HL Deb 06 February 1992 vol 535 cc365-97

4.42 p.m.

Consideration of amendments on Report resumed.

Baroness Faithfull moved Amendment No. 4:

After Clause 2, insert the following new clause:

("Legal responsibilities of Charity Trustees

After section 4 of the 1960 Act there shall be inserted—

"Legal responsibilities of Charity Trustees.

—(1) The Charity Commissioners shall prescribe a form to be signed and witnessed by all charity trustees on acceptance of the office of trustee.

(2) Such a form shall refer to the legal responsibilities of charity trustees, the method of appointment, retirement and removal of charity trustees applicable to that charity.

(3) The signed form shall be held by the charity concerned and a copy shall be held by the trustee concerned." ").

The noble Baroness said: My Lords, in moving this amendment I wish to apologise to my noble friend the Minister and to the House for putting down a new amendment on Report instead of at an earlier stage. The reason is that during the Committee stage I attended a meeting of the trustees of a charity of which I am a trustee. During the meeting various events took place which I shall not go into except to say that we were informed by the director of the charity that it had changed to become a company limited by guarantee.

Two points arose from that change. First, it was clear that a number of trustees in this country accept their position without knowing exactly what are their duties. I happen to have been fortunate in the past in having a brother who is a solicitor. When I became a trustee, he told me exactly what were my duties. However, I have come across many trustees who have no idea of their duties. Some believe that they are presidents and some patrons.

Recently I said to one person, "You know, you will be in trouble with that trust and, if you are, you will have to sell your house in order to meet the costs". I thought that person was about to faint, obviously having no idea of the financial responsibilities of a director.

By the same token, some directors of trusts have no clear idea of the duties of trustees. For example, I came across one trust where the director had not informed the trustees of them. Speaking for myself, I found that the Charity Commission had brought out an extremely good book on the duties of trustees. I had been a trustee for many years and had never seen it. Until a short time ago I did not know that it existed. Therefore, it seems to me important that trustees should know their duties and be clear about them. Equally, directors and secretaries of trusts should know them.

The amendment suggests that a simple form should be drawn up on the duties of a trustee. It should refer to the fuller book published by the Charity Commissioners and trustees should have to sign the form, perhaps in front of witnesses. The form should be in duplicate and kept by the trust as well as those who are trustees.

The National Council for Voluntary Organisations held a conference of trustees and the point was put to them. I understand that most of them considered this a wise suggestion to make to your Lordships and to the Minister. Two people said that they would not sign anything. However, whether or not people sign, they are still liable and the lack of signature does not make any difference, so the argument is not valid.

My noble friend may say that the drafting is not as good as it might be, but I believe that the intention is good because many trustees do not know their duties. Therefore, I beg to move.

Lord Morris of Castle Morris

My Lords, it is always a great pleasure to support the noble Baroness, Lady Faithfull, although with her customary eloquence she does not leave one much more to say.

A standard form such as she suggests implies generally accepted conditions and makes them more widely known than they are. We know that a great deal of the information is available, I suppose from the nearest branch of a public library. However, as the noble Baroness said, when most people accept the post of trustee they are not aware, and there is no wide public knowledge, of the depth of the responsibilities that trusteeship now requires. To be presented with such a form would bring one face to face with those responsibilities. Formal confrontation with them has a brisk and salutary effect just as when one is obliged to take an oath, sign a lease or even sign a cheque. People have eyeball confrontation with their responsibilities and there is no getting away from them. A document of this kind could be legally enforced, if necessary, to show that the person concerned had knowledge of the responsibilities undertaken.

Further, it would be an effective document of record, even as it stands. Some improvements may be possible in the drafting, but, as I said at Committee stage and it bears repetition, the law knows no higher status than that of trustee. That remark was made to me when I was much younger by an ancient lawyer in the city of York when I first took on a trusteeship. At that point he proceeded to read me the Riot Act about my responsibilities. That would be good for all of us. To have such a document would be effective in reminding one all the time that that information was on record.

There is a tiny trust in mid-Wales of which I became a trustee when I took up another office within the University of Wales. The post of trustee was an ex officio post. I was not aware that I had become a trustee until about 14 months after I had taken up the office which carried the trusteeship with it. As it happened, the post of trustee consisted of disbursing tuppence ha'penny a year to people who did, or did not, attend Sunday schools in four villages in the middle of Cardiganshire. Had I been negligent in my duties, I do not believe enormous suffering would have occurred. However, in such a case I would certainly have welcomed being presented, on becoming a trustee, with a document to record that I at that time had undertaken a trusteeship. Such a document would have recorded the facts. So far as I can see, nothing in the amendment of the noble Baroness would impose any great bureaucratic burden on anyone. I hope the amendment commends itself to the Government.

Baroness Phillips

My Lords, I, too, wish to support the amendment. I have been involved with charities for a long time. I am ashamed to say that I was a trustee of two charities before I suddenly realised—perhaps as a result of hearing someone speak in this House—the enormity of the task I had undertaken. Charities now seem able to become limited companies and they do not appear to be aware—unless they are limited by guarantee—that their trustees face such large responsibilities. As a movement, charities do not always inform the innocents that they try to rope in to help them of the responsibilities they face. It is important that a sound document should be provided to inform people of their responsibilities. This is a good amendment and I am sure the Government will accept it.

Lord Brightman

My Lords, I also support the spirit of this amendment. In the case of a private trust there will always be identified beneficiaries. A person who accepts the office of trustee of a private trust will appreciate his responsibilities towards those beneficiaries. There will probably be a family solicitor in the background who can explain the duties of the new trustee if the latter is unaware of those duties. However, the position is different in the case of a charitable trust. There will be no identified beneficiaries. The new trustee may well not appreciate why he is there and what he is meant to do. There may well be no solicitor in the background.

In the case of a local charitable trust, the position of trustee may well have devolved on the new trustee ex officio and he will be even less likely to appreciate his responsibilities. I believe something along the lines of this amendment is worth consideration.

Baroness Elliot of Harwood

My Lords, I wish to support the amendment. I have spent a great deal of my life as a trustee both of large public trusts, such as the Carnegie UK Trust, and also of private trusts. I am absolutely certain that the provision we are discussing is important and should be treated with the greatest possible respect. The amendment would be a successful addition to the Bill. I hope the noble Earl will accept it.

Lord Donaldson of Kingsbridge

My Lords, I, too, wish briefly to support this amendment. Like many other noble Lords I have been a trustee of all kinds of bodies, although I believe they have mostly faded out now. The matter I am never quite sure about that which the noble Baroness referred to earlier; that is, the position of a company limited by guarantee. I have always assumed that if one is a member of an executive committee of a company limited by guarantee and that company goes bust, one's maximum liability is £1. The usual limit of a company limited by guarantee is £1. There are clearly fraudulent practices which would enable people to get round this position and the position needs to be clarified as it is not at all clear at present. I do not know where we stand and therefore I certainly support the amendment.

Baroness Macleod of Borve

My Lords, I am a trustee of a number of charities. I am wholeheartedly in favour of the amendment, but I believe the drafting could be widened a little. I should add that one of the responsibilities of those who are appointed as trustees should be a requirement to attend trustees' meetings. Sometimes people take on the post of a trustee because they feel it is an important function—it is an important function in society—but they then find they have other meetings to attend or they are not particularly interested in being a trustee. Nevertheless, they still face certain responsibilities as trustees. Many trustees that I know of do not realise the responsibilities they have taken on as regards administering funds that have been collected by the charities concerned. I hope my noble friend the Minister will agree to insert this amendment into the Bill.

Viscount Brentford

My Lords, speaking as a solicitor I must say I have a great deal of sympathy with this amendment because from time to time trustees ask me what their duties are. This is a real problem and the amendment tries to meet it. However, I have a number of questions which I hope my noble friend the Minister will address. I should like to know how this provision would work in practice. There are, of course, ex officio trustees who may hardly even know when they have become become trustees. When new trustees are appointed to a small charity, will that charity remember to give the trustees the printed form? I should like to encourage the Charity Commission to provide this form. I have prepared a form which I distribute to trustees when they ask me about their duties but an officially prepared form from the Charity Commission would be a great support to trustees. However, I am not sure the amendment is the right way to deal with this matter.

Earl Ferrers

My Lords, the speech of my noble friend Lord Brentford was short but nevertheless it encapsulated almost every relevant point of the matter we are discussing. All of your Lordships are concerned that trustees should be aware of what they are taking on. The noble Baroness, Lady Phillips, said she has become a trustee on a number of occasions without realising what exactly she was taking on. I believe many people accept these positions of great responsibility without realising what they are taking on. I sympathise greatly with my noble friend Lady Faithfull who, through her amendment, is trying to sort out this matter.

Upon registration of a charity the Commissioners send to the trustees a comprehensive information pack about their duties and responsibilities. This also contains literature about other sources of advice for trustees and about providers of training for trustees. One recommendation of the NCVO report, Effectiveness in the Voluntary Sector, was that every new trustee should read a copy of the Commissioners' booklet entitled Responsibilities of Charity Trustees.

My noble friend Lady Faithfull said that it is a good booklet. She expressed an anxiety, repeated by my noble friend Lord Brentford, when she said that new trustees are not automatically given a copy of the booklet. I believe it would be difficult to make that a legal requirement. However, trustees could ask for a copy of the booklet. Charities should make it their duty to give new trustees a copy of the booklet. Copies can he obtained from the Charity Commission.

The difficulty with the amendment of my noble friend is that it seeks to impose a duty without any sanction for non-compliance. My noble friend Lady Faithfull referred to a person who said he would refuse to sign a form. My noble friend told him it did not matter if he did not sign the form. However, we must ask ourselves what would happen if a new duty were imposed without any sanction for noncompliance. What is the point of placing an obligation on someone to sign a form if there is no sanction for not signing that form? Even if the form was signed it would not make any difference to the legal position of a trustee, so I find it difficult to advise your Lordships to accept the amendment, although I am deeply concerned that the spirit which lies behind it should be pursued.

I think the best way would be for us to get trustees to adopt the practice by encouraging them as opposed to compelling them. It is clearly in their own interests and those of the charity that they quickly become knowledgeable about what it is that they are taking on. It may be that a person who is not keen to learn about his duties and responsibilities should not be appointed to that position in the first place.

I reiterate my support for my noble friend's intention, which is most laudable, in tabling the amendment. However, for the reasons that I have given, I do not consider it would be suitable to put it into the Bill.

The National Council for Voluntary Organisations and the Charity Commission have set up a working party which will examine the question of training and support for trustees. We shall have to wait to see what its findings are, but I would hope that we would be able to support the implementation of its recommendations. That approach is the one most likely to lead to the proper understanding by trustees of their responsibilities rather than the amendment of my noble friend.

5 p.m.

Lord Beaumont of Whitley

My Lords, the noble Earl said that it was difficult to make it a legal requirement, but he does not appear to have produced any great backing for that statement. Perhaps he could explain to us in rather more detail why it is impossible and why a person cannot just legally fail to become a trustee.

Earl Ferrers

My Lords, some charities change their trustees fairly frequently. I suggest that it would be difficult to impose a duty on the Charity Commissioners to prescribe a form to all new trustees because the Charity Commissioners do not know at each time when all the trustees are going to be changed. As I have said, what would be the position of a person who is given the form but who refused to sign it? Under the amendment that would be part and parcel of a trustee's obligation.

I can only come back to what I said in the first place. It is difficult to make this a legal requirement either upon the Charity Commission or upon the new trustees. This is something which charities themselves ought to take into account.

Baroness Faithfull

My Lords, I should like to thank noble Lords who have spoken to the amendment. I fully appreciate what my noble friend the Minister has said, but it is somewhat nebulous. It might be right if everybody did what he said that they should do, but they do not. Up and down the country, particularly in view of the enormous number of small charities that have been set up recently—for instance, for the Romanian children—many people have taken on trusteeships. How can the gap be bridged? How can the trustees be informed by the Charity Commission or the people setting up the trust, who do not even know that such books exist on the duties of trustees? I understand the point that my noble friend the Minister is making, but I have to say that it is not really valid. There is no way of bridging the gap without something of the kind proposed in the amendment.

I apologise sincerely for having raised this matter at a late stage of the Bill. I shall withdraw the amendment, discuss the matter with my noble friend the Minister and then return to it at the next stage of the Bill.

Amendment, by leave, withdrawn.

Clause 3 [Registered charity's status to appear on official publications etc.]:

Lord Houghton of Sowerby moved Amendment No. 5: Page 3, line 12, after ("characters") insert ("and in the case of paragraph (a) of this subsection shall require to be stated also the names of the trustees of the charity").

The noble Lord said: My Lords, this amendment is complementary to the matter we have just been discussing. It is time that trustees taking on such responsibilities should be nailed down. There is too casual an approach to people to be trustees. I would have supported the amendment of the noble Baroness who has just spoken, but we are all under pressure tonight to make progress on the Bill.

My amendment is to reinforce the provisions of the Bill. Noble Lords will see that Clause 3 states: Where a charity is a registered charity, the fact that it is a registered charity shall be stated in English in legible characters— (a) in all notices, advertisements and other documents issued by or on behalf of the charity and soliciting money". So these documents are money documents, solicitation documents. Then there are conditions about the definition of the charity to appear on other bills of financial importance.

My amendment proposes that all notices, advertisements and other documents issued on behalf of the charity and appealing for money shall contain the names of the trustees; not their addresses; not limited to three but all of them, whether there are more or less than three.

This is a desirable attempt to bring the faceless trustees out of their obscurity and let people see who they are. This is of great importance in connection with charities which are making enormous effects in fund raising, which are endeavouring, by post and other means—by taking full-page advertisements in The Times, for example—to get financial support. Where they are soliciting money, the names of the trustees should appear in the advertisement or notice.

Your Lordships will have received many envelopes containing charitable appeals. I save them up every year, and they amount to a very large number, especially at Christmas. Who are they from? There is the name of the charity—which will now have to make clear that it is a charity, which the law does not require it to do at present. We know that that will carry certain obligations, but who is running the show? Who are they? We find on these appeals "Director of Fund Raising", "Finance Director", "Appeals Controller" and other members of the professional staff of the charity.

This is an industry and we might as well begin to call it an industry, just as the building society movement volunteered to call itself an industry. They now employ professionals in ever-growing numbers on ever-rising salaries because they are having to compete with commercial standards of pay for recruitment to positions of great importance in fund raising and administration. I shall not question any charity that might have to pay more money to get professional people than it would wish.

But that is not enough. We want to know who are the trustees who are running the show and who accept responsibility for it. If they want to communicate with us, let them do so and disclose themselves. I resent having appeals addressed to me by a bureaucrat in a charity suggesting that he has some special claim upon my emotional responses, my generosity and vulnerability. We are all fools when it comes to generosity, and one of the great features of our society is that we often feel happy to indulge in it.

This is an industry peculiar to Britain. We are one of the few countries in the world which have a charity industry. It began with Henry VIII when he dissolved the monasteries. Prior to that time, charity—which truly means the relief of poverty; it does not mean some of the responsibilities that charities are undertaking under the wider interpretation of the Charity Acts at the present time—was undertaken by the churches. The relief of the poor moved from the churches to charities and that is the origin of our charitable movement. It has grown ever since. We should now decide that it is a growing element in public affairs and that some stricter conditions should be applied when appeals for money are made to the public.

Some people in the charitable world have already suggested that there ought to be a charity tax; that we should get rid of the appeals and all the paper that passes through the post and so on and leave it to a charity tax. I regard that as complete nonsense. However, it is clear how people's minds are moving. We have certainly got to the point where people are asked to respond more freely to charitable appeals by having money taken out of their pay packets rather than taking it out of their pockets. What they never see they never miss—that is the clue to pay-as-you-earn, which is the biggest pick-pocket industry in the world.

In those circumstances we want to know who has his hands in our pockets. For that reason the trustees should come clean and let us know their names. They may have some significance; we may know who they are; we may give greater credence to the authority of their appeal if we know who they are; or we may find names that we do not know at all. However, I see every reason why trustees, in whose names appeals for money are being made, should be named. Directors of finance, fund-raisers and bureaucrats can play their part, but they are not the people responsible.

I sincerely hope that this amendment will be accepted. I emphasise in conclusion that it relates solely to advertisements and other documents issued on behalf of the charity and soliciting money—wholly to charitable appeals which are issued to the public soliciting money. I beg to move.

Lord Harris of Greenwich

My Lords, I have some doubt about the wisdom of the amendment. I understand the concern of the noble Lord, Lord Houghton, and sympathise with much of what he said. However, the practical problems involved in implementing an amendment of this kind are substantial.

The term "other documents" could certainly include any letter sent out asking for donations to a charity. I happen to be a trustee of a charity which probably has a turnover of two trustees a year. This amendment would mean that the stationery would have to be reprinted twice a year. One has to ask whether costs of that kind imposed on charities would be of any substantial public benefit. I am doubtful whether that would be so.

I could understand the proposition that the names of some trustees should appear; but it seems to me wrong, for the reasons I have indicated, that it should apply to all trustees. I am therefore very reluctant to agree to the amendment.

5.15 p.m.

Lord Jenkin of Roding

My Lords, I find myself in agreement with the noble Lord, Lord Harris of Greenwich, though I have much sympathy with the concern that lies behind the amendment. I should like to take the argument one step further. I recently had the privilege of being invited to join the council of a great charity and follow the noble Baroness, Lady Robson of Kiddington, as a member of the Imperial Cancer Research Fund board. It has hundreds of local branches all over the country which are constantly —and successfully—appealing for the huge sums which keep cancer research going. I am also on the council of the Guide Dogs for the Blind Association. It has 600 or 700 local associations, all of which make appeals to raise money for guide dogs for the blind.

The consequences of passing the amendment would be that every time a new member of the council were appointed to the parent body, as it were, all the stationery, together with the appeal literature and all the documents with which local appeals are conducted, would have to be reprinted. The cost would be astronomical. It would make it very difficult for those bodies to replace a trustee who died or one who reached the distinguished age at which the rules of the charity may require him to stand down.

Quite honestly, although I understand the noble Lord's point, the large national charities—they are sometimes called the Big 10—which get together to consider their interests and so on, would be absolutely horrified if they found the amendment of the noble Lord, Lord Houghton, in the Bill.

Lord Swinfen

My Lords, I should declare an interest in this Bill as I work for a charity. I earn my living that way. I am opposed to the amendment. A large number of very small charities design documents intended to last for many years. They would incur excessive costs in reprinting those documents every time that a trustee changed. A number of other charities have many autonomous branches, each of which may have its own trustees. When a trustee of any branch changed, the documentation for that branch would have to be reprinted. It would put up the costs considerably.

I appreciate and quite understand the need for members of the public to be able to find out who are the trustees. That can quite simply be done by writing to the charity concerned which, as I understand it, would have a duty to disclose the names of the trustees but not necessarily their addresses.

Baroness Mallalieu

My Lords, we on this side of the Committee entirely understand and support the spirit of the amendment which, as I understand it, is that trustees should not only be responsible but be seen to be responsible and be seen by members of the public to be readily identifiable. However, we regret that we cannot support it, for the reasons which have already been given. It is obviously undesirable to create unnecessary or burdensome paperwork and to increase costs, particularly where many small charities are concerned. Difficulties are bound to arise when there are changes in the trustees. The documents which the amendment requires to carry the information would effectively relate to virtually all appeal documents of whatever kind. One can see the difficulties that would arise if the amendment were to be accepted.

As we heard in relation to earlier amendments, the position is that any member of the public can now discover the names of trustees from the register and have a means of access to it as soon as the charity is registered. Provided that members of the public are aware of that facility, it seems to us that it is not necessary to require charities to go to the expense that this amendment would involve.

Baroness Phillips

My Lords, before the Minister replies, perhaps I may offer a word of sympathy to my noble friend. We appreciate his reference to major industries. It is a little disturbing to find, on going into what is supposed to be a charity—I have been working voluntarily all my life—that the fund-raiser is collecting £40,000 a year. If that money had gone to the charity to start with, it would have been a lot of help.

Unfortunately, the noble Lord said that the trustees should be nailed down. That gave me a rather formidable feeling. I have run charities and had to persuade people to be trustees, explaining to them exactly what is involved. I know that one would never get them if they thought that their names would be emblazoned on the notepaper because lots of other people would also want to have them. I have found a good trick. I say that I am willing to be a patron. So far as I understand, a patron has no responsibility except for his name to adorn notepaper. Perhaps I should not say that in front of the Government who may then bring an amendment to include patrons in the Charities Bill.

Perhaps I may extend a word of sympathy to the noble Lord, Lord Houghton of Sowerby. We understand what he seeks to achieve, hut do not believe that the amendment meets the case.

Earl Ferrers

My Lords, I agree with the noble Baroness. We all understand what the noble Lord, Lord Houghton, seeks to achieve. However, for reasons explained eloquently by other noble Lords I do not believe that the amendment is suitable.

Clause 3 already requires registered charities to state that they are registered charities. They have to do that on a number of documents including, but extending wider than, fund-raising notices and advertisements. The reason is to make it clear to anyone reading one of those documents that the organisation which issued it is a charity and one which is on the commissioner's register. The reader will then be aware that he or she can find out much more about the charity by consulting the register.

One of the documents which will be open to public inspection on the register will be the annual report which has to be prepared by trustees. As I explained on an earlier amendment, it is the intention of my right honourable friend the Secretary of State that the regulations which he will make prescribing the contents of the annual report will require the report to list the names of the charity trustees. A person presented with a notice or advertisement soliciting funds for a charity will therefore have a clear route to the names of the trustees even if they are not immediately before him in black and white.

For those reasons I believe that the amendment is unnecessary. It could also be considerably troublesome to a number of charities. As my noble friend Lord Jenkin of Roding said, a few charities have a large number of trustees. The noble Lord, Lord Chorley, is present. He is a distinguished chairman of the National Trust. My understanding is that it has 52 trustees. Their names would have to be printed on all notices, advertisements and all other documents relating to the National Trust. One can imagine the problems that that would create.

A more widespread objection was identified by the noble Lord, Lord Harris of Greenwich, and my noble friend Lord Jenkin. Many charities have arrangements which require at least one or all of the trustees to stand down each year. Where the trustee body changed frequently, the documents which bore their names would also have frequently to be altered to avoid commission of the offence under subsection (3) of the new Section 4A. That would obviously be inconvenient and time consuming. As many noble Lords said, it would be costly.

While we all understand the reasons for the amendment, I hope that the noble Lord, Lord Houghton, will understand that it would be better not to put the provision on the face of the Bill.

Lord Houghton of Sowerby

My Lords, we have spent one half hour on a Statement in the middle of a debate which, we have had impressed on us, is urgently desired to be completed today. Therefore we must do our best.

The objections that have been raised have been grossly exaggerated. There are not that number of trustees throughout the country in many charities. However, I shall not argue with those who are trustees or who would not wish to receive the publicity that publication of their names might entail. I therefore beg leave to withdraw the amendment because I have a more important amendment to debate later.

Amendment, by leave, withdrawn.

Lord Allen of Abbeydale moved Amendment No. 6: Page 3, line 27, after ("charity") insert ("having a gross income in its previous financial year which exceeds £25,000").

The noble Lord said: My Lords, as this is the first time that I have spoken today, I begin by saying that I appreciate all that the Minister and his officials have done to meet a variety of points that we raised in Committee. I do not wish to waste time as we work through the shoals of amendments later by leaping up each time to say thank you. Perhaps this may be taken as a general expression of appreciation.

I have tried to limit the amendments that I put down at this stage in the hope of shortening the proceedings. With some reluctance I decided not to pursue the point that I raised on the clause in Committee about which I remain a little unhappy. However, I must raise one point. It is the subject of the present amendment, and relates to the creation of criminal offences.

It is one thing for a big charity with paid professional staff to be put under certain obligations. I go along with anything that tells against large-scale fraud. But it is quite another to impose these criminal sanctions on small charities. Let us take an example. If I am a trustee of a small charity which decides to give £50 to help someone to buy some special bedding, and the well meaning but not very efficient lady who has been dragooned into serving as treasurer forgets to put the name and number of the charity on the cheque, then apparently I am guilty of a criminal offence. It seems to me that the burden of proof is reversed and that to establish my innocence I have to prove that I took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. We have an amendment on that point later.

At Committee stage, the Government argued that it was perfectly all right because the risk of prosecution was minimal since no prosecution under the Bill could take place without the consent of the Director of Public Prosecutions. However, to my mind that makes it rather worse. I have spent quite a lot of my career trying to persuade other departments not to use the criminal law for propaganda purposes. Yet we risk creating an offence, but say, "It is quite all right because people will not be prosecuted". It seems to me much better to except small charities from those onerous provisions and to take £25,000 as the dividing line which the Government propose in another context.

It is not as though small charities would then be acting in a void if there were complaints that they were not carrying out the requirements of the section. They would still remain subject to the discipline of the Charity Commission.

One special problem has arisen in relation to small charities. Some of them put their money into building societies in the hope of obtaining a slightly better rate of interest than the banks will pay. If they make a payment, the building society does not issue a cheque book but itself makes out the cheque and sends it to the happy recipient. I wish to have it on the record that charities which follow that procedure are not regarded as being in breach of the requirement that cheques purporting to be signed on behalf of the charity carry all those requirements.

I believe that the clause makes heavy weather of the procedure for small charities. It could well act as one further discouragement to anyone contemplating becoming a trustee. I beg to move.

5.30 p.m.

Baroness Hilton of Eggardon

My Lords, it is always a pleasure to support the noble Lord, Lord Allen, and in particular to support him in this amendment about which we argued in Committee. I was encouraged by what the noble Earl, Lord Ferrers, said earlier; that trustees should be encouraged and not compelled. That appears to be relevant in relation to this amendment.

There will be a considerable burden on small charities to understand the Bill, let alone to comply with some of its detailed requirements. In doing so they should be subjected to advice and encouragement by the Charity Commissioners rather than to the full force of the criminal law. It would be a considerable burden on the criminal justice system, which already is grossly overburdened, to pursue many minor errors of failure to include all the details on the various paperwork of charities.

The level at which one might consider a charity to be small is arguable. However, it is essential to exclude small charities from the intolerable burdens of bureaucracy. Subjecting trustees to criminal proceedings in such circumstances is using a sledgehammer to crack a nut. It is not appropriate and it would act as a deterrent. I have pleasure in supporting the amendment.

Viscount Brentford

My Lords, I am not totally happy with the wording of the Bill as presently drafted. Noble Lords may have the option of choosing the amendment tabled by the noble Lord, Lord Allen, or Amendments Nos. 7 and 8 tabled by the noble and learned Lord, Lord Simon of Glaisdale. I am more attracted to those of the noble and learned Lord, Lord Simon. To my way of thinking, £24,000 is a substantial income for a charity. The responsibility for making a trustee privy to default is more relevant. Therefore, I prefer to see this amendment withdrawn and the following two amendments accepted.

Lord Congleton

My Lords, I wish to speak in support of the amendment. I had not intended to speak, but this afternoon a piece of paper slipped out of the rest of my papers. Written on it was a quotation which I noted a few weeks ago. It is by Edmund Burke and reads: to love the little platoon we belong to in society, is the first principle … [indeed the germ] of public affections". The little platoon to which I am pleased to belong is a small village community in south Wiltshire where I have lived for 32 years. My experience has been of small and medium-sized charities in that county and in the whole region.

Last week I was invited to a seminar in a small village in Wiltshire. Representatives of local voluntary associations and charities active in the county had also been invited. I arrived late expecting to find between 15 and 20 people in a small room around a table. I knew that we were to hear expert advisers. To my astonishment—I should have known better—60 people were in a room clearly designed to hold only 40. I was told that 25 people had been turned away. Most of those people were concerned with small charities in the county. Others were concerned with larger charities operating in the county, but they were interested in the provisions of the Bill. We heard from them and they heard from us.

On returning home, I reflected upon what I had heard and seen at that seminar in the middle of Wiltshire. I was struck, first, by the enormous number of people present. They were interested in the provisions of the Bill which will affect them if it becomes an Act. Secondly, I was struck by the fact that I am fortunate to be a citizen of a nation in which so many people are prepared to go about doing good things on behalf of their fellow human beings with no hope of reward or personal gain. In my view, such people are to be encouraged and supported in that.

There was last week in that room in the middle of Wiltshire evidence of immense good will. When reading the amendment, I reflected that it was directed to the smaller charities. One of the messages that the meeting appeared to be throwing up was, "Please, can we have fewer bureaucratic requirements thrown at us? Please, can we have less red tape? Please, can we be absolved from some of the more onerous responsibilities which the Bill appears to be throwing in our direction as smaller charities?".

I am happy to support the amendment. I think of the little army made up of little platoons in that room in Wiltshire. It was a volunteer army, which I am told is the best kind. Its members had no hope of personal reward and were not seeking personal gain. I repeat that in my view such people should be encouraged and supported in their good deeds and I am happy to support the amendment.

Lord Mottistone

My Lords, I wish to support the principle of what was said by the noble Lord, Lord Congleton. However, I am worried about one provision in the amendment; I too believe that £25,000 is too high and I should like to see a lower figure. Many of the charities in Wiltshire about which we have heard will probably have an income of less than £10,000 rather than up to £25,000. Therefore, I believe that the principle of the amendment is right but that the figure is too high.

The Earl of Erroll

My Lords, I wish to comment on what constitutes a small charity. I am chairman of the Royal Caledonian Ball which holds one ball each year. We take about £50,000 in ticket sales. A little more than half that amount pays for the expenses of the ball. Therefore we raise approximately £20,000 for the Royal Caledonian schools, the Queen Victoria schools in Dunblane and a few other charities. It is a one-off event and we have one part-time secretary who is paid a tiny honorarium. The services of other people are given voluntarily. I consider that to be a small charity but the amount of money handled briefly is fairly large.

Lord Harris of Greenwich

My Lords, in following the point made by the noble Lord, Lord Mottistone, if the Minister were to say that the Government would prefer a different figure, that would be acceptable to many noble Lords. However, I agree with the central proposition put forward by the noble Lord, Lord Allen of Abbeydale. I believe that it is unnecessary to use the criminal law or the threat of it against trustees of small charities. We can argue about the precise figure, but the principle of what was said by the noble Lord, Lord Allen, was entirely right. As he correctly said, there is the discipline of the Charity Commission as a fall-back position. However, I do not regard as an answer the suggestion that no proceedings will be commenced without the authority of the Director of Public Prosecutions. I hope that the Minister will be open minded. If he objects to the figure of £25,000 but is prepared to substitute another figure, many of us would find that acceptable.

Earl Ferrers

My Lords, perhaps I may say at the outset that I am grateful to the noble Lord, Lord Allen of Abbeydale, for the kind remarks with which he prefaced his address on the amendment. I greatly appreciate them. The purpose of the new Section 4A, which will be inserted in the Charities Act 1960 by Clause 3, is to alert people who see or handle any of the documents referred to—especially those who are being asked to give money to the charity—that the documents are produced by a body which is a registered charity. Where the statement appears it will immediately inform people that details about the body can be found in the central register of charities. That is the whole ethos behind the provision. It is just as important that that fact should be made known in the case of a small charity as in the case of a large charity.

My noble friend Lord Brentford said that he was worried about the figure of £25,000, as did the noble Lord, Lord Harris of Greenwich. My noble friend Lord Mottistone said that in Wiltshire there are many small charities. I do not know whether there are many small or large charities in Wiltshire, Hampshire or anywhere else. However, I can tell my noble friend Lord Brentford that if Amendment No. 6 were accepted, 76 per cent. of charities would be excluded from the requirement to state that they were registered charities. That is far too high a proportion. I do not believe that the requirements of the clause will be unduly onerous or costly. Sufficient time will be given before the clause is brought into force for existing stocks of various documents to be exhausted and new ones bearing the required statement to be ordered. Many charities already put that statement on most of their documents.

Lord Allen of Abbeydale

My Lords, I wonder whether there is a misunderstanding. I do not suggest that those charities should be exempt from the ethos of the clause and the requirements about giving information. I am concerned as to whether there should be the backing of criminal sanctions for the small tiddlers.

Earl Ferrers

My Lords, I understand that. Of course, when a requirement is put into a Bill, it carries some sanction. The noble Lords, Lord Allen of Abbeydale and Lord Harris of Greenwich, dismissed the fact that the Director of Public Prosecutions will be involved before any prosecution is entertained. That is to ensure that no prosecution is brought frivolously or that prosecutions are brought willy-nilly.

The noble Lord, Lord Allen of Abbeydale, said that he has spent much of his time trying not to put into Acts of Parliament laws which cannot be enforced. I say with the greatest respect to the noble Lord, Lord Allen, that that is precisely what his amendment will achieve because it merely exempts the trustee of a charity from prosecution. It is unsatisfactory to have a duty which cannot be enforced.

The noble Lord, Lord Allen, referred to building society cheques. If those cheques are made out by the building society, they are not issued by the charity and will not have to carry the charity's name. I hope that that will satisfy the noble Lord on that point.

Lord Swinfen

My Lords, Section 4A(1)(a) states: in all notices, advertisements and other documents issued by or on behalf of the charity". Surely a building society cheque would be issued on behalf of the charity.

Earl Ferrers

My Lords, I do not believe that that is so because it will be issued on behalf of the building society. That is from where it emanates.

I return to the basic point made by the noble Lord, Lord Allen. I realise the anxieties expressed by the noble Lord, Lord Allen, and other noble Lords. If there are to be registered charities, then the registration should apply equally across the board whether the charities are large or small. However, your Lordships have expressed anxiety on this matter and I am prepared to look at it again. I cannot give an undertaking that I shall reach the conclusion which some of your Lordships would like me to reach but I shall consider the matter.

Lord Allen of Abbeydale

My Lords, I am obliged for that answer. Perhaps I may just dispose of the building society Perhaps I may just dispose of the building society point. I was concerned as to whether that would be covered by paragraph (b) rather than paragraph (a). I am content to accept the assurance given by the noble Earl which is now on the record. Therefore, that point is disposed of.

As regards the reference to the amendments tabled by my noble and learned friend, it seems to me that they deal with a somewhat different point. I rather sympathise with the amendment concerned with reversing the burden of proof, but those amendments do not meet the point which I have been trying to meet with this amendment.

I take the point that £25,000 may be too high and may exempt too many charities. However, I am left, with the whole of my Home Office upbringing, feeling extremely uneasy about creating a criminal offence but saying in the same breath that care is being taken that no one will be prosecuted in the area which we are discussing. Perhaps the Government will think again about this. I shall think about it again and we may have further discussions before the next stage of the Bill.

Earl Ferrers

My Lords, perhaps I may try to ease the anxiety of the noble Lord, Lord Allen of Abbeydale. If one exceeds the speed limit, one is guilty of a criminal offence. However, it is for the Director of Public Prosecutions to decide whether or not to proceed on such a matter. Not everyone who exceeds the speed limit is prosecuted. The purpose of inviting the Director of Public Prosecutions to take account of such matters is to ensure that only those deserving of prosecution will be prosecuted.

Lord Allen of Abbeydale

My Lords, I shall refrain from inflicting upon the House a lecture on speed limits. That is a subject on which one could speak eloquently. I take the point that there is no requirement in the road traffic Acts that prosecutions for exceeding the speed limit can be launched only by authority of the Director of Public Prosecutions.

However, I remind the House that there is another sanction of obligation on the Charity Commission so that we are not leaving this matter in a void. However, there is no point in pursuing this issue further and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 7: Page 3, line 30, after second ("charity") insert ("who has been responsible for or privy to such act or default").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 8, 10 and 11, although Amendments Nos. 10 and 11 fall if Amendment No. 9 is accepted. The same point arises also on Amendment No. 93A and so on in Clause 60, although they have not been grouped together.

I tabled this amendment in Committee and my first duty is to apologise to the Committee that I was not there to move this and other amendments. The reason is purely human frailty. I was concerned in two other Bills and I did not believe that I could manage parliamentary proceedings from 10 o'clock in the morning until 11.30 at night. However, I am grateful to those who moved the amendments which they thought should be discussed in Committee. In this case, the amendment was moved by the noble Lord, Lord Renton, and supported by the noble Lord, Lord Swinfen. I am grateful also to the noble Viscount, Lord Astor, who replied on that occasion on behalf of the Government. To know the views expressed makes my task very much easier.

This clause raises fairly fundamental constitutional principles and profound questions which go to the root of our system of criminal justice, as has already been indicated by my noble friend Lord Allen and the noble Viscount who spoke on that amendment.

Indeed, I pray in aid a great deal that has been said on the amendment in the name of the noble Lord, Lord Allen. The noble Earl, Lord Ferrers, indicated that he would consider further the amendment which has just been withdrawn but, in so far as he did not accept it, it reinforces the argument for the amendments to which I am speaking.

The two fundamental objections to the clause are first, that subsection (3) establishes guilt by association; and, secondly, subsection (5) reverses the normal onus of proof, as has already been pointed out by my noble friend Lord Allen and the noble Lord, Lord Harris.

With regard to subsection (3) the amendment causes the Bill, from line 30, to read, every charity trustee of the charity who has been responsible for or privy to such act or default shall be guilty of an offence". Subsection (4)—the one reversing the onus of proof—is then unnecessary and the onus, by subsection (3), is restored to its normal place; namely, the prosecution. The other two amendments are drafting consequentials on the ones that I have mentioned and I shall not go into them.

When the noble Viscount, Lord Astor, replied he made three points which were also raised by the noble Earl, Lord Ferrers, in regard to the last amendment. The first is the enforcement of the new duties imposed on trustees. I profoundly agree with that but it by no means follows, as was pointed out by my noble friend and the noble Lord, Lord Harris, that the criminal law should be invoked to enforce those duties. The second argument concerned how to prove responsibility and privity; the third was to rely on subsection (4) as a means of defence.

Perhaps I may begin with the first objection; namely, imposing guilt by association. That was not covered on the last amendment. As your Lordships know well, a crime in this country is not committed merely by failure to carry out the duty imposed by law. Something additional is necessary and that is a mental element. Most frequently it is the element of intention but sometimes, alternatively, it is recklessness or serious negligence, or—and this is most relevant here—the definition of a crime may often contain the word "knowingly". It is because subsection (3) obviates all those mental elements, and specifically "knowingly", that it is so objectionable.

It is true that there are certain crimes which are sometimes called crimes of absolute liability where no mental element is required. A good example is the offence of selling liquor to someone under age. It is not only the barman with knowledge who is responsible, but also the owner of the public house. In essence the law says, "This is a serious social evil. You receive the profit from the bar; it is your business to see that no offence is committed. We will not accept the answer that somebody else did it without your knowledge". Obviously that fundamentally differs from this situation. Although we all want to see a duty imposed on the trustees, nobody would say that it is a serious social evil demanding strict liability nor, most importantly, do trustees receive any profit which may charge them with liability.

The second objection was that it would be difficult to prove responsibility or privity. I do not know why it would be more difficult here than in many other cases where responsibility is placed on a person charged with an offence. The instance of the criminal law that occurs to me to be most near this one occurs under the Merchant Shipping Act. It is an offence for a ship owner to allow his ship to put to sea in an unseaworthy condition, knowingly or with responsibility and certainly with privity. It has been laid down that privity in that case means either knowledge or deliberately shutting one's eyes to what is there to be seen—in another branch of the law it is called connivance. With all respect, therefore, I cannot accept that there would be any real difficulty in proving privity in that sense, or responsibility.

Subsection (4) concerns the onus of proof, and the ground was well covered on the last amendment. For good reason it is only rarely reversed in our law. It is reversed when it is a serious matter and peculiarly within the knowledge of the person charged with the offence, when in fact the circumstances raised are presumption of guilt. A common example is the charge of living on immoral earnings. Where a man is charged with that offence it is sufficient to prove that he was living with a prostitute. It is then for him to explain that he was not living on her immoral earnings.

Perhaps another case worthy of mention and which shows that the present case is in contradistinction is when a person is found in possession of stolen goods. It is then for him to explain that they were acquired innocently. The fact raises the presumption. That is under statute and the noble Lord, Lord Richard, will know it as the "Dirty Dogs Act".

It seems to me that none of the three arguments stands up to examination. We are concerned with a serious inroad upon our traditional criminal principles. I beg to move.

Lord Morris of Castle Morris

My Lords, we on these Benches are in sympathy with the amendment so lucidly and carefully set forth by the noble and learned Lord, Lord Simon of Glaisdale. But looking at it in the wider context of the entire Bill, in essence it is perhaps a matter of asserting a proper balance. For example, I strongly support the thrust of subsection (3) which brings home to all trustees the responsibility of their office. Indeed the last time that I rose in this Report stage was to assert the importance of those responsibilities. But the amendment seems to temper that terror with an appropriate degree of common sense. The penalty should be commensurate with the offence; the punishment should fit the crime.

For example, subsection (4) reverses the normal burden of proof, as the noble and learned Lord, Lord Simon, has said, which, although it is not unprecedented—we have had several examples in the past few weeks quoted in aid—is at least unusual and must be regarded in our law as a very powerful instrument to be used on very special occasions. To use that reversal of proof on this occasion for this purpose is rather like taking a drop-forge steam hammer to crack a rather small peanut.

For example, it would be possible for a trustee to be, say, on his lawful occasions in Australia when an order for money or goods is improperly issued on the authority of some other trustee. He would then be liable for all the penalties which are spelt out in these subsections, the wording of which is grave, solemn and sonorous: every charity trustee of the charity shall be guilty of an offence … all due diligence to avoid the commission of the offence". All noble Lords who are learned in the law will know of the power of the phrase "all due diligence". Many a poor person has squirmed in our courts trying to prove that he did indeed exercise all due diligence on an appropriate occasion only to find that he was required by the law to exercise himself day and night in order to prove all due diligence. It is a little unfair that such fierce penalties should descend on people who have not done anything improper. The words in the noble and learned Lord's amendment, are responsible for or privy to", get the balance about right.

6 p.m.

Lord Jenkin of Roding

My Lords, my noble friend Lord Ferrers agreed that he would look at the last amendment again. I find myself persuaded by the arguments of the noble and learned Lord, Lord Simon of Glaisdale. I raise a point with the utmost diffidence because my experience of the law was a very long time ago. I have a recollection that as part of the rules of evidence, if a fact is peculiarly within the knowledge of one particular party then the burden of proof is on him to prove that. That is the position of subsection (4). It would be very difficult for the Charity Commissioners to have to prove the degree of knowledge of a trustee.

If the offence has been committed, it is not unreasonable that it should rest on the defendant to satisfy the court that he did all that was required. As I say, I suggest that with great diffidence. The circumstances that the noble Lord, Lord Morris of Castle Morris, has described—that the trustee should find himself liable and would hope that the Director of Public Prosecutions would recognise that there was reason for not prosecuting—suggests a piece of legislation that I would not be happy to see on the statute book.

I ask my noble friend Lord Astor to look at this matter again and to say that it is so closely related to the previous amendment that they can be looked at together in the light of the arguments of the noble and learned Lord in moving the amendment. That might well be helpful.

Lord Beaumont of Whitley

My Lords, I agree with the noble Lord, Lord Jenkin, on the last point. The Government have not sorted out what they should be doing as regards sanctions in the obligations that they are putting into the Bill. On the one hand, they reply to the noble Baroness, Lady Faithfull, concerning her proposed new clause that it is not acceptable as it is because no sanctions apply to it. On the other hand, they are so keen to have sanctions where matters are added that they are putting in criminal sanctions which have very little place at this stage of the Bill. Of course there should be criminal sanctions for fraud, but in dealing with such matters there is no place for criminal sanctions at all. I entirely agree that the two amendments should be studied together; namely, the one currently under discussion and the one which the noble Earl has said that he will look at.

Lord Browne-Wilkinson

My Lords, perhaps I may add a word in support of my noble and learned friend's amendment. I had always understood that the criminal law exists to punish conduct which is evil and culpable. There are occasions when there is no other way of producing a sanction when absolute liability is imposed. That is in serious cases when there is no alternative. In this case I cannot see that there is any need to impose a criminal sanction suggesting culpability. The noble Lord, Lord Houghton, has already nailed the volunteers for voluntary work; this clause would seem to hammer them as well as nail them.

As I understand it, the Charity Commissioners will have powers under the Act to deal with failures to comply with the requirements of Section 4A. All that is needed, consistent with a proper constitutional approach to human liberty and freedom, is a criminal sanction when the trustee has been at fault and not an absolute liability. I ask that this issue be reconsidered as a matter of justice.

Viscount Astor

My Lords, as the noble and learned Lord, Lord Simon, said, he tabled this amendment at Committee stage and it was moved by my noble friend Lord Renton. I answered the amendment then and I shall attempt to do so again today. In doing so I hope to show my noble friend Lord Jenkin that the arguments are rather different from those attaching to the previous amendment and that there are rather different circumstances.

The new provision to be introduced by Clause 3 provides an important new duty on trustees of registered charities—that is, to ensure that certain types of document issued by or on behalf of their charity include a statement that the charity is so registered. That will represent a signal that the charity in question is subject to the supervision of the commissioners. It will also signal to those entering into business or legal transaction with the charity that particular legal considerations apply.

The provision in Clause 3 is important and I believe that noble Lords agree that there should be an effective sanction for non-compliance. The noble and learned Lord, Lord Simon of Glaisdale, is however concerned about the wording of the existing offence in the Bill. The noble and learned Lord's amendments would limit the commission of an offence under this clause to those trustees responsible for or privy to the act or default in question. I am not sure how the courts will be able to tell whether a particular trustee is responsible for, or indeed privy to, a default which may consist of the omission of the required statement from a particular invoice issued by the charity. It does still seem to me to present an impossible task.

It seems to me also to be right that the law should treat trustees as collectively responsible for defaults in respect of their statutory duties. In this way trustees will be encouraged to establish a regime where any document issued by the registered charity soliciting money or other property states the fact that the charity is registered. However, a defence is provided by subsection (4) in respect of a trustee who can show that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence. In this way, the new provision will not punish trustees where they have done all that they can to ensure that the law is complied with. However, that sets a higher test than that proposed by the noble and learned Lord. I believe that the test is an appropriate one.

The noble and learned Lord referred to Amendment No. 93A which is not grouped with these amendments. However, the arguments are very much the same on this amendment as they are on the later amendment. It may help the noble and learned Lord if I say that now. We believe the wording of the provision as it stands to be appropriate to achieve a wider liability under the provision as it is drafted.

Lord Richard

My Lords, before the Minister sits down perhaps he will answer one question. He used the phrase that we should make the trustees "jointly liable", or some such phrase. At any rate the concept of joint liability by all the trustees was implicit in his justification for the clause. Does not the Minister realise that we are not talking about civil liability for the trustees? We are talking about a criminal offence. Does not the Minister feel that the idea of having joint liability for a criminal offence, in circumstances in which one individual can be convicted of that offence even if he does not know anything about it, is going a little too far?

Viscount Astor

My Lords, the trustees are responsible for putting a regime in place. That is the important point and, as I said, it is something we want to encourage. I have also said that there is a defence provided by subsection (4) in respect of a trustee who can show that he took all reasonable precautions.

Lord Simon of Glaisdale

My Lords, I am most grateful to all your Lordships who have contributed to this debate. The Government must realise that the overwhelming, possibly unanimous, sense of your Lordships' House is against them on this matter. The noble Viscount did not even give a promise of reconsideration. Surely it must give the Government cause to reflect when my noble friend Lord Allen says that what is proposed is grossly against Home Office tradition. So it is.

The noble Viscount used the words "collective responsibility". That again is something one does not wish to hear in the mouth of a Home Office Minister. It is all right, I suppose, for the Nazis to wipe out the whole village of Lidice because an act of terrorism has been committed. Collective responsibility of men, women and children is not the principle of our law. In withdrawing the amendment I ask the Government to consider all that has been said in this debate. Every opinion has been against them, including the great authority of my noble friend Lord Allen that I pray in aid. I ask that there should be further consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved].

6.15 p.m.

The Deputy Speaker (Lord Skelmersdale)

My Lords, in calling Amendment No. 9 I must inform the House that if it is agreed to I cannot call Amendments Nos. 10 or 11.

Lord Coleraine moved Amendment No. 9: Page 3, leave out lines 38 to 43.

The noble Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendment No. 94. These amendments reflect anxieties which have been expressed to me by the Law Society concerning those who advise charities, or those who advise the professional fundraisers of charities, whether they be solicitors, barristers, accountants, or other professional people who give advice for fees, or voluntarily, over long and unsociable hours. Under those provisions such people seem to run the risk of assuming criminal liability where I very much doubt that to be the intention of the Government.

I should like to make clear to the House, as I have to my noble friend, that these are purely probing amendments. I say that because I am not suggesting that the subsections referred to in the amendments should be left out. As I understand it, the clauses imposing criminality follow the sort of clauses which one finds in consumer protection Acts. Having listened to the previous two debates I am not certain that it is appropriate to apply this kind of criminality to the trustees of charities. However, I say most strongly that it is not my intention to express any such opinion in a formal way during the course of this debate.

The form used in the clauses and in the consumer protection Acts is that the organ grinder—that is to say, in this case the charity trustee, the professional fundraiser or the commercial participator—is put under a strict liability, subject to what is generally known as a due diligence exemption. In this case I see two classes of organ grinder's monkey: the employees of the organ grinder, with whom I am not now concerned, and the advisers of the organ grinder. They are both made liable.

The specific phrase in the clause to which my attention has been drawn, and which seems to impose the liability, is that to be found in subsection (5) of the new Section 4A which states: Where the commission by any person of an offence … is due to the act or default of some other person". The words to which I refer are "act or default". What is worrying the Law Society is that people who might otherwise come forward to give advice to charities whether for fees or voluntarily, may be badly deterred by those words. They will feel that if they give the wrong advice, or if they fail to give advice, the words will catch them. The idea that solicitors or other professionals who give wrong advice, or fail to advise, should come within the purview of the criminal law is not one that immediately appeals.

I can envisage the sort of answer that one might give to my proposition. I expect to hear that the words "act or default" are often interpreted in this kind of legislation as meaning wilful or wrongful act or default. I can see that that is the case. I also expect to be told that "default" may not necessarily be equivalent to omission or failure to act. That also is the case in some of the consumer protection cases. However, I do not think it right to take the fact that it may he the law as being a good reason to put into the Bill something which will have the effect of deterring those who might otherwise come forward to give their advice.

Anyone who is connected with or knowledgeable about the position of the advice professions will be aware that over the past 20 years or more the giving of advice, whether for a fee or voluntarily, has within the law and the development of the law become rather more hazardous.

I hope that my noble friend will feel able to show sympathy for this point, which is a new one that has only recently been brought to the attention of the Law Society. Perhaps it may be possible at a later stage to bring forward, or accept, an amendment to cover the point. I beg to move.

Lord Richard

My Lords, I support the amendment. Following on from the previous debate perhaps I may say that the Government have got themselves into a tremendous muddle so far as concerns the criminal law in its application to the Bill. I am sorry that the Minister was so unforthcoming in his answer to the previous debate. It was with considerable reluctance that I heard the noble and learned Lord, Lord Simon of Glaisdale, beg leave to withdraw his amendment. For the first time since I came to the House I was tempted to shout "No". But there it is.

I find subsection (5) extremely difficult to understand in the context of the whole of the new section. I shall go through it in stages as I see it and no doubt the Minister will tell me whether I am right or wrong. As I understand it, an offence is committed if some documents are put out which do not have on them what they are required to have under Section 4A(1) (a). Once that has happened, prima facie, under subsection (3) every charity trustee is liable. They are liable on summary conviction and it looks as if it is an absolute offence. It is a defence for the charity trustee to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. How does he do that? He does that presumably by invoking subsection (5). In many circumstances he would invoke subsection (5). He would show that the offence which has been committed was due to, the act or default of some other person". That exonerates the trustee and moves responsibility on to the other person. However, it is still, as I understand it, an absolute responsibility.

Subsection (5) goes on: that other person shall be guilty of the offence". The other person does not have the defence of "all reasonable precautions" and "all due diligence" which is available under subsection (4) to the trustee when the trustee is being charged under subsection (3). It seems to me that all that subsections (4) and (5) have done is to move the absoluteness of the offence away from the trustee and on to another person who may have taken all reasonable precautions and exercised all due diligence. That cannot be right. If that is the effect of the subsection—on the face of it it looks as if it is—the Government have got themselves into an almighty muddle. The Minister should take the amendment away, having regard to the opinions expressed in all parts of the House during the previous debate and in relation to this one, and look at it again.

Viscount Astor

My Lords, my noble friend Lord Coleraine has talked to officials in my department and has been kind enough to explain his concerns to them. We do not see how advice from solicitors given to trustees could render them vicariously liable for either of these offences granted their subject matter. Both clauses place clear duties on trustees, in the case of Clause 3, and professional fund raisers and commercial participators, in the case of Clause 60. If the trustee, fund raiser or commercial participator fails to meet these requirements he is guilty of an offence. If the requirements are not met because someone else has failed to carry out their instructions then that other person is guilty of the offence.

It is important to say that if one puts duties on someone one must also put in place sanctions if he does not carry out those duties. I understand my noble friend's narrower concerns. I hope—to paraphrase the noble Lord, Lord Richard—that I have been able to give a more unmuddled reply than usual to those concerns. We do not think that his worries about advice from solicitors can render them liable for these offences. We shall look again at the points that he has made but we do not think that this is a problem. I hope that what I have said will go some way to satisfying my noble friend.

Lord Jenkin of Roding

My Lords, before my noble friend sits down, is he also prepared to look at the highly persuasive point made by the noble Lord, Lord Richard, that the defence in subsection (4) would not apply to the other person? Even accepting my noble friend's point about solicitors, if some other person who has undertaken to do it has not done it but for good reason, that defence should be open to him. I think that the noble Lord, Lord Richard, is right. I do not think that it is under the Bill as drafted.

Viscount Astor

My Lords, as my noble friend Lord Jenkin said, we are talking about the same thing. By looking at one part of it I would be happy to look at the effect on someone else. Although I say that we will look at it, we do not think that it is a problem. However, we shall look carefully at all the points that have been made.

Lord Simon of Glaisdale

My Lords, is the noble Viscount saying that he will look at the whole clause, because that is what is required?

Viscount Astor

My Lords, I am not saying that. I am saying that we shall look at the points raised by this amendment, which is a rather narrower point than the whole clause which we discussed during the debate on the previous amendment.

Lord Coleraine

My Lords, I leave aside for the moment the wider considerations raised by the noble Lord, Lord Richard, and discussed by my noble friend Lord Jenkin and the noble and learned Lord, Lord Simon of Glaisdale. I thank my noble friend the Minister for saying that he will take away this matter and think about it further. I heard him refer to the kind of liability that I saw advisers assuming to be vicarious liability. It is no such thing. We are not talking about vicarious liability. We are talking about the case where, if a solicitor perhaps fails to give advice as to the correct insertions in notices and advertisements, the charity trustee is liable. The charity trustee perhaps says, claiming the due diligence defence, "I consulted my solicitor and was not told about this". The solicitor is then directly liable under subsection (5) of new Section 4A. A real concern is being expressed and I hope that it may be possible to meet the point in some way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 and 11 not moved.]

Clause 6 [General power to institute inquiries]:

Lord Houghton of Sowerby moved Amendment No. 12: Page 5, line 28, at end insert: ("( ) In subsection (1) after the words "for particular purposes" there shall be inserted the words "including power to investigate any complaint made by a member of a subscription society or a donor to a society or trust which is a registered charity alleging serious negligence or misconduct, default or mismanagement of the administration of the society or trust to the detriment of the complainant or prejudicial to the interests of the charity."").

The noble Lord said: My Lords, this amendment is of fundamental importance. It seeks to extend the area of jurisdiction of the Charity Commissioners for actions of intervention or inquiry into the affairs of a particular charity. These powers have at different times undergone considerable strain because the Charity Commissioners take a strict view of what their powers of intervention are. They are dependent almost wholly on financial irregularity or internal conditions which may threaten the position of the charity. They are quite different from what I might describe for the purpose of this amendment as the role of an ombudsman.

This amendment amounts to an ombudsman for charities. It is not that one should necessarily be appointed but that the Charity Commissioners should have the power to appoint an investigator for particular matters. Those particular matters are within the scope of what I think would be the role of an ombudsman for the charitable field.

One of the things which is almost completely absent from the charitable industry is democracy. There is virtually no democracy in charity. If one thinks about it, it is money very often vested in the hands of trustees who may begin to make appeals to the public for the purposes for which the charity was created. Those appeals widen, support grows and more and more money goes into the charity.

I can think of several enormous charities which began in that way. No democracy, no subscriber control and no beneficiary intervention comes into operation. Sole control rests in the hands of the trustees. Under existing law they are not bound to render accounts to the Charity Commissioners, but they will be required to do so from now. Under existing law they are not bound to make an annual report to any one, not even to their subscribers, but under the new Bill they will be obliged to issue such a report. Their obligations do not go beyond supplying a copy to someone on request, whereupon a reasonable charge may be made. That leaves difficulties and disputes in charities in a very difficult and unsatisfactory position.

There are some member societies which have constitutional membership and subscriptions paid. In those charities provision is made for a structure which could be called a reasonable measure of democracy. For example, there is, first, the National Trust—and we know what difficulties beset that organisation at present over fox-hunting; secondly, there is the RSPCA which, many years ago, was almost split down the middle over fox-hunting; and, thirdly, there is the Family Planning Association which certainly was not split over fox-hunting, but which was split over another moral issue which caused a good deal of difficulty in parliamentary circles of late. I refer to the termination of pregnancies. I am not aware of any other charities of any size or importance, besides those that I mentioned, which have a so-called democratic constitution. All the rest are presumably bound by trust deeds and run by trustees.

Where does the complaints procedure come into the matter? How can you complain about a charity for either the way it has treated you or the way it is operating? The fashion in recent years has been to erect alongside almost every institution in Britain the office of a person known as an ombudsman or, stronger still, a commission which may have the rights of oversight on difficulties arising in institutions. I refer to the building societies. They have a commission. Trade unions also have a commission. Moreover, there are government departments all of which are in the system of the Parliamentary Commissioner, with which I was involved on its introduction.

We have an ombudsman for local authorities and there is one for the National Health Service. There are also consumer councils for former nationalised industries, such as electricity, coal, gas, telephones and public utilities. The whole of our institutional life has now produced this network of referees to deal with disputes which may arise internally within those important elements in modern societies and for which other remedies do not exist.

There are no such referees for charities. They are in a world of their own with a great deal less charity in it than one would expect. The ill-will and antagonism that charitable work creates in some areas is beyond comprehension. I can assure your Lordships of that; indeed, I have had experience of it. I have had experience of all such organisations, including trade unions, building societies, the three charities which I mentioned and others which are now in the system of ombudsmen.

There should be some remedy for those who feel that they have been ill treated by charity. There are some notable cases which appear in press articles from time to time. If one reads an article in the Independent of 16th November 1991, one can see fully publicised the difference of opinion between Miss Mary Moore and the Henry Moore Foundation. I need not enlarge upon it because the full story is told in the newspaper. I am in correspondence with Mary Moore because I happen to have been a lifelong friend of her father. Henry Moore and I joined the Army in 1916, and we were friends until he died at the age of 88. He withstood my appeal to stay alive until 90 so that we could celebrate that anniversary together.

In the organisations that have members, the question arises as to whether there is the power of expulsion, the power to refuse subscriptions or the power to refuse entry. It is pretty well established that most of those societies have the right to refuse entry and the right to refuse the renewal of subscriptions. But what about the right to expel? Here we come to the RSPCA. I am bound to mention the name because I have given the society notice that I must do so. The question of the right of expulsion without satisfactory means of appeal has created bad blood in the RSPCA for a very long time. It has involved court action—unsatisfactory means of obtaining redress in the circumstances—and there is deadlock in particular cases at present.

There is no one to consult. There is no one to suggest that the treatment of a member is contrary to a sense of justice or fairness. I want to open the door of the Charity Commissioners to intercede, if they see fit to do so, in disputes and difficulties which arise in charities which, while not of serious import to the public, have a grave effect upon the internal harmony and efficiency of the organisation involved. The amendment would give the Charity Commissioners the power—no more than that—to make appointments as regards inquiries for particular purposes. That is of great importance. We cannot leave the charity industry in a world of isolated activity, calling upon the public for money, and handling millions of pounds subscribed by the public, without fulfilling some obligations to those who are sustaining its activities.

The very nature of charity work, and charity composition and constitution, precludes people from intervening. There may be nothing for it but to have a row, a scandal, a court case or something of that kind. That leads to a great waste of resources. Some charities have wasted a great deal of money in the courts. In those circumstances, we must ask the Charity Commissioners to be willing to assume powers of intervention and intercession which go beyond the boundaries of their existing powers.

The amendment does not force anything upon the Charity Commissioners. It merely extends the area of their jurisdiction. If that extension of their jurisdiction is rejected, some alternative way of dealing with the problem must be found. That is why I believe that the Bill should be enlarged to give the Charity Commissioners an additional area in which to render good service to charities and to those who work in charities.

I hope that I shall receive a favourable response to my suggestion. If it is not taken up, I can assure your Lordships that it will not lie down. Some remedy will have to be found so that we cease to waste charitable money on disputations which conciliation, advice or help would probably overcome. There is nothing worse in public life than disputes which lead people on either side to take positions of no retreat. They then join battle, give the lawyers a picnic, and the courts work which drags on and on, as has happened in recent years. I beg your Lordships to give serious consideration to this proposal. The amendment can be refused only if it provides so many difficulties that the Charity Commissioners could not cope. The Charity Commissioners will have a great deal to do in times to come. I beg to move.

Lord Peyton of Yeovil

My Lords, it had not been my intention to intervene in the debate on the amendment, but I should like to take the opportunity just to remind your Lordships that this is a Bill which enjoys the general favour and support of noble Lords from all sides of the House. There are 168 amendments on the Marshalled List. We have now reached Amendment No. 12. I need say nothing beyond giving those facts to indicate the need for some expedition.

Lord Moyne

My Lords, time would be saved if the Government were to accept the amendment.

Lord Richard

My Lords, if your Lordships will forgive me, I shall not follow the mathematical speech of the noble Lord, Lord Peyton of Yeovil. I want to say just two words about the amendment. When I first read it, and then read Section 6 of the Charities Act 1960, I am bound to say that the amendment did not seem to add any extra power to the powers already available to the commissioners by virtue of the 1960 Act. It is clear that that is not only what my noble friend Lord Houghton has in mind. He is worried about, and it is something that should be studied and considered seriously, whether there should be some kind of independent grievance mechanism—if I can use some of the modern jargon—in relation to the charities world.

The amendment is limited to, a member of a subscription society or a donor"; in other words, one has to be a member or a donor before one is entitled to complain. That may be all right in terms of an amendment to Section 6 of the 1960 Act, but in terms of setting up a grievance procedure, I am not sure that that provision is comprehensive enough.

This is a major issue which, as far as I am aware, we did not debate on Second Reading or in Committee. Instead of having a major debate on this matter tonight, if the Minister undertook to come back on Third Reading—not necessarily to accept the amendment—we could have a considered discussion of the merits of my noble friend's proposal with which, I am bound to say, I have some considerable sympathy. It relates to whether there should be some kind of grievance procedure; what sort of grievance procedure it should be; to whom should it be available; who should judge the grievances; and what, if any, sanctions should be available. That might produce a healthier charities' world. If the Minister would accept that suggestion it might also produce a shorter debate.

6.45 p.m.

Lord Simon of Glaisdale

My Lords, I want to say a word about the intervention of the noble Lord, Lord Peyton, with whom, for many years, I have generally found myself in agreement. Your Lordships have a constitutional function. If legislation is not properly scrutinised by your Lordships, it will not be scrutinised at all. It is denying your Lordships' role in the Constitution that we should have a list of amendments like this on a Thursday. We embarked upon the Bill at about 3.30 p.m. We had a Statement which took half an hour, and we shall have an adjournment for an hour in order that we may refresh ourselves from the exhaustion of the Bill.

We want to see the Bill on the statute book, but we have a supervening duty to scrutinise it properly. I should have much more sympathy with the Government if they had shown the slightest resilience, and the slightest respect for the overwhelming view of your Lordships, on the clause which introduces guilt by association and the reversing of the onus of proof. It is strange to find a Home Office Minister using the language of a gauleiter in respect of collective responsibility. We have a responsibility here. We are not to be regarded as a legislative sausage machine just churning through government legislation.

Lord Harris of Greenwich

My Lords, I do not intend to become involved in the merits of the amendment, but I should like to follow the point made by the noble Lord, Lord Peyton of Yeovil. He spoke for the overwhelming majority of the Members of the House in that we want to make decent progress on the legislation. We have the central duty, which has been identified by the noble and learned Lord, Lord Simon of Glaisdale, not merely to accept whatever the Government may say when amendments are moved. That would not be our position.

All I would say to the Government in relation to what the noble and learned Lord, Lord Simon of Glaisdale, has just said, is that in future, when there is overwhelming feeling in all parts of the House in favour of a particular proposition, I hope that the Government will see their way to saying that they will at least reflect upon the matter before Third Reading. Otherwise, we shall spend an unnecessary amount of time discussing the Bill, and that would be injurious to the Bill.

Earl Ferrers

My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said that it was the duty of your Lordships to scrutinise legislation. He is entirely right. He said that it was not the business of the House of Lords to churn out government legislation like a sausage machine. Any scrutiny of the amendments to the Bill on the Marshalled List today shows that that is precisely what your Lordships have not done. We have not been churning government legislation out like a sausage machine. We have been trying to understand the anxieties of your Lordships and meeting them wherever possible.

The noble and learned Lord suggested that my noble friend was like a gauleiter, but in my noble friend's defence I have to say that I thought that was being a little too hard because he is not a gauleiter, nor am I, and the Home Office does not consist of gauleiters.

The point made by the noble Lord, Lord Harris of Greenwich, is fair. My noble friend said that lie would consider the matters about which your Lordships are worried. What he did say—and I believe that he was quite right—is that the Government's view was that the proposed course suggested by the noble and learned Lord on previous amendments was not correct. However, of course we intend to consider what your Lordships have said and it would be a discourtesy not to do so.

My noble friend Lord Peyton suggested moving on and my noble friend Lord Moyne said, in a slightly simplistic way, that if the Government would accept the amendment, everything would be easy. However, that would not have addressed the problem which stimulated my noble friend's intervention. He was merely trying to point out that there are about 160 more amendments which we hope to cover tonight. Any expedition on the part of all noble Lords would be desirable. While it is important to legislate properly, it is also important to ensure that the legislation is passed. It would be a pity if too much undue scrutiny resulted in the legislation not being brought about.

Perhaps I may be as concise as possible. The noble Lord, Lord Houghton of Sowerby, expressed concern, but the commissioners already have power under Section 6 of the Charities Act 1960 to do what he proposes in this amendment. Under Section 6 they may, institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes". They may institute such an inquiry into any charity which is not an exempt charity. The commissioners' power of inquiry could scarcely be wider than it already is and it certainly allows them to conduct inquiries in the circumstances set out in the noble Lord's amendment.

The noble Lord, Lord Richard, referred to a grievance procedure but that is going further than the amendment would require. It also goes further than the Charity Commissioners require. If an organisation is a charity, it is up to that organisation to organise its own methods of dealing with grievances at annual general meetings where it has an opportunity. If there is mismanagement or fraud, of course the commissioners can intervene. But if there is a dispute about the charity's operations and policy, without any suggestion of wrongdoing, the commissioners do not have such a power to intervene; nor do they have any locus. This could be an issue for discussion, but it goes wider than the context of the Bill.

Lord Houghton of Sowerby

My Lords, regarding business, I restrained myself during the Committee stage because I had so much to do with the preparation of the Bill. Much that I did bore fruit when the Bill was produced. The matter I now raise has been burning into my soul for a long time. I wondered whether I should let the Bill go through without voicing what I believe is a serious grievance in a growing industry of importance to the public. It is the public I am thinking of here. Although they are probably not directly involved in the grievance problem, the public are interested in being assured that societies that ask for their money and use it in ever-increasing amounts should be well run, efficient, free of corruption and trouble and that everything is conducive to the best use of their money in the interests of the purpose they support.

I wish to help. I do not know how much we can accomplish between now and 11 o'clock but the noble Earl is commendably bringing forward a great deal on behalf of the Government. I do not wish to prolong the debate on the amendment and shall not permit it. I shall withdraw the amendment for the time being since the problem has been ventilated. I have not wasted the time of your Lordships' House, if I may say so, in ventilating the problem because it is a grievous matter and gives rise to much trouble.

It is now left for conversations with the Charity Commissioners on what they believe to be within the range of the powers they already have under the 1960 Act. If they already have the powers then one might suggest that it is only gilding the lily to give them more, but I do not wish to raise such matters. I should like to see those powers used, if the commissioners have them. I know of no occasions when they have used them where matters were sufficiently serious to require their intervention.

There is now a new chairman and a new outlook in the Charity Commission, with a wider scope for its activities and judgment. I shall withdraw the amendment and ask Mr. Guthrie what he feels about the debate and what he has in mind to do about the issue. I could enlarge upon it ad lib and he will understand the difficulty. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Power of Commissioners to obtain information and documents]:

[Amendments Nos. 13 and 14 not moved.]

Clause 8 [Power to act for protection of charities]:

[Amendment No. 15 not moved.]

Clause 9 [Supplementary provisions relating to receiver and manager appointed for a charity]:

Lord Simon of Glaisdale moved Amendment No. 15A: Page 10, leave out lines 12 to 20.

The noble and learned Lord said: My Lords, I can be brief in moving this amendment. The whole of subsection (7) of the new Section 20A (in Clause 9 on page 10) is completely unnecessary. The background to the amendment concerns the state of our statute book. In 1975 the Renton Committee on the preparation of legislation remarked on the prolixity of statutes. The statute book then ran to three volumes. Ten years later, fewer statutes ran to five volumes and that was mainly due to the increasing prolixity in the preparation of legislation. The format was then enlarged, but even with the larger format, in two years the statute book returned to five large volumes, which are expensive for consumers. It is therefore incumbent on us to make sure that we do not inflate the statute book with completely unnecessary formulae.

Subsection (6) of the proposed new Section 20A states: Regulations may make provision with respect to", and so on. Subsection (7) states: Regulations under subsection (6) above may, in particular".

Neither of those provisions is mandatory; both are discretionary. Quite obviously a particularity is merely a particular of the generality that goes before. The Secretary of State simply does not need those words. That being so, it is our duty at any rate to shorten the statute book a little. Even the smallest relief by the tapping of merely a fluid ounce of the dropsical liquid that informs our legislation is not to be deprecated. I beg to move.

Lord Jenkin of Roding

My Lords, I concur. I need add no other words except to say that the provision in the Bill is totally otiose.

Viscount Astor

My Lords, under the new Section 20A to be inserted in the 1960 Act, the Commissioners can appoint a receiver and manager where the administration of a charity has completely broken down, or where its property is at risk. Regulations made under subsection (6) may make provision governing the appointment and removal of receivers and managers; their remuneration from the income of the charity concerned and their reports to the Commissioners.

The purpose of subsection (7) of the new Section 20A which this amendment would remove is to specify particular actions which regulations may authorise the Commissioners to take. There are three of them: to require security from a receiver and manager for the due discharge of his functions; to set the level of remuneration of a receiver and manager and to disallow any part of that remuneration in the circumstances specified in the regulations. I take account of what the noble and learned Lord has said. However, we feel it is important to put beyond doubt that the Commissioners may be authorised in this way to take steps which may be essential if the appointment of a receiver and manager is to achieve its purpose.

Lord Swinfen

My Lords, before my noble friend sits down, I hope I may point out that the regulations as proposed under subsection (7) (a) are covered under the regulations proposed under subsection (6) (a). Those under subsection (7) (b) and subsection (7) (c) are covered under those mentioned in subsection (6) (b). I entirely agree with the noble and learned Lord, Lord Simon of Glaisdale, that subsection (7) is totally unnecessary.

Lord Simon of Glaisdale

My Lords, I am grateful for the support of the noble Viscount and the noble Lord, Lord Jenkin. I am sorry I stigmatised the previous speech by the noble Viscount as that of a gauleiter. This time he did not reply like a gauleiter. However, he replied in the manner of a Minister, taking no account of the speech that had been advanced in favour of the amendment. It comes back to the point that has been made by the noble Viscount, Lord Brentford. If one gives a general power, that includes every particular power. Either subsection (7) goes beyond the general power—it does not—or it is unnecessary. I am afraid that point was not met. However, it would be absurd to divide the House on a point of statutory construction and I therefore shall reluctantly withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cavendish of Furness

My Lords, I beg to move that further consideration on Report on this Bill be now adjourned. In moving this Motion I suggest that the Report stage begins again at five minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.