§ Mr. Graham Page
I beg to move, in page 18, line 32, at the end to insert:or to exercise the powers mentioned in paragraphs (b) and (c) of subsection (1) above.Under Clause 18 (1, b) as it stands the Commissioners have power to appoint, discharge or remove:a charity trustee or trustee for a charitybut under subsection (4) they can exercise that jurisdiction only if the proceedings start by an application by the charity or by order of the court except in circumstances arising as described in subsection (6), and under 896 subsection (6) the Commissioners and the Home Secretary can take the whole matter into their own hands if they think the charity ought to have applied for a scheme.
The Clause does not say that in those circumstances where the Charity Commissioners and the Home Secretary together have initiated the proceedings the Commissioners can thereupon make a scheme. What is says is that they "may proceed accordingly" to exercise their jurisdiction under the Clause and, in particular, under subsection (1) to do any of the things there set out—under paragraph (a) established a scheme; under paragraph (b) appoint, discharge or remove a trustee; and under paragraph (c) vest or transfer property.
The point was raised in Committee about the meaning of the word "proceed." I got the impression from the answer of my hon. and learned Friend that there was no intention that the word should include anything more than making a scheme. If that be the intention, I hope that the Amendment will be accepted so that the position may be made entirely clear, that if the Commissioners are operating under subsection (4) they would exercise only jurisdiction to make a scheme and not to remove trustees.
The important point about it is that under subsection (6) the whole matter proceeds without any judicial hearing of any sort. It would proceed without an application from the charity to initiate proceedings and without any order of the court to initiate those proceedings, and entirely on the initiative of the Home Secretary and the Charity Commissioners, acting, as it were, jointly. It is true that the charity trustee would be given the opportunity to make representations, but they are to the Secretary of State and not to the Charity Commissioners acting quasi-judicially. So that if under this Clause a charity trustee were removed he would have been removed without any sort of judicial hearing at all. As the Clause is drafted he would have no right of appeal, except by leave of the Commissioners or leave of the court.
The intention of this Amendment is to make quite certain that under subsection (6) the Commissioners can only proceed to make a scheme and not 897 exercise their powers under subsection (1) to appoint or dismiss a trustee or vest or transfer property.
§ The Solicitor-General
This is a very narrow subsection. Subsection (1) gives the Commissioners power to exercise the jurisdiction and powers of the High Court for… establishing a scheme … appointing, discharging or removing a charity trustee or … an officer or servantandvesting or transferring property …That is normally exercisable on the application of the charity or on the order of the court. But subsection (6) states:Where … the Commissioners are satisfied that the charity trustees ought in the interests of the charity to apply for a scheme, but have unreasonably refused or neglected to do so, the Commissioners may apply to the Secretary of State for him to refer the case to them with a view to a scheme …They have to give the charity trustees an opportunity to make representations to the Secretary of State, and, of course, Clause 21 applies. So subsection (6) is treating of a scheme. It gives no power to remove a trustee or anybody else, except as part of a scheme for the administration of the charity.
If such a scheme is to be made, it would be absurd to preclude the Commissioners from making provision for the trusteeship and getting in the trust property. There is no such limitation on the powers of the Commissioners where the trustees apply for a scheme themselves, and so it would be absurd to make such a limitation where they do not.
I draw my hon. Friend's attention to subsection (9), which says that the Commissioners shall not exercise their jurisdiction under this Clause in any case—other than that referred to them by order of the court—which, because of its contentious nature, or any question of fact or law, is more fitted to be adjudicated upon by the court. The sort of case where this power might be useful is that which was mentioned by the hon. Member for Huddersfield, West (Mr. Wade) in Committee in connection with what is now Clause 35, namely, the case of a charity which has existed for a long time, some 300 years or so—and there are plenty of charities which are older than 898 that—where the chain of trusteeship cannot be proved and the easiest way of dealing with the doubts and difficulties of title is to remove everybody but the present trustees and vest the property in them, so giving them indisputable title.
Therefore, particularly in view of subsection (9) and the need, if a scheme is being made, to get in the property and vest it in the effective trustees, I ask my hon. Friend not to press his Amendment.
§ Amendment negatived.
§ Mr. Fletcher
I beg to move, in page 19, line 21, at the end to insert:save that where the Commissioners have by order removed a trustee, charity trustee, officer, agent or servant of a charity under the powers conferred by this section an appeal against such an order may be brought by any person so removed without a certificate of the Commissioners and without the leave of one of the judges of the High Court attached to the Chancery Division.
§ Mr. Speaker
It is probably for the convenience of the House with this Amendment to take the Amendment in page 19, line 18, after "appeal", to insert:(other than against an order of the Commissioners removing a trustee, charity trustee, officer, agent, or servant of a charity)".in the name of the hon. Member for Crosby (Mr. Graham Page), which has not been selected.
§ Mr. Fletcher
I am much obliged. I hope that that will commend itself to the hon. Member for Crosby (Mr. Graham Page), because the Amendment owes at any rate some of its inspiration to the hon. Member's observations in Committee.
In Committee we had a great deal of discussion on two related Clauses dealing with the powers of the Commissioners to remove trustees. Those were Clauses 17 and 19 in Committee, but are now Clauses 18 and 20.
The position is that the present Clause 19 (11) corresponds with Clause 20 (7). In Committee we found that very wide and sweeping powers were being given to the Commissioners for the first time. No objection was taken to most of them, but it became necessary to strutinise some of those powers very carefully to ensure that they were not excessive. Those two subsections were adversely criticised in another place because it seemed very anomalous that the Commissioners, who 899 are civil servants, should be given the right to remove a charity trustee without that charity trustee having a completely unrestricted right of appeal.
The Solicitor-General seemed to think that the right of appeal with the leave of a judge of the Chancery Division, which was originally given, was the equivalent of an unrestricted right of appeal; at any rate, he used words to that effect on Second Reading. In Committee we persuaded him that this was not so and that there was a considerable difference between an unrestricted right of appeal and a right of appeal which operated only if one first obtained leave from a Chancery judge.
We also persuaded him that it could not be just to legislate on lines which permitted a charity trustee to be removed for misconduct or mismanagement by the Commissioners without having an absolutely unrestricted right of appeal, and we were glad that in Committee he assented to that proposition, with the result that the exceptions now contained in Clause 20 (7) find an appropriate place. We thought at the same time that a similar provision should be inserted in Clause 18 (11), with which we are dealing, because, as I recollect it, the Amendment on the Notice Paper at that time was not particularly apt to give effect to the same considerations as apply to Clause 20.
What we have attempted to do here, I hope with the support of the hon. Member for Crosby and the hon. Lady the Member for Plymouth, Devonport (Miss Vickers), is to frame an Amendment which is limited to the case of a removal of a trustee, and in that case, and that case alone, it would enable a trustee to have an unrestricted right of appeal from the Commissioners to the High Court under Clause 18 in precisely the same way as he now has under Clause 20.
§ Miss Joan Vickers (Plymouth, Devonport)
I support the Amendment, as I did in Committee. I congratulate my hon. and learned Friend on having brought the Bill so far, because there have been thirteen previous Bills which have failed, and one reason for the failure concerned the question of trustees. The Nathan Committee's Report, in paragraph 86, states that the delay in passing this legislation was due 900more than anything else to resistance to the setting up of an independent board to look into the doings of trustees. Strong objection was taken by various opponents to 'arbitrary and despotic powers'which it was thought might be given to the tribunal,which would have the result of 'absolutely depriving' people of the 'management of their own affairs' ".This may be going a little far now, but I feel that the Clause does not give trustees the necessary notice of the intention to remove them as trustees. I put this point to the Solicitor-General in Committee and I understood him to say that unless he cannot be found or has no known address in the United Kingdom, the trustee must be given one month's notice. I suggest that one month's notice is too short. Surely one would want longer to find out where he is. In legislation dealing with maintenance orders, for instance, where it takes a considerable time to trace a husband, the court allows much more time than this to enable the woman to take the case before the courts. I only suggest that the Commissioners have too arbitrary rights in this case, and I hope this Amendment will be accepted.
§ Mr. Graham Page
The Solicitor-General having accepted an Amendment to Clause 20 in Committee, it seems to me that it is impossible for him to resist this Amendment. There can be no justification for excluding this Amendment to Clause 18, similar to that in Clause 20, now that Clause 18 (6) remains unamended, and for this reason: under Clause 20, a trustee who is removed will have the benefit of notice from the Charity Commissioners that they intend to make an order and, I presume, the right to go before the Commissioners and be heard. Under Clause 20 (9) the Commissioners cannot make an order, as I understand it, removing the trustee, without giving him notice, and the only purpose of giving notice is for him to go before the Commissioners and be heard in his own defence.
Therefore, the trustee has, under Clause 20, a quasi-judicial tribunal to hear any defence he likes to put up against his removal as a trustee. But under Clause 18, if subsection 6 is used, he has no such quasi-judicial tribunal He is given the right to make representations to the Secretary of State, and 901 after that, whatever the Secretary of State may decide, the Charity Commissioners can go ahead and make the Order to remove him, and he has no absolute right of appeal. If he is given an absolute right of appeal under Clause 20 when he has a judicial tribunal to hear the case in the first instance, surely it is all the more necessary under Clause 18. I hope that the Solicitor-General will see some way of inserting these words into Clause 18 (11).
§ The Solicitor-General
Both these Amendments give an unqualified right of appeal to the court in the case of a trustee, officer, or servant being removed under the Clause by order of the Commissioners. Both are defective in certain respects, but the Amendment moved is by far less defective than the Amendment in the name of my hon. Friend the Member for Crosby (Mr. Graham Page). But as my hon. Friend's Amendment has not been selected for Division and as in any event I am going to advise the House not to accept the Amendment moved by the hon. Member for Islington, East (Mr. Fletcher), I may, perhaps be excused from going into these matters.
There are five solid reasons against accepting this Amendment, and they are reasons of principle. The first is that the position under the Bill as regards an absence of an absolute right of appeal against a Commissioners' Order has stood since 1860 and, so far as I know, it has stood without objection. Secondly, an unqualified right of appeal makes very little sense in the context of Clause 18. Subsection (9), as I pointed out on the previous Amendment, precludes the Commissioners from acting at all under this Clause in any contentious or difficult case. I gave an example on the previous Amendment, which I will not repeat, about the sort of cases where they will operate under this Clause.
Thirdly, the Commissioners have no power to act under this Clause of their own motion, and that is the fundamental difference between this Clause and Clause 20 and why it seemed to the Government right under Clause 20 to accept the Amendment that was moved by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) in 902 Committee, which appears now in Clause 20 (7).
Fourthly, if anyone has a legal point to argue, the consent of the Commissioners to the appeal has invariably been given. As I say, this restriction has existed since 1860. So that there should be no doubt at all about it, the Bill for the first time gives the additional right to go to a judge of the Chancery Division. If the proposed appellant cannot satisfy either the Commissioners or a judge that he has got a point to argue, it is really of no great practical importance to allow him to bring an appeal.
Fifthly, and by far the most important, the whole of the costs of defending the Commissioners' decision would fall on the charity in any event, and almost certainly the costs of the appellant—
§ The Solicitor-General
The court has a discretion. I said that the costs of defending the Commissioners' decision would fall on the charity. Most charities have a total value of less than £1,000. Large numbers, particularly the oldest, have a rent charge of something like £5 a year. The mere issue of proceedings by way of appeal can constitute a threat to the private pockets of the trustees, in that the charity ex hypothesi in those cases cannnot meet the cost. It is such a threat to the private pockets of trustees as in effect to paralyse the charity indefinitely. A small rent charge is no adequate indemnity against the cost of an appeal to the High Court, and perhaps after that a further appeal to the Court of Appeal.
The trustees are people acting in a public capacity. After all, everybody, from admirals to company directors, can be removed from their offices, with possible damage to their reputations, but nobody has suggested that any of them can go running to the High Court with a right of appeal. As I say, it is a public office and it would be very difficult to instance a case of another public office which does enjoy the same right of access to the courts as a charity trustee.
In the end, it comes down to this. This Clause cannot operate in any contentious matter. If anybody has suffered injustice in the last 100 years by reason of the Commissioners' action, nobody seems to have heard of it. And the fact 903 that the costs are likely to fall on the trust—in other words, on the beneficiaries—in my submission makes the acceptance of either of these Amendments impossible.
§ Amendment negatived.
§ Mr. Fletcher
I am not proposing to move the Amendments to Clause 29, Mr. Deputy-Speaker. I do not know whether my right hon. Friend the Member for South Shields (Mr. Ede) proposes to move any of them.