Charities (Protection and Social Investment) Bill [HL]

Debate between Lord Hope of Craighead and Baroness Barker

Tuesday 2nd February 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, as the Minister will recall, I had the privilege of chairing the Joint Committee that conducted pre-legislative examination of what was then called the Protection of Charities Bill. I cast my mind back to a year ago, when our committee was still sitting and considering the terms of our report. It is a pleasure to see some members of my committee in the House this afternoon. It is against that background that I pay my own tribute to the Minister and his Bill team for bringing the Bill to this stage: we are now truly at the last lap. One of our main concerns was that there should be no delay in the legislation we were examining. It is a great pleasure to see that matters have been taken this far forward with the changes made.

The only amendment I wish to comment on—I do not want to arouse too much controversy about this—is Amendment 2. I listened with great care to what the noble Baroness, Lady Hayter of Kentish Town, said and I appreciate the concern on the point she mentioned. However, the one feature I stress is that we did not as a committee have the chance to examine Clause 9. As the noble Lord said, that was introduced to the Bill on Report. It is the kind of clause that, speaking for myself, we would have wanted to examine with great care because of not only its implications on the point that the noble Baroness made but also its width. It is completely unqualified. If it had been more precisely targeted, we might have been a little more inclined to support it. I rather suspect that a clause as general as this would impose a very great burden on the Charity Commission. To a large extent, because of the protection of charity law generally, the clause would not be needed. I stress that I speak only for myself but I am relieved, against the background of what I have mentioned and having heard the Minister explain the reasons for it, that this amendment has come forward. I very much support it. My main point in rising to speak at all was to express my thanks and appreciation for the fact that we are now at this stage, in effect bringing the matter to an end.

[Baroness Barker (LD)]

My Lords, I, too, congratulate the Minister on getting his first piece of legislation through to its conclusion. I thank him also for the way in which he took us through the amendments today.

I will concentrate initially on one aspect of these amendments that has not so far been discussed: Amendments 3, 4 and 5, dealing with matters to do with the rehabilitation of offenders. I and other members of the committee had great sympathy with the case made to us by the charity Unlock about the problems that this Bill would pose particularly for charities that specialise in the rehabilitation of offenders. Their great concern was that up to approximately 50,000 people in this country with past convictions would find themselves now unable to take part in the process of being a trustee, even though they had committed those offences some considerable time ago and had managed to rehabilitate themselves. Last week in court there was a ruling on the matter of the severity of minor offences and their duration in relation to people having to make declarations. I rather suspect that, if that judgment is upheld, this legislation will have to be revisited fairly swiftly. I simply draw that to noble Lords’ attention.

Charities (Protection and Social Investment) Bill [HL]

Debate between Lord Hope of Craighead and Baroness Barker

Tuesday 23rd June 2015 Grand Committee

[Baroness Barker (LD)]

My Lords, good afternoon. I welcome the noble Lord, Lord Bridges, to his first Committee. No doubt he has been briefed extensively and told that these are occasions on which their Lordships are allowed to do absolutely anything they like. I think this is the point of maximum terror for the spokesperson, although I am sure we will treat him gently.

This might well seem the most pedantic amendment that noble Lords have ever seen but we are dealing with charity law, are we not? Let us start as we mean to go on. However, it is a rather important amendment. I want to start the Committee’s deliberations by trying to ensure that, throughout our proceedings, we do not stray into the realms of viewing this legislation simply in terms of the extent to which it adds to the arsenal of weapons at the disposal of the commission and without thinking of the impact that some of these measures can have on trustees.

When some of us undertook the work of the scrutiny committee, under the able chairmanship of the noble and learned Lord, Lord Hope of Craighead, we were presented with witnesses who were, by and large, people with professional interests from around the charity world. At times, we rather lost the sense that on the end of this legislation will be individual trustees, the majority of whom we know are perfectly decent and honest. Just a few are not.

On the committee, we considered at some length whether this power to issue a formal warning was really necessary. In the end, we were persuaded that on balance—it was on balance—perhaps the Charity Commission could make fair and good use of it to issue a warning rather than open a statutory inquiry and go through all that that entails. Simply having the power to issue a warning to trustees where it was considered that the actions in which they were engaged presented a fairly low-level risk to the charity or to charities in general is absolutely fine. I agree with that. However, it is still a public warning. It is still something likely to cast a shadow over, if not leave a stain on, a person’s reputation. The majority of trustees hold the commission in very high regard. They take very seriously the actions of the commission. For the majority of trustees the prospect of a public warning would actually be quite difficult for them personally if not professionally.

We deliberated long and hard, and were influenced a great deal by the wisdom of the noble Lord, Lord Hodgson. He argued that this was meant to be a proportionate response to very minor misdemeanours, albeit recurring ones, and because this is not meant to be a draconian power, we should not allow an appeal mechanism, making the process a bureaucratic nightmare. I agree, but that makes it all the more important that trustees are alerted in good time that they may be the recipients of a warning, giving them a chance to put right their failures. That is what this power is supposed to be about—the prevention of fairly minor misdemeanours.

For that reason, it is important to ensure that people know where and when the warning will be published. It is one thing for a notice to be published on a part of the Charity Commission’s website, where only those of us who are sufficiently intrepid or boring to make our way will find it. It is quite another for it to be published prominently somewhere in a local paper, for example—if local papers still exist—in an area in which the charity operates. That could have quite a profound and damaging effect on the charity’s reputation.

In putting this apparently small and fussy amendment before your Lordships, I am trying to echo the points made by the Charity Law Association which thinks that trustees ought to be given fair notice that they will be subject to this so that they can try to put matters right. If we do that, this power will serve to act in the preventive way that was envisaged rather than being a rather heavy-handed hammer to crack a nut. In that spirit, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, there is a great deal that the noble Baroness, Lady Barker, said with which I agree. Perhaps I can take this opportunity to pay my own tribute to the work that she, along with other Members of your Lordships’ House who are present, did on the committee. There is a great deal of force in her point about the importance of the notice that is being given to trustees as to what the Charity Commission wants to do with regard to publication. However, I have a concern about the removal of the word “how” and the substitution of the words “when and where” for this reason: when you think carefully about what the words really mean, the effect of the amendment is to narrow the amount of the information that is required by the provision. There are other things built into the word “how” which are not there—the manner in which this is to be done, and how often, are two examples. One point that the Charity Law Association raised with us and is in a memorandum it sent to us in connection with the Committee stage of the Bill is the element of publicity itself and whether anonymity is to be given to the trustees who are the subject of the publication. If one restricts the amount of information simply to “where” and “when”, it leaves out the possibility of further inquiry as to the precise way in which this is to be done.

I appreciate the word “how”. After all, a three letter word seems very weak but, if you think about it, it is actually quite a powerful word because it embraces so much within it. If you read that together with what is in subsection (6) which enables people to make representations as to “how”—I repeat the word “how”—the publication is to be done, one can see that it gives scope for a good deal more inquiry.

I have huge respect for the noble Baroness, Lady Barker—I am entirely in sympathy with what she is seeking to do—but I would respectfully suggest that “how” is probably the best word to use. If it is to be replaced by something else, then there would need to be more in it than simply “where” and “when”. I find that a little untidy, which is why I suggest that we leave the word “how” as it is.

--- Later in debate ---

[Baroness Barker]

I am sorry; I thought that they had been grouped together. I apologise to the noble Baroness.

[Lord Hope of Craighead]

My Lords, I will say a word or two about Amendment 7, which seeks to add a new “case K”, where:

“P has been found guilty of a sexual offence or has been placed on the sex offenders register”.

I will sound a note of caution about this amendment, for a variety of reasons.

The previous cases listed, some of which are the subject of other amendments, deal with incidences of dishonesty, failure to observe court orders and things of that kind. They cast doubt on the probity of the individual managing trust funds and are reasons for thinking that there might be some mismanagement of the funds. Indeed, terrorism is added, for reasons that we all understand. What is being introduced here is something that is not generic to the others, although it deals with an undoubtedly very disturbing social problem, which is people who abuse children, although it is not confined to child abuse, which I will come back to in a moment. There is a question of whether it is right to bring other criminal offences into the automatic disqualification field. One can think of other cases—extreme violence, for example. Crimes of violence are not listed here. There may be other crimes of a kind that society would regard as repugnant, but they are not listed here either. I have some doubt as to whether it is right to put the sexual offences chapter into the automatic disqualification field.

There are other reasons for being concerned about the wording. There are two chapters here. First, there is being found guilty of “a sexual offence”. There is no qualification as to how serious that offence may be. Anything that falls within the broad chapter of sexual offences would be included here, some of which may not require or justify a sentence of imprisonment at all. Then there is “the sex offenders register”. The position is that a person is placed on the sex offendering register as a matter of law if a sentence of 30 months or more is passed. So far so good: you are dealing with the more serious categories to justify being put on that register, but the initial part—conviction for “a sexual offence”—does not include everything.

There is a feature of the register that has been cured by order, but which caused concern in a case on which I sat in the Supreme Court. An 11 year-old boy who had committed a sexual offence—a very serious one, because he was sentenced to more than 30 months’ imprisonment or detention—was placed on the register. As it stood at that time, in 2010, the presence of his name on the register was without limit of time. It is an indefinite feature.