmen, government departments, the Advertising Standards Authority and the Quality Assurance Agency. The CMA admits how fragile its own guidance is because everything depends on how the courts would interpret consumer law applied to universities’ functions.

I would argue that the CMA is also an inappropriate regulator because it shows little experience of how universities work. It is insistent on clear information being given about course variation before a student signs up. This is an example of how it is inappropriate. The prospectus for a student goes to print four or five years before the potential student who has read it graduates some years further on. It is impossible, therefore, in a prospectus to lock in lecturers for five years because of sabbaticals, fluctuating demand and finances, and even building works. How can a university predict what its fees will be five years from now, especially with new mechanisms being introduced right now? The CMA has recently opined that it thinks that it is unfair for universities to withhold formal qualifications from a student who is in debt. Does it have any idea how difficult it is to chase a student through debt collection procedures or failure to provide campus accommodation the following year—which it suggests as a sanction—when a student has left with no forwarding address or gone abroad, as frequently happens?

The CMA will also come into conflict and overlap with the Office of the Independent Adjudicator. The latter has been in existence for about 13 years and has decided thousands of cases, many of which have a consumer flavour. It has given a wide range of advice to universities about the same issues that the CMA has involved itself in. The OIA’s task, however, is to decide what is fair and reasonable. This is not the same as the CMA’s perspective, which is about deciding a dispute on the precise terms of the contract.

The Office of the Independent Adjudicator offers alternative dispute resolution, which is far better than resort to litigation. Unlike the CMA, the OIA can be flexible and offer resolution tailored to the needs of the wronged student—not money but a chance, for example, to retake a year or have extra tuition. The OIA should prevail over the CMA because it was based on a statute designed to provide that one specialised service for students; namely, the settlement of complaints according to what is fair.

There is something wrong in theory about letting the CMA drive issues of university information and practices. Its perspective would cement the student as a paying customer expecting to reach an acceptable outcome. But we are dealing in this Bill with a participatory process—education, not training; knowledge, not skills; and teaching, not rote learning—in a situation that involves a relationship of give and take between students and lecturers, parents and universities, and employers and government. We do not want the commercialisation of this relationship, as if it were the purchase of a car. We want value placed on stimulation, career guidance and intellectual growth, not just the path to a paper qualification.

The consumer model that the CMA applies results in a totally one-sided set of contractual details. It seems to think that there are no obligations on students to pull their weight and no enforcement mechanisms against students’ own shortcomings. There is no mention by it, or in the TEF, of students’ efforts and their responsibility to learn. This one-sided market approach is more likely to lead to complaints about poor teaching after an unacceptable result has been handed down. We expect collaboration and not competition.

Higher education is not like a consumer transaction. The education relationship is unique. There is no fixed outcome which can be measured by organisations such as the CMA because the quality of the experience is determined by the aptitude and hard work of the student, as well as the facilities and teaching offered by the university.

Higher education is one of a class of major events in life which do not readily lend themselves to government by contract. Such situations are too emotional and personal, with no clear goal and perhaps an imbalance of power. The issue may be too important for the rest of society to be left to the narrow issue of a contract between the individual parties. Only overall regulation focused on the goals of higher education and the student will do, not intervention from an unrelated and unrepresentative body such as the CMA.

The CMA focuses on choice, price and competition. It assumes that satisfying the consumer-student is all that matters. Its view of contracts is about the provision of education, but it is no help when it comes to what education should achieve. Its interventions will not only overlap and conflict with the Office of the Independent Adjudicator but will lead to more micromanagement, box-ticking, checking and inspection, and not to greater quality or public benefit. It has no place in this new system.

[Lord Lucas]

My Lords, I have a lot sympathy with what the noble Baroness, Lady Deech, said. Where I disagree with her is on university admissions. That seems to me to be a pure consumer transaction. The consumers are provided with information on which they are asked to make a decision. This is an area where I like the idea of there being common standards across the consumer realm rather than some cosy deal that, in the case of higher education, makes it unnecessary to provide the consumers with the level of information and reassurance that they have elsewhere. I think that it is even more necessary. It is probably the second or third biggest single transaction that most people will make in the course of their lives: their commitment to the amount of student loan they will end up with at the end of three years and their commitment to a direction in life which may require a lot of effort and sacrifice to change if they have taken one particular way down.

At the moment I think that it should be very much open to question by the CMA whether what is being provided to students is true, accurate and as much as they should have. Yes, I agree that the Office for Students should have a role in this, but the standards, the bar which we are aiming at, should be set in accordance with our national standards—and at the top of the range of national standards. I think that the CMA has a role in that. So I agree with the noble Baroness, Lady Deech, about what happens when you are in a university: all those sorts of relationships, the outcomes and the need for students to contribute, it being a partnership and so forth. It is very hard to read that as a consumer contract. But that first moment of decision—or that rather strung-out moment of decision—seems to me to be very much CMA territory.

--- Later in debate ---

Tabled by

[Baroness Deech]

136: After Clause 71, insert the following new Clause—
“Transfer of regulatory functions relating to higher education providers and students from Competition and Markets Authority to Office for Students
On the establishment of the OfS—(a) the OfS assumes responsibility for the regulatory functions in respect of higher education providers and students enrolled on higher education courses hitherto performed by the Competition and Markets Authority; and(b) the Competition and Markets Authority ceases to have responsibility for those regulatory functions.”

[Baroness Deech]

I may not have made myself clear enough. I thoroughly agree with the noble Lord, Lord Stevenson, that the solution is probably a memorandum of understanding. I was trying not to talk about the clash between the CMA and the OfS, if there is one, but there is definitely a clash because two bodies, the CMA and the Office of the Independent Adjudicator, are right on the same field. The Office of the Independent Adjudicator has been handing out hundreds of decisions every year about prospectuses, facilities and the consumer rights of students. I have already come across one case where it seems that the CMA has been contradicting the OIA. There is definitely confusion and a clash there, albeit a well-meaning one. They are coming at it from different perspectives and it seems quite unnecessary to have the CMA going in over the same territory. There has to be a solution. The OIA is not a regulator but a complaints handler and it is deeply involved in what one would call consumer transactions. But if the Minister will be happy to consider an MoU in some solution, then I am content not to move the amendment.

Amendment 136 not moved.

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.