HL Deb 25 June 1974 vol 352 cc1455-64

10.40 p.m.


My Lords, I beg to move that the House do resolve into Committee on the Bill. In doing so, I should like very briefly to say why. I have tried the suggestions made by the noble Lords, Lord Derwent and Lord Sandford, at Second Reading of the Bill, to no effect; and, secondly, there are many other parishes throughout the country—my file is full of them —who will, I am sure, be encouraged by our perseverence to the Committee stage, and it will be a forward step, I hope, to assist hamlets and small communities to retain their own centres. I beg to move.

Moved, that the House do now resolve itself into Committee.—(Lord Clifford of Chudleigh.)

House in Committee accordingly.

[The LORD CHAMPION in the Chair.]

Clause 1 [Option to purchase property of educational foundation by local communities]:


This is purely a drafting Amendment. I beg to move the first Amendment.

Amendment moved—

Page 1, leave out lines 5 and 6 and insert— ("1.—(1) In section 2 of the Education Act 1973 (special powers as to certain trusts for religious education) after subsection (3) there shall be inserted the following subsection:—") —(Lord Clifford of Chudleigh.)


Page 1, line 18, at end insert—

  1. ("(a) their open market value with the permitted user at the time when they cease to be used for a voluntary school; and
  2. (b) such evidence (if any) as he shall consider sufficient of").

The noble Lord said: I beg to move Amendment No. 2, and at the same time speak to Amendments Nos. 3 and 4. They are designed to meet some of the objections raised by the then Minister, the noble Lord, Lord Garnsworthy, at the Second Reading. For example, at column 837 he criticised the way the Secretary of State was to arrive at the price to be paid. Paragraph (a) deals with this point. So although we feel that in our case, having given the land and built the hall ourselves, we should get it for "nowt", this would be at least a compromise. The noble Lord's criticism was that we were seeking to buy trust property at less than its full value. What is full value? Surely this depends on planning permission. In particular leaving out the last three lines (Amendment No. 3) and substituting something far more easily ascertainable is much less mandatory. Amendment No. 4 is meant to meet the charitable point raised by the noble Lord, Lord Garnsworthy, and to incorporate the idea of administration under the Charities Act. I beg to move.


May I say right away that I think the noble Lord, Lord Clifford of Chudleigh, has been having rather a difficult time. I think I am now the third Minister to answer on this Bill. To the first Amendment there was no objection. To the next Amendment, dealing the market value, and the ones that the noble Lord has taken together with it, the Government have an objection. The first part of the Amendment requires the Secretary of State, in fixing the price or rent, to take into consideration the open market value with the permitted user at the time the premises ceased to be used as a voluntary school.

The trouble with this Amendment, as I understand it, is that it would not be open to the Secretary of State to take into account the price which the premises might fetch on the open market if they were sold with planning permission to develop them. While I quite understand what the noble Lord has in mind, having read the previous debates on this Bill, nevertheless, it is wrong in principle, because it is surely the duty of trustees to obtain the best possible price when they sell trust property and, where possible, this must mean the price which the property will fetch with planning permission for its development.

The Amendment, as it stands, would make it impossible for them to fulfil this duty. The effect of the Amendment would also be to transfer to the representatives of the community the increased value of the premises if planning permission was obtainable, for if permission could be obtained to develop the land and thus to enhance its value it might well be in the best interests of the trust to sell it and apply the proceeds of the sale to the purposes for which they had acquired the land by virtue of any scheme made by the Secretary of State under the new subsection. Therefore, I am afraid that the Government have certainly these objections to this particular Amendment.

The second Amendment to which the noble Lord spoke at the same time appears to be designed to meet a point raised on Second Reading, concerning the amount of the contribution to the endowment made by the members of the local community. The Amendment attempts to do more, and to improve on what was in the original Bill. It is a minor point and it does not really deal with the very realistic objections to putting this into practice. As it stands, it certainly is an improvement I appreciate that the noble Lord has made a valiant attempt to deal with the objections raised on Second Reading, and I do not propose to take that any further.

On these two Amendments—and it is rather difficult to separate them from the substantive Amendment that follows—I suggest that because of the objections that I have made (and I have tried to keep them brief because of the hour) the noble Lord should reconsider and perhaps make an improvement on them if he wants to take the matter any further.

10.48 p.m.


I am grateful to the noble Baroness for the understanding way in which she has treated my case. I have taken careful note of what she has said, and there are one or two points we could alter on Report. For example, perhaps a slight confusion could be avoided by sub stituting "including" for "other than" in line 7 of Amendment No. 4. If the statement that I have made is agreeable to the noble Baroness, I will again get together with my advisers to see whether we can put right on Report anything that has been pointed out as being wrong. On that basis, I beg to move.


Do I understand the noble Lord is withdrawing his Amendment?


No. On the basis of what I said, that I have taken note of what the noble Baroness has said and the one suggestion I have given already for overcoming some of the difficulties, I beg to move the Amendment.

10.50 p.m.


I beg to move Amendment No. 3.

Amendment moved— Page 1, line 21, leave out from ("subsequently") to end of line 24.—(Lord Clifford of Chudleigh.)


I can certainly whole-heartedly agree to this Amendment, because the noble Lord has made a substantial improvement on the way the Bill was drafted on Second Reading.


I beg to move Amendment No. 4.

Amendment moved— Page 1, line 24, at end insert— ("(3B) Any order made under or in accordance with subsection (3A) above may establish a scheme or schemes for the land or property to which the order relates to be used for such appropriate charitable purposes such as but not limited to, a village hall or community centre for the benefit of the community, as appear to the Secretary of State to correspond to the use, other than religious or educational use, to which the land or property was put prior to the order, and any such scheme or schemes shall be administered in accordance with the provisions of section 18 of the Charities Act 1960."—(Lord Clifford of chudleigh.

LORD CLIFFORD or CHUDLEIGH moved Amendment No. 5: Page 2, line 2, leave out ("subsection (3A)") and insert ("subsections (3A) and (3B)").

The noble Lord said

This is purely a drafting Amendment consequential on Amendment No. 4. I beg to move.


Due to my newness—if you like my virginity—in answering on Committee stage, I have probably caused a certain amount of confusion. The noble Lord spoke to the Amendments and I replied by breaking them down into the first two or three. It would be only fair to him, although I do not intend to resist the Amendment to the point of a Division—there would be insufficient Members, anyway—if I commented on what is the substantive Amendment, which is to insert subsection (3B), and the one that follows is consequential to it.

One of the problems is that, in the first place, the Amendment as it is now drafted, states that the Secretary of State "may". This is permissive and it would be helpful if the noble Lord would consider making that mandatory, because although it enables it does not compel the Secretary of State to make a scheme regulating the use of the premises. It requires that any such scheme "shall be used for charitable purposes." Secondly, the Amendment would require the premises to be used for charitable purposes, but it would not require them to be used for denominational or educational purposes. Indeed, it could be read in one way as if the premises could not be used for purposes which are neither religious or educational, which I am sure the noble Lord does not intend. If he does not, then I think it is a drafting point of which he should take cognisance However, there is a serious objection of principle to the Amendment as it stands, since the noble Lord's Bill amends the Education Act 1973 which is concerned by definition with endowments held wholly or partly for, or in connection with, the provision of a school of religious education in accordance with the tenets of a particular religious denomination.

As was pointed out on behalf of the Government on Second Reading, it is a fundamental principle of the law relating to charitable trusts that a gift once given for a charitable purpose must be applied as a gratuity for that purpose, or when the fulfillment of that purpose is no longer practicable for purposes as reasonably near to it as they may be, and these in this instance must be religious and educational. The Amendment appears to be based on the view that the miscellaneous minor uses of the school outside school hours are uses properly covered by the original trust deed. However, this would be most unlikely. A trustee of charitable property may properly allow the property to he used for other purposes when it is not required for the primary purposes of the charity, although in some circumstances it may be his duty as a trustee to make a charge for that use.

Thus it means that a church hall may happily be used for purposes which have no direct religious significance at all, but this does not mean that those other uses are to be regarded as purposes of the trust. As well as this, there is a further objection to the clause which relates to that part of the new subsection which provides that any scheme made by the Secretary of State under the subsection shall be administered in accordance with the provisions of Section 18 of the Charities Act 1960. Schemes are administered by trustees, but Section 18 of the Charities Act is concerned with the making of schemes by the Charity Commissioners, not with their administration. This, again, I imagine, is another drafting point.

However, the Bill as amended goes some way towards meeting the Government's objections of principle to the Bill, as given on Second Reading, and it would enable the Secretary of State to ensure that the property is applied for exclusively charitable purposes, although I think it is arguable whether in this instance the Secretary of State for Education and Science should have the duty to make a scheme for the application of property for purposes which really are not educational at all. I think this is a matter to which the noble Lord might like to give further thought between now and Report stage. However, as I have already said, since it goes some way towards meeting past criticism, I do not propose to invite the Committee to reject the Amendments at this stage, but I do suggest that Lord Clifford should consider very carefully the objections of principle between now and Report stage. The Committtee should look at the drafting of the provision where the words appear to exclude religious and educational uses of the premises in the future. Nevertheless, it was signified by this House on the two previous Second Readings that there is a great element of social justice in the motives underlying this Bill. I think that, with those words, "Godspeed" is all I can say on it at this moment.


I am glad the noble Baroness ended on that note, because I am sure she will recognise if she thinks about it that it really is a legal quibble to say, on the one hand, that the original charitable trust can be extended from the village for which it was originally set up to cover religious education over a whole diocese, and then, on the other hand, to say that, although it was established for religious purposes generally, it cannot be extended for community purposes. If it can be extended in one way it can be extended in another.


May I say one word about the Bill, which I have been following with interest through its stages, although I have not spoken on it yet? I have greatly admired the noble Lord, Lord Clifford of Chudleigh, in his efforts to put right an injustice, and obviously the Government are giving it, I think the noble Baroness said, a fair wind. The noble Lord now finds himself in the position in which a great many private Members here and in another place have found themselves that is, with a lack of expert advice on how to draft a Bill. I have been in this position before now, where I have brought forward an Amendment which I have thought was perfectly adequate and had it torn to pieces. We have all had our own fun, too, at the expense of Parliamentary draftsmen and their devious methods in going a long way round to produce what we all think ought to be a much shorter draft. But they are extremely expert. The Government have much collective knowledge among their advisers. It would be a tremendous help now, I am sure, to the noble Lord, Lord Clifford of Chudleigh, if he could be given some direct help by the Government, through their advisers and their draftsmen, so that we do not spend another long Report stage putting right what may be mistakes which the noble Lord will undoubtedly make if he does not have the advice of the Parliamentary draftsmen.


I am not quite certain exactly where we are at the moment, but I should like to thank the noble Baroness for what she has said. I am particularly grateful that she did come back, because it is now on the Record as to what principles are worrying the Government, and this will help me, or anyone who comes along, as suggested by the noble Lord, Lord Raglan, to see that we do not make any more mistakes on the Report stage. I am not quite sure what stage we have now reached: I thought we had taken Amendment No. 4, but if we are back there again, I beg to move.


The Committee had accepted Amendment No. 4, and the noble Lord had moved Amendment No. 5, which has been put to the Committee. It is true that perhaps the discussion ranged (shall I say?) a little wide. In the circumstances, I now put the Question, That Amendment No. 5 be agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?


This is a general Bill, right across the board and it comes about because our local hamlet of Ideford is about to lose its only community centre—a circumstance which I now know from my correspondence applies to places all over the country. I should like to say that I cannot understand why the diocesan boards of finance seem to want to squeeze the pip till it squeaks. As in so many other cases I know of, we have within the limits of our size, numbers and wealth, collected as much as we can to try to purchase what we think is ours by right anyway. I should just like to say that, as regards the Bill as a whole, it seems to me rather unreasonable that people will not agree to negotiate on what we can afford, and so avoid all this legalistic business.


I think it is important that I should get this point correctly on the Record because, as the noble Lord, Lord Clifford, kindly pointed out in regard to the last Amendment, it is important for him to know the points to which the Government object. Over the specific case of Ideford, to which the noble Lord is now referring, I think he should be well aware that the Order made in respect of Ideford was made not under the Education Act 1973 but under the earlier Act of 1950. If it had been possible to consider it under the 1973 Education Act—which is not possible since it came up too early—the position would be different. The 1973 Act makes specific provision for a division of the endowment to take into account its use as, for example, a Sunday school. So there is a difference in the situation now compared with what it was when the problem of Ideford arose. Nevertheless, I think the noble Lord, in raising the whole question, has succeeded in drawing publicity to the present situation, has given a public service in this way, although I really must repeat again, and it would not be fair if I did not, that this Amendments, as they stand, are really not acceptable.

11.05 p.m.


The noble Baroness has raised a very interesting case. I should be grateful if her Department could look into what I call the subsidiary part of the original trust. There is the question of the Sunday school. For the Record, and hoping she will be able to do something for me. I should like to take the opportunity of pointing out to her that, following the closure of the school, the rector wrote to the Diocesan Board of Finance and asked them to look at the original trust deed. He said: As I understand it, on closure of the day school the trust purpose will not have wholly failed but should then revert to the secondary purpose, i.e. the Sunday School. In anticipation of possible closure, could the diocesan legal department look into this and inform me of their opinion? The reply that the rector received from the diocesan legal department was that the secondary trust, the Sunday school, was, "By way of being a bonus" and did not affect the legal position. I wonder whether there is any chance that that advice was wrong, because the whole of our case, and our little battle, arose on this very point. The rector went on the local television and said that he thought there might be a legal case, but that he was a poor man himself, his parish was very poor and could not afford the legal advice. I wonder whether I could take up the point raised by the noble Baroness and ask if between now and the Report stage we might get some expert legal advice, free of charge, to have something else to fall back on.


The noble Lord was kind enough to tell me about these points, in advance of this Committee stage. I made inquiries, and although I am not a legal expert, what I said earlier, as I understand it, is so. It was in a way unfortunate that the instance he gave of the village with which he was concerned and which led to his bringing forward the Bill in the first place, did not come under the 1973 Education Act. Therefore, it could not be dealt with in this way. There may have been other difficulties also. I will go into the matter further and make sure that I have the right form of words and will write to the noble Lord about it.

Clause 1, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported with the Amendments.