Charities (Protection and Social Investment) Bill [ Lords ] (Third sitting)

Debate between Rob Wilson and Jeremy Lefroy

Tuesday 5th January 2016 Public Bill Committees

[Mr Wilson]

I have not had any direct conversations with the Department for Education, but my officials are in contact with that Department regularly across a number of these areas. I would be slightly surprised if that had not been discussed at some point, but the commission will be looking at all these things and taking them into account—[Interruption.] Ah, a note has appeared on my desk. Apparently, there is no conflict with other regulators’ powers and practices, so I hope that reassures the hon. Gentleman.

[Jeremy Lefroy (Stafford) (Con)]

I am very reassured by all these safeguards. If we come across cases where it seems that the tribunal is regularly in conflict with the decisions of the Charity Commission, will the Government then look at that to see whether there are problems in the interpretation by the Charity Commission or the tribunal about what constitutes good grounds for disqualification?

[Mr Wilson]

That certainly has not happened to date—there has not been a conflict between the decisions of the charity tribunal and the Charity Commission—and I do not expect it to happen, because the Charity Commission works on the basis of the trust placed in it by the charitable sector. If the Charity Commission is regularly getting decisions wrong, that will have an impact on its status within the sector. The Charity Commission does all that it can to avoid a downgrade in its status. I hope that reassures my hon. Friend that the Charity Commission would always act in the sector’s best interests, in terms of proportionality and section 16 of the Charities Act 2011, which I have constantly mentioned, and that it would always try to get its decisions right, so that it does not come into regular conflict with the charity tribunal.

--- Later in debate ---

[Mr Wilson]

Once again I find that I have a great deal of sympathy with the intention behind the amendment, but once again I do not think it is necessary, and I believe it could have unintended consequences.

Let me explain first why I do not think the amendment is necessary. I agree that the commission should only consider conduct that is “relevant and serious”; in fact, so does the commission itself. The commission has said that under clause 11, it would provide the individual involved with an explanation identifying the conduct in question and why it thought that conduct met condition F. If the commission took account of conduct that was not relevant to the person’s ability to act as a charity trustee or senior manager, I would expect that any such disqualification order would be thrown out by the charity tribunal on appeal. As I have just discussed with my hon. Friend the Member for Stafford, the Charity Commission would not want that to happen on a regular basis.

As I have said many times, the commission would need to act in line with the duty set out in section 16(4) of the 2011 Act, under which its regulatory activities

“should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed”.

As a public body, the commission would also have to consider general human rights and equality duties.

The commission’s draft paper on its initial thoughts about how it would exercise its disqualification power provides some useful guidance. The commission recognises that condition F is widely drawn, but it gives examples of the types of conduct that it could take into account. For instance, if the conduct in question was by a trustee of a charity, it could consider whether it was misconduct or mismanagement, and whether it would put the charity’s property or reputation at undue risk. It could also take into account misconduct in another position of trust and responsibility; convictions relevant to the charity’s purposes, for example a conviction for animal cruelty by a trustee of an animal welfare charity; regulatory breaches that have been penalised by another authority, for example legal breaches on tax matters; a finding of misconduct by a professional body or regulator; or an adverse finding by a charity self-regulatory body or umbrella body.

I think the Committee will agree that those examples show the sorts of conduct that the regulator should consider. Whatever the conduct, which must be both relevant and serious, the commission would also have to meet the other two limbs of the test for disqualification: first, that the person is unfit to serve as a charity trustee; and, secondly, that making the disqualification order is in the public interest to protect public trust and confidence in charities. Under the disqualification power in clause 11, the commission would already need to consider conduct that was both relevant and serious.

[Jeremy Lefroy]

The Minister has already been helpful, but I would just like to get some clarification from him. Would somebody who has not yet served as a trustee of a charity be liable to be placed on the disqualification register, so that they would not be able to serve as a trustee of a charity, or does the register apply only to people who are already trustees or who have served as trustees? In other words, will the clause prevent people from becoming trustees in the future, or will it only apply to people who are either trustees now or who have been trustees in the past?

[Mr Wilson]

I think the answer to that question is “possibly”, and I would like to take some advice before I give a fuller answer. Hopefully I can get that advice fairly quickly, while I am going through the second half of my response.

I turn to the potential unintended consequence of including the words “relevant and serious” in condition F in clause 11, namely that it would cast doubt on other commission powers for which those words do not exist. At the moment, the exercise of other powers, such as the power to remove a charity trustee, depends on conduct that is both relevant and serious, even though those words are not included in the criteria for exercising the relevant powers.

I am very sympathetic to the aims of amendment 6, and hopefully, I can manage to answer the question that my hon. Friend the Member for Stafford asked. [Interruption.] Ah, yes. That is good news. The order could apply to people who are not trustees, but it would depend on the individual’s conduct. My original answer was right—“possibly”—but my hon. Friend asked a sensible and important question, and I will write to him in detail about it.

[Jeremy Lefroy]

I am most grateful for that. I am concerned that the provision will potentially give the commission an excuse for trawling to discover all sorts of people who commit offences and allow it to say, “Let’s get them disqualified as trustees, even though they have no desire to become a trustee.” That would cause a great deal of unnecessary work.

[Mr Wilson]

I see and understand the point that my hon. Friend makes. The best way for me to deal with it, as we have a period of time before Report in which we can consider the matter further, is to write to him in detail. If people were able to conduct trawling, as he calls it, that would be a worrying scenario.

I hope the Committee will understand why I believe the amendment is not necessary and could be counterproductive. I hope that the hon. Member for Redcar will withdraw it.

Charities (Protection and Social Investment) Bill [ Lords ] (Second sitting)

Debate between Rob Wilson and Jeremy Lefroy

Tuesday 15th December 2015 Public Bill Committees

[The Minister for Civil Society (Mr Rob Wilson)]

The clause is a sensible extension of the existing powers of the Charity Commission that are available to it when it is conducting a statutory inquiry under section 46 of the Charities Act 2011. At the moment, when a statutory inquiry is under way and the commission is satisfied that there has been either misconduct or mismanagement, or that there is risk to charity property, it may direct a charity to undertake certain actions under section 84 of the Act. The purpose of the existing section 84 power is to allow the commission to direct any action to be taken that it

“considers to be expedient in the interests of the charity.”

Legal precedent confirms that “expedient” in that context means advantageous or beneficial, so the action that the commission proposes will be of advantage or benefit to the charity’s interests, which in effect means the charity’s beneficiaries. However, the advantage or benefit must be viewed only in the context of the issues raised through the inquiry and not in the belief that it would be good for the charity in general terms. Specific examples of where the commission already uses that power include ordering a charity to undertake a governance review in a defined period; review a legal agreement; provide specified documentation by a certain date; ensure that a named individual is monitored on charity premises at all times; draw up a risk management procedure in a certain timeframe and implement that procedure; and take legal advice in connection with a matter concerning the charity and its funds.

Published figures in “Tackling abuse and mis- management: 2013-14” show that the commission used that power to direct charities on 38 occasions. As we have discussed, the commission has been exercising its power more often and more effectively, so we may well see that figure increase in the report for 2014-15, which will be published in the coming weeks.

The power to direct a charity to do something is long held and the commission has well-established procedures and policies in its armoury. The commission also has the power under section 76(3)(f) of the Charities Act 2011 to restrict a charity from undertaking certain financial transactions. That existing power can be exercised in a number of ways, including freezing a charity’s bank account; requiring the charity’s trustees to seek commission approval before entering certain transactions; and preventing specific transactions. That was used on 15 occasions in 2013-14.

The commission does not have the power to prevent a charity from undertaking actions or activities that would amount to misconduct or mismanagement during the course of a statutory inquiry. That is a loophole and the clause is a common-sense addition that will give it that power.

Some people have expressed concern that the commission could use that power to undermine freedom of association or freedom of speech, in particular for charities with religious purposes, but it is important to point out that it would be available to the commission only to prevent activities that would constitute misconduct or mismanagement were they to go ahead or continue. Therefore, if a charity engaged in unlawful political activity such as supporting a political party and holding partisan events, the Charity Commission could act to prevent further such activity from taking place.

It is worth pointing out, as the hon. Member for Redcar did, that the commission’s equivalent in Scotland, the Office of the Scottish Charity Regulator, has a similar power. Section 28 of the Charities and Trustee Investment (Scotland) Act 2005 enables the OSCR to

“direct any charity, body or person with regard to which it is making inquiries…not to undertake”

specific activities for a period of six months. The OSCR may seek a court order for longer restrictions.

The Joint Committee supported the inclusion of such a power, provided that it was tightly drawn to clarify the circumstances in which it could be used, along with the safeguards that applied, particularly the right of appeal. The new power in the clause will enable the Charity Commission to intervene to prevent misconduct or mismanagement from taking place rather than having to watch powerlessly, then take remedial action once the damage has been done.

The bar for exercising the power will be high and there will be six specific protections. First, the power can be used only in the context of a statutory inquiry. Secondly, the commission will have to be satisfied of the need to prevent misconduct, mismanagement or risk to charity property. Thirdly, the commission must set out a statement of reasons for exercising the power and review any order regularly—at least every six months. Fourthly, the making and every review of the order will be subject to a right of appeal to the Charity Tribunal and, like all its other protective and remedial powers, this power is subject to the Commission’s duty to act proportionately under section 16 of the Charities Act 2011.

Let me give the Committee two examples of cases in which the powers might be used. In recent years, there have been several cases of charities involved in the abuse of charitable business rates relief. In such cases, the so-called charity enters into multiple tenancy agreements with commercial property owners at reduced rents without any real evidence that the tenancies are in the best interests of the charity or are used meaningfully for charitable purposes. Once occupied by the charity, the property benefits from a reduction of at least 80% in business rates relief, which can be a substantial sum. The saving is often shared between the charity and the property owner. Local councils and honest taxpayers end up losing out. The commission has taken action in such cases, but it can do so only after the event. The new power would enable the commission to direct the charity not to enter into, renew or continue any further tenancies, in effect preventing the misconduct from continuing.

Another example in which the power could be used would arise if a charity had made significant loans to companies connected to the trustees. The trustees would seek to become insolvent and to wind up the charity, writing off the loans and resulting in significant financial benefit to the companies connected to the trustees. In that case, the commission would be able to use the new power to direct the trustees not to wind up the charity, buying time to sort things out by, for example, removing the trustees, or appointing new trustees or even an interim manager to act in the charity’s best interests, which could involve calling in the loans.

[Jeremy Lefroy (Stafford) (Con)]

It is a pleasure to serve under your chairmanship, Mrs Main. I am interested in the Minister’s example of charity shops having 80% or more discount on their business rates. I came across an instance recently of a thriving and popular business effectively being told by the landlord to move because they wanted to put in a charity shop which was offering a higher rent than that popular business. Part of me thinks that that might be the result of a charity being able to pay a higher rent because it does not pay any rates. How would the amendment affect that?

[Mr Wilson]

I take the point made by my hon. Friend, but I really do not think it is a matter for the Bill. He may want to raise it with the Chancellor or the Secretary of State for Business, Innovation and Skills. I do not think it is for me to deal with it today.

Some people have argued that it should not be possible for the power to extend beyond the life of a statutory inquiry, and I think that is what the amendment of the hon. Member for Redcar seeks to prevent. However, the hon. Lady may be seeking to do something slightly different, as her explanatory statement for the amendment suggests that she wants a direction to cease following a successful tribunal appeal. I can assure her that if such a direction were appealed it would be for the tribunal to decide what would happen—for example, whether the direction would be quashed, remain in place or remitted to the charity commission to be reconsidered. If the hon. Lady is concerned that the commission could exercise the power following an official warning, let me remind her that it could be exercised only when a statutory inquiry had been opened, which itself could be appealed to the Charity Commission.

Let me explain why I think that it should be possible for a direction to remain place beyond the life of a statutory inquiry, although not indefinitely. The power to direct action not to be taken is a temporary protective power for the Charity Commission. That is why it is subject to review at least every six months, so that the commission can confirm whether it considers it necessary for it to remain in force. That process would be subject every time to the commission’s duty to act proportionately and to the right of appeal to the charity tribunal.

The power is not a permanent, remedial one designed to address the underlying issues, which may need to be addressed by the exercise of other commission powers, including removal of trustees. It is designed to prevent specific further misconduct or mismanagement from taking place once a statutory inquiry has been opened, but those individuals need to know that the power can remain in place for sufficient time so that they do not simply decide to wait for six months before attempting the misconduct again or allowing the mismanagement to occur again.

Oral Answers to Questions

Debate between Rob Wilson and Jeremy Lefroy

Wednesday 19th November 2014 Commons Chamber

[Jeremy Lefroy (Stafford) (Con)]

T3. My constituents Callum Brogan and Parvathi Thara have been selected as National Citizen Service leaders for 2014-15, and have told me how much the NCS means to them. Will my hon. Friend tell me his future plans for the NCS?

[The Minister for Civil Society (Mr Rob Wilson)]

I congratulate my hon. Friend on his work with his local NCS, and all Members across the House who also take an interest in the programme. I wish his two constituents the best of luck next year as NCS leaders. The programme has consistently demonstrated, through independent evaluations, that it delivers more capable, confident and engaged young people, and up to £6.10 in benefits for every £1 spent. It continues to grow and it saw its 100,000th participant this summer.