Charities Bill [H.L.]

HL Deb 18 February 1992 vol 535 cc1179-254

7.3 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be now further considered on Report. —(Earl Ferrers.)

On Question, Motion agreed to.

Earl Ferrers moved Amendment No. 55: After Clause 51, insert the following new clause: Fees and other amounts payable to Commissioners (".—(1) The Secretary of State may by regulations require the payment to the Commissioners of such fees as may be prescribed in respect of—

1. (a) the discharge by the Commissioners of such functions under the enactments relating to charities as may be prescribed;
2. (b) the inspection of the register of charities or of other material kept by them under those enactments, or the furnishing of copies of or extracts from documents so kept.

(2) Regulations under this section may—

1. (a) confer, or provide for the conferring of, exemptions from liability to pay a prescribed fee;
2. (b) provide for the remission or refunding of a prescribed fee (in whole or in part) in prescribed circumstances.

(3) A statutory instrument containing any regulations under this section which require the payment of a fee in respect of any matter for which no fee was previously payable shall not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament. (4) The Commissioners may impose charges of such amounts as they consider reasonable in respect of the supply of any publications produced by them. (5) Any fees and other payments received by the Commissioners by virtue of this section shall be paid into the Consolidated Fund. (6) In this section "prescribed" means prescribed by regulations under this section.").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendment No. 154. These amendments seek to reintroduce the provision which was removed by your Lordships in Committee enabling the commissioners to charge fees for certain of the services which they provide to charities and others. The services for which the fees may be charged, and the level of them, will be prescribed by regulations made by the Secretary of State. The commissioners will also be empowered to charge for their publications. I am aware that that provision met some criticism in Committee. Before I deal with the main criticisms which were raised, I should like first to give the reasons why I think that the provision is desirable.

The Woodfield Report, and the White Paper which followed it, saw no reason in principle why the commissioners should not be empowered to levy modest charges for some of their services. Companies have to pay such charges for the services of the Registrar of Companies and, likewise, in the case of a charitable friendly society, the Registrar of Friendly Societies. Neither the Registrar of Companies nor the Registrar of Friendly Societies has experienced any difficulty in obtaining fees from such charitable bodies. There seems therefore to be no strong argument against the principle extending to other charities in relation to the Charity Commission.

The commissioners are already empowered under the 1960 Act to charge for photocopies of documents open to public inspection (the second part of subsection (1) (b) of the proposed new clause replaces that power, which is removed from the 1960 Act by Schedule 3, paragraph 3). However, the principle that the commission might charge fees was established as long ago as 1869. The Charitable Trusts Act of that year enabled the Treasury to prescribe a scale of fees for business which was done by the Charity Commissioners. The principle, therefore, that their services might not always be free has been long established.

From the responses which we received to the White Paper, it is clear that many charities would be quite willing to contribute in a tangible way to the cost of the commissioners' work, which they rightly acknowledge as very valuable. Trustees are accustomed to paying for the services of solicitors, accountants, surveyors, fund-raisers and other professionals. They realise that a charity cannot be properly run for nothing. I do not think that they will balk at paying a small contribution towards some of the professional services of the commissioners.

While I believe, in principle, that charges are appropriate in some areas, I believe equally that they should not prove to be either a burden or a deterrent for charities that wish to use the commissioners' services. Indeed, charges must not undermine the commissioners' regulatory functions or run counter to measures which are aimed at the greater accountability of trustees. To set any charge at a level which puts trustees off approaching the commission is obviously likely to be counter-productive. Advice will not be sought early enough; authority will not be sought when it ought to be and a simple problem may well be allowed to grow into a serious difficulty.

In my view, that is not an argument against the principle of charging for services, but rather a reminder that charges should be set at a reasonable level. That is why no regulations can be made under this clause before they have been approved by your Lordships' House and by another place.

I now turn to your Lordships' criticisms. There was great anxiety about what the total proceeds from the charges would be. We have carried out further investigation into the matter and we estimate that this will be at least £300,000 after the costs of administration. Concern was also expressed as to whether the costs of the administration which would be involved in collection and in accounting procedures would be disproportionate. Our aim is not to make the commission, or any of its functions, self-financing but to establish the principle that the commission provides services of value which are recognised by the charitable world and to which the charitable world should contribute in some small measure. We would not seek to pass regulations solely for the purpose of raising charges if the administrative costs outweighed the gains.

We have in mind initially to set charges in three areas: for registration, consent orders for the disposition of land and for access to the computerised register of charities. The commissioners will also have power to charge for publications. We are at present considering what should be the level of charges in each of those areas. Registration might attract a flat fee of about £50 which, if the fee has to be paid by one of the trustees out of his own pocket initially, could be reclaimed from the charity's funds later. Of course, the fee will only be paid by newly-registered charities; it will not be retrospective.

For consent orders—and charities will require few of these under the proposed new regime—we favour a sliding scale with fee levels related to the amount of sale proceeds which are received by the charity. The commissioners are also in the process of examining possibilities for exploitation of the charity database, which will be of much interest especially to researchers and commercial users.

We do not propose to require a fee for the annual filing of the report and the accounts, nor for the residual services of the official custodian. There will be no charge for the expert advice which is given every day by the commission to hundreds of trustees by telephone, by letter and in person —advice, I might add, for which the trustees would certainly have to pay if they were to secure it elsewhere. That is the reasoning behind the amendments tabled in my name. We believe that it is reasonable for the Charity Commissioners to be given the power to charge for certain items but that those charges should be subject to your Lordships' approval and the approval of another place. I beg to move.

Lord Allen of Abbeydale

My Lords, I am sorry to start the evening's proceedings on a slightly controversial note and I hope that they will not be too prolonged. I must confess that, whatever happened in 1869, I still remain uneasy about this proposal. When we discussed a similar clause in Committee and ended by deleting it, I said that I recognised that there was a case for making some charges, for example, for commercial use of the Charity Commission's database. I believe that that is what the Minister had in mind.

It is disappointing that the Government have simply reintroduced the old clause in precisely the same form, subject to one deletion of a particular absurdity, which they volunteered in Committee. It is still a clause that gives no clue about the amounts to be charged or the services for which charges are to be made. With all respect, the Minister has not cleared up that aspect this evening. He will recall that the White Paper stated that the initial fee for registration was to be £25 but estimated that the total intake would be £750,000. On Second Reading we were given figures that added up to £300,000, although the initial fee had doubled to £50. We are now told that in some mysterious way we shall end up with £300,000 net of all expenses.

I realise that there is the safeguard of an affirmative resolution, but I do not set too much store on that because it would be against the tradition of this House to turn down regulations on such topics. I notice that the Charity Commission is to decide what it is reasonable to charge for publications. The Marshalled List of amendments retails at £3.20, so one wonders what figures will be regarded as reasonable.

Not that the clause seems a terribly good bargain for the Charity Commission. If I were the Treasury's accounting officer, I should look carefully at subsection (5) and would expect to receive the total amount of fees and charges without any deduction for expenses. It looks as though the Charity Commission will have to bear the full cost of administration and will not be able to keep a penny for itself.

I am still puzzled by why the Government want these general powers. It could hardly be for the money. Indeed, I do not think that the Minister suggested that it was. Looking at this from the point of view of the Government as a whole, it seems that the cost of collection will mean that the profit that is left will be tiny. Those who contribute to charities may feel some unease if they realise that they are being called upon to pay £300,000—or whatever the figure may be—straight into the pockets of Her Majesty's Treasury. I cannot help thinking that the staff of the Charity Commission would be better employed in helping to look after the accounts and reports that will come pouring in in their thousands.

Perhaps the Minister can give me some reassurance on four points. First, can he tell the House that there is no question of charging trustees for the information pack that is sent out on first registration or for the information that it will be necessary to issue to trustees about their responsibilities under the terms of this new legislation? If there were charges, the trustees most in need of advice would be the ones most reluctant to pay. Secondly, will the Government honour the proposal at paragraph 16 of Chapter 9 of the White Paper not to charge small charities for orders and schemes made by the Charity Commission? Thirdly, referring to paragraph 17 of Chapter 9 of the White Paper, is it also the intention to modify the charges for small charities that have to go to the Charity Commission for its consent to a transaction in land? Fourthly, will the Government think carefully before charging the public for access to the files, given that part of the object of the legislation is to encourage greater concern among the public and to obtain more help from them in finding out about things that may have gone wrong?

As I said at the beginning, I am uneasy about the clause, but I shall listen to any assurances that the Minister can give on the points that I have raised before deciding what line to take when the question is put.

7.15 p.m.

Lord Simon of Glaisdale

My Lords, it is with considerable temerity that I differ from my noble friend Lord Allen of Abbeydale on anything to do with the Bill, especially as he has Treasury experience as well as distinguished service in the Home Office.

However, subject to a satisfactory answer to the specific questions that he asked, it seems to me that what the Government are proposing is reasonable.

I should, however, like to raise two matters, but before doing so perhaps I may be allowed to refer mildly to the fact that it was past seven o'clock before we embarked on the consideration of some 118 effective amendments, the bulk of which are government amendments. Having merely registered that sad fact, I should like to draw attention to one point and then to ask a question. My first point relates to subsection 2 which begins, Regulations under this section may". When your Lordships last considered the Bill on Report, I drew attention to a similar clause that contained the words "in particular". I argued that those words showed that that subsection was unnecessary. That view had general support. I have since received a letter, for which I am grateful, from the noble Viscount, Lord Astor, to which I have replied. I have also written to the Minister, but I do not suppose he has yet received that letter. I do not propose to go into that except to point out the absence from the new clause of the words "in particular" which, in my respectful submission, make all the difference to the interpretation.

My question relates to a matter to which my noble friend Lord Allen has already referred. I refer to subsection (3) and to the question of affirmative resolutions. My noble friend is almost certainly right that your Lordships should observe the convention of not challenging an affirmative resolution when it relates to finance, as in this case. In other cases, however, that seems a weak convention and there is no reason why your Lordships should be bound by convention not to question a regulation that is subject to an affirmative resolution. The analogy of the Parliament Act is that your Lordships would be entitled to hold up such provisions for a year.

The affirmative resolution procedure is required if the regulations require a fee where no fee was previously payable. Suppose a fee was previously payable but is now to be increased, should not that also be subject to the affirmative resolution procedure? That may be taken care of by previous legislation, but I should like to be reassured on that point. If the matter cannot be answered now, perhaps the Minister will write to me before Third Reading.

Lord Richard

My Lords, I join with the noble Lord, Lord Allen of Abbeydale, in saying that I am unhappy with the clause for a number of reasons. First, it introduces a system of payment in relation to charities which does not exist at the moment. That will act as a deterrent to some extent on the use charities make of the commission. Secondly, I read the clause, and I hear the Minister. If the Minister's words were the clause, I should be happier with the clause, because if one reads the clause one sees that it is drafted widely. It provides: The Secretary of State may by regulations require the payment to the Commissioners of such fees as may be prescribed in respect of—the inspection of the register of charities". Does that become, in the Minister's words, access to the commission's database? If it does, at least part of my disquiet will be stilled. But so long as the words remain as large as they do in the clause, it is understandable that those of us who are not enamoured of the idea of charging charities, or indeed charging anyone, for access to the commission should remain uneasy about it.

The Government seem to be in somewhat of a dilemma over the clause. With his natural humanity, the Minister will rightly say that he wishes to relieve smaller charities from any burden imposed by the clause. If he does, the scope of the clause will become increasingly narrow. If that happens, presumably the amount of money that will be raised will be correspondingly reduced. One almost reaches the stage of extinction and of wondering whether it is worth going to the trouble of putting this clause into the Bill in this way.

I shall listen with great interest to what the Minister says when he replies. Although he has gone some way towards reinterpreting the starkness of the original clause, he has not yet gone far enough.

Viscount Mountgarret

My Lords, perhaps I may ask my noble friend a question about small charities, to which the noble Lords, Lord Allen of Abbeydale and Lord Richard, referred. My noble friend was good enough to agree that a charity with an income of less than £25,000 a year—as opposed to £10,000— would be exempt from certain provisions of the Bill that we discussed earlier. With regard to this clause, consideration might be given to exempting charities with an income of less than £25,000 a year from complying with subsection (1) (a) and (b), although I see that in subsection (2) it is possible for regulations to be introduced allowing for exemptions from liability to pay a prescribed fee. That provision is vague. I wonder whether my noble friend will consider a more definitive amendment which would provide that charities with an income of less than £25,000 a year are exempted from the principal provisions of the clause.

Earl Ferrers

My Lords, I am deeply grateful to the noble and learned Lord, Lord Simon of Glaisdale, for saying that on the whole he agrees with the Government on this point. That is always cheerful news for the Government. I am always worried when the noble Lord, Lord Allen of Abbeydale, who knows so much about these matters, remains, as he puts it, uneasy. I should like to try to clear his unease, if that is possible.

Obviously, no one likes to pay for something when they have not had to pay for it in the past. It is understandable that the noble Lord should say that it would be much easier if no charges were made. Everyone likes to have something for nothing. There is a reason for the provision. The Charity Commission spends a great deal of time, effort and expense providing a number of services for the public and for charities. The majority of them will not be charged for. The noble Lord asked why there was a change from the £750,000 mentioned in the White Paper. That figure included charges for filing accounts and for the making of schemes by the commissioners. We no longer propose to make charges in those areas. That is one of the reasons why the figure is lower.

Lord Allen of Abbeydale

My Lords, I am sorry to interrupt the Minister, but am I not right in thinking that when we had the figure of £300,000 it at that stage included a provision covering the filing of accounts? That was the part that was struck out of the clause in Committee. We had the figure of £300,000 quoted when the provision was still in.

Earl Ferrers

My Lords, it is always difficult to try to predict what is likely to happen in the future when no one knows. We have tried to give a reasonable estimate. The noble Lord said that I had given no clues as to what is to be charged for or how much. I thought that I had tried to tell your Lordships what we intended to charge for. That was in the three areas of registration, for consent orders and for access to the computerised register of charities. The commissioners will also have power to charge for publications.

It is not the commissioners' intention to charge for information as to what charity trustees should do—one of the points the noble Lord, Lord Allen of Abbeydale, mentioned. He asked for answers to four questions. The first was whether the Charity Commissioners would charge for the information pack or information as to the responsibility of trustees. The answer to that is no, they will not be charged for. He then asked whether there would be a charge to small charities for orders and schemes made by the Charity Commissioners. The White Paper proposed that power should be given to the commission to waive charges for small charities. If the noble Lord were to read subsection (2) (a) of the new clause he would see that it gives power for regulations to allow a waiver to small charities. That is also the answer to his third question about small charities in relation to land transactions. In that case it is slightly different because there will be a sliding scale for land transactions. Small charities would, therefore, by their nature not be charged. Again, that would come under the power of the waiver.

The noble Lord's fourth question related to whether there would be a charge to the public for access to the database. It is not intended that there should be a charge for access to the database unless it is by commercial bodies or large numbers of researchers who go into a great deal of detail. There will be no charge to the casual person who seeks information.

Lord Swinfen

My Lords, I am sorry to interrupt my noble friend, but if research is undertaken by a charity which may well wish to seek information from the database, will the charity be charged? As part of their fund-raising, charities frequently research grant-making trusts which are registered with the Charity Commission.

Earl Ferrers

My Lords, I believe I am correct in telling my noble friend that individual applications for access to the database will not be charged for, but mass applications will be. In other words, if, on the one hand, a charity says to the Charity Commissioners that it wants information about such-and-such a charity, there will be no charge. If, on the other hand, it is carrying out research and requires information from several hundred charities, there will be a charge.

The noble and learned Lord, Lord Simon of Glaisdale, referred to the affirmative resolution. I know that the noble Lord, Lord Allen of Abbeydale, also said that one cannot refuse a resolution. That is a fairly bland statement. As the noble Lord knows only too well, a great deal of legislation goes through as a result of resolutions which are passed by both Houses of Parliament. There is nothing novel about it. From my own experience I remember statutory instruments being withdrawn because there was likely to be a vote against them in your Lordships' House. I am thinking particularly of the Stansted Airport Bill some years ago. Rather than suffer a vote against it, the Government of the day removed the statutory instrument and did not put it to the vote. Thus there is a distinct incentive for the Government to get it right.

The noble and learned Lord, Lord Simon of Glaisdale, was concerned that if a fee was chargeable, that fact should form part of the resolution which would come to your Lordships' House. Of course it would do so, and if the regulations were to permit the fee to be increased, that would form part of the statutory instrument.

My noble friend Lord Mountgarret asked about an amendment to the effect that all charities with under £25,000 should be exempted. Frankly, I do not favour that. I believe that it is much better to leave it to the regulations. After the concern which has been expressed by your Lordships, great care would be taken to ensure that when the regulations are made they are reasonable. I would not like to suggest whether or not a figure of £25,000 would be right, but it would be wrong to put it in the Bill.

I had forgotten that it was my amendment, but if your Lordships are content with the explanation that I have given, I commend the amendment to the House.

On Question, amendment agreed to.

7.30 p.m.

Clause 55 [Restriction on institution of proceedings for certain offences]:

Lord Simon of Glaisdale moved Amendment No. 55A: Leave out Clause 55.

The noble and learned Lord said: My Lords, the amendment proposes to leave out Clause 55 on page 46. The clause requires the consent of the Director of Public Prosecutions in respect of certain offences under the Bill.

The proposal was moved in Committee by the noble Lord, Lord Renton, to whom I am grateful. However, it did not receive the approbation of the noble Lord, Lord Harris of Greenwich, and that naturally gave me pause for thought. It seems to me important that we should vindicate the right of private prosecution, even when the director is available, because it is an ancient right and a personal liberty that the private citizen can set the law in motion without seeking the favour of any official.

We must face the fact that, useful though the Office of the Director of Public Prosecutions has been, it is a bureaucratic invasion of the ancient right of private prosecution. Perhaps that is still more so since the establishment of the Crown Prosecution Service, although I believe that all or most of us approved of that extension on the ground that it was undesirable for the police to be concerned with the prosecution process.

As your Lordships know, the ancient method of prosecuting offences in this country was to bind over the individual complainant to prosecute. That worked well under a localised agricultural society. It broke down once one had an urban industrial society. The private prosecutor was then inefficient, he did not know how to prosecute and the burden on him was frequently irksome and financially onerous. However, what was much more serious was that it was open to corruption and blackmail, particularly with the offences of perjury and conspiracy.

Thus in the middle of the last century there was a strong movement to establish what became the public prosecutor's office. However, all the principal proponents were adamant that although we needed a Director of Public Prosecutions, nevertheless the ancient liberty of private prosecution should still be maintained. That was the view of Lord Brougham, Lord Campbell, who was the Chief Justice and Sir Arthur Cockburn, the Attorney-General. They were all in favour but all wished to see the retention of the right of private prosecutions, as was the view of Bentham earlier.

There is no real hardship in allowing the private prosecution to subsist alongside the activities of the director, because if the private prosecution is in any way onerous to the accused, it is always open to the Attorney-General, through the director, to take over the prosecution and to abandon it; in the technical term, to enter a nolle prosequi.

Moreover, there is an important lesson here from Scotland. For one-and-a-half centuries private prosecutions were unknown in Scotland. I remember when your Lordships' Appellate Committee was considering an attempt to revive the ancient Scottish remedy of assythment. Both sides assured us that private prosecutions were no longer available in Scotland. However what then occurred and supervened was the terrible Glasgow rape case. The Lord Advocate, for good reason, decided not to prosecute, but in the end the complainant went to the High Court of Justiciary and established the right of private prosecution, even after a lapse of 150 years.

No one reading that terrible story could doubt for a moment that justice was thereby done and would not have been done unless there had been a private prosecution. That is the general background: the need to preserve an individual and ancient liberty which cannot do harm as a result of the right of the Attorney-General to intervene, and which may be valuable. It is only to be abandoned when the type of offence is such that there is likely to be abuse if it is prosecuted. I mentioned perjury as a particular example, but if one looks at the four cases enumerated in this clause, one sees that none falls into that class.

On the contrary, what we are doing in most cases is to provide a bureaucratic method of prosecution over and above the bureaucracy of the Charity Commissioners, who can in most cases perfectly well be trusted with the prosecution. Paragraph (a) concerns a provision that your Lordships examined closely on the previous occasion we discussed this matter. It is the provision that concerns certain administrative bureaucratic requirements which on the whole commended themselves to your Lordships. The measure concerns the provision of various documents such as cheques, invoices, receipts and so on to signify that a charity is a registered charity. The universal view was that the failure to observe that provision ought not to be a criminal offence and, if it were, it should certainly not be an offence of strict liability whereby a trustee who had nothing to do with the failure to fill in a form properly was to be criminalised.

A further provision to which your Lordships objected was the reversal of the onus of proof. It must evidently be felt that that provision is liable to cause hardship and injustice to trustees. Therefore it is proposed that prosecutions should be undertaken only with the leave of the Director of Public Prosecutions. But surely the answer is to modify the clause to which your Lordships took exception on a previous occasion. I shall not go into that matter further because I received a letter only today from the office of the noble Earl saying that it was under consideration. But whatever is done about this matter, surely there can be no argument that, if there is a failure to comply with such an administrative requirement, it is not a subject for the Director of Public Prosecutions. If the disciplinary supervision of the Charity Commissioners is not sufficient, they are the persons to decide whether it is a case for prosecution.

Paragraph (b) refers to Section 20 of the 1960 Act as amended by Clause 8 of this Bill. Clause 8 concerns the Charity Commissioners' power to act for the protection of trustees. Again, if some offence is committed in this area, it is surely for the commissioners to decide whether to prosecute. There is absolutely no reason to involve another official body. That merely duplicates the work and increases the expense. Paragraph (c) concerns Clause 27 on page 24 of the Bill which refers to annual reports transmitted to the commissioners and the provision of the most recent accounts to any member of the public on request. Again, that is surely a matter for the disciplinary supervision of the Charity Commissioners. If they need to prosecute, they are the people to decide that.

Paragraph (d) concerns the offence of acting as a charity trustee while disqualified. That case is more arguable as the offence is triable both ways, in other words on indictment as well as summarily. Even then, surely it is the commissioners who are the right people to determine on a prosecution. Paragraph (e) concerns the supply of false or misleading information to the commissioners. This offence is again triable both ways, but as it is the commissioners who are the subject of the offence they are the people to prosecute. In trying to vindicate the preservation of an ancient individual right, I beg to move.

7.45 p.m.

Lord Renton

My Lords, I wish to support the noble and learned Lord, Lord Simon of Glaisdale, on his proposal that Clause 55 should be left out of the Bill. I must confess that in Committee I attempted to get the clause left out but I received no support whatever. However, I hope that on mature reflection your Lordships will consider that the noble and learned Lord has made out a very powerful case for not requiring the Director of Public Prosecutions to give his consent for the prosecutions listed which the noble and learned Lord has enumerated. They mostly concern not very great offences. Where the maximum sentence has been specified for these offences, it generally amounts to a fine of a moderate amount and no more than six months' imprisonment.

However, my principle objection to the clause is this. It would mean that one branch of the Civil Service which is concerned with the administration of this branch of the law —namely, the Charity Commissioners who are a branch of the Civil Service—should require the consent of another department involved in the law.

One has only to look at the third subparagraph of the first schedule to the 1960 Act which states that the chief commissioner and the other commissioners, shall be deemed for all purposes to be employed in the civil service of the Crown". The Director of Public Prosecutions is also a civil servant. The idea that one body of civil servants concerned with the administration of a branch of the law in which they are supposed to be experts, and generally are, should require the consent of another department involved in the law—in that case the criminal law—seems to be unnecessary and quite absurd. Without elaborating further the powerful case the noble and learned Lord has made, I hope his proposal will receive very sympathetic consideration.

Lord Harris of Greenwich

My Lords, I am sorry to have to say that I do not agree with the noble and learned Lord, Lord Simon of Glaisdale. I am sorry to say that as I normally find him a redoubtable ally. But on this occasion I am afraid I cannot agree with him. I fear I cannot agree either with the speech of the noble Lord, Lord Renton. He and I debated this matter in the Public Bill Committee.

There is a series of reasons why the Government are right in their drafting of the Bill on this issue. As the noble Lord, Lord Renton, will be aware, many of us have expressed serious disquiet at the new criminal penalties which trustees risk incurring in carrying out their duties as trustees. This matter was discussed extensively in the Public Bill Committee and I do not wish to go over all that ground again. However, given the fact that many trustees will for the first time face the risk of quite explicit criminal penalties, it seems to me right that the consent of the Director of Public Prosecutions should be required before a prosecution is launched.

As the noble and learned Lord, Lord Simon of Glaisdale, will be aware, the Charity Commission will not carry out the prosecutions itself. As I understand what the noble Earl, Lord Ferrers, said during the proceedings of the Public Bill Committee, if there is an alleged offence, the Charity Commission will refer the matter to the Crown Prosecution Service which will normally determine what action will be taken.

I recognise the concerns of the noble and learned Lord, Lord Simon of Glaisdale, on the issues of principle. However, for the reasons I have indicated it seems to me that, in view of the formidable threat which now exists against the trustees of many thousands of charities in this country, those trustees should be protected from the risk of a frivolous prosecution by a private citizen. Therefore, I very much agree with what the noble Earl said on the previous occasion. The Bill should be left as it is.

Lord Richard

My Lords, I find myself in the strange position of disagreeing with the noble Lord, Lord Harris of Greenwich, and in agreement with the noble and learned Lord, Lord Simon of Glaisdale. It is always a pleasure to listen to the noble and learned Lord, Lord Simon, because he always tells me something that I do not know. We heard not only the history of prosecutions in English law but also of the innovation of private prosecution in 19th century Scottish law. I found myself better informed at the end of his speech than I was before the noble and learned Lord stood up. I am grateful to him for that.

It is not a question of whether or not a frivolous private prosecution can be brought by an individual. It is a question of whether or not the Charity Commissioners should do their own prosecuting. It seems to me that many of the offences which are set out in the Bill are minor. For example, subsection (2) (a) reads: section 4A(3) of the 1960 Act, as amended by section 3 above". That refers to a minor offence and a minor infringement. If it comes to the notice of the Charity Commissioners for the life of me I do not see why they should not be the people to bring the prosecution in the magistrates' court.

In addition, to clutter up the Crown Prosecution Service with such minor offences will not make that organisation any more efficient than it is at present. Your Lordships will know that there are views as to the efficiency of the Crown Prosecution Service at present.

On balance, I can see no reason why the Charity Commissioners should not do their own prosecuting in respect of at least some of the offences which are referred to in the subsection. The blunt instrument of the Director of Public Prosecutions is not required for some of those minor offences. I hope that the noble Earl can say that he will have another look at the matter at least in respect of subsection (2) (a), (b) and possibly (d).

Viscount Astor

My Lords, as noble Lords have pointed out, Clause 55 of the Bill provides that no proceedings for any criminal offence in Part I of the Bill shall be instituted except by or with the consent of the Director of Public Prosecutions. The noble and learned Lord, Lord Simon of Glaisdale, does not like that restriction but I hope to explain to him why we consider it important to have that restriction.

The Bill creates a number of new and important duties and responsibilities for charity trustees, which are fundamental to the regulatory framework created by the Bill. For example, it is a central element of the accountability of trustees that they submit annual accounts to the commissioners. As your Lordships have been quick to point out, not many charities do that at the moment.

It is clearly necessary that those new responsibilities and duties are enforceable, that abuse is deterred and that the nature of trustees' responsibilities is highlighted. It was with some reluctance that we concluded that criminal offences were, in some areas, the most effective way of enforcing those new duties. As the White Paper suggested, we have examined carefully the alternatives to criminal sanctions, but concluded that the White Paper's proposal for default markings on the register of charities did not offer an effective means of ensuring compliance with the duties imposed by the Bill. It is difficult to see how such default would deter less than scrupulous trustees from breaching their statutory duties. They would also be likely to have undesirable effects on the funds of the charity by discouraging donors, rather than penalising dishonest trustees.

Those who administer charities are usually unpaid volunteers. Although charities range from national bodies with a large turnover to small parochial charities, their trustees have in common their willingness to give up their own time in the interests of serving the particular beneficiaries of their charity. Prosecution of offences under Part I of the Bill should not, therefore, be undertaken lightly.

Although those criminal offences are necessary, it is equally important that we put in place machinery to ensure that offences are prosecuted only where the transgression is serious and prosecution is warranted in the circumstances. It is for that reason that the Bill prevents a criminal prosecution under Part I except by or with the consent of the Director of Public Prosecutions.

Cases will be identified by the Charity Commissioners in the course of their work. Where they consider a prosecution both necessary and desirable they will refer the case to the Crown Prosecution Service, either directly or through the police if that is appropriate in the circumstances of the case.

The Crown Prosecution Service is trained and staffed to prosecute offences. That is its function. The Charity Commission is not trained or staffed to prosecute. Its expertise is in investigation. We believe that it is better to leave prosecution to the experts and let the Charity Commission staff investigate and monitor charity affairs. That is important. The noble Lord, Lord Harris of Greenwich, supported that view and I am grateful for his support. I am sorry that the noble Lord, Lord Richard, did not support that view. It is important that we do not burden the Charity Commissioners in this way.

Of course, the Director of Public Prosecutions could consent to the bringing of a private prosecution. That is not precluded by the clause. The Charity Commissioners could also bring a prosecution, with the consent of the Director of Public Prosecutions. That is not precluded. However, it is current government practice to centralise prosecutions.

It is important that we ensure that the severity of criminal sanction is brought to bear only in those circumstances in which it is in the public interest that a prosecution be brought. The Charity Commissioners will identify lapses and failures and deal with them. It will be only the important cases which will be passed on to the Crown Prosecution Service.

I hope that that explanation satisfies the noble and learned Lord, Lord Simon. I recognise that the ancient individual right is somewhat eroded by the clause, but we believe that it is important that frivolous prosecutions should not take place.

Lord Simon of Glaisdale

My Lords, I am most grateful to those of your Lordships who took part in the debate. Perhaps I shall be understood with sympathy when I say that I found the speeches of the noble Lords, Lord Renton and Lord Richard, particularly convincing. I am always sorry when I find myself differing from the noble Lord, Lord Harris, but what he said and what the noble Viscount said has done nothing to shake my conviction that the interposition of the Director of Public Prosecutions is not only unnecessary but positively injurious. As the noble Lord, Lord Richard, asked, why could the Charity Commissioners not be allowed to do their own job? The nearest the noble Viscount came to answering that question was to say that the Crown Prosecution Service is expert at prosecution and the Charity Commissioners are not. That is true. But this clause does not say that all prosecutions must be brought by the Crown Prosecution Service. It says that no prosecutions shall be brought without the consent of the Director of Public Prosecutions. That is very different.

Even in defence of an ancient and valuable personal right it would be absurd to try to divide noble Lords at this hour of the night and in a sparse House. I only hope that what has been said may have some effect on this Bill when it goes further. Perhaps I may add that I personally do not agree that any of the offences enumerated in this clause—except acting as a trustee when disqualified—are worthy of being criminalised. If they are, the people to deal with it, failing administrative discipline, are the Charity Commissioners. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8 p.m.

Lord Simon of Glaisdale moved Amendment No. 55B: After Clause 57, insert the following new clause: ("Exemption from provisions of the 1960 Act The Commissioners may direct that any provision of the 1960 Act or of this Part of this Act shall not apply to any charity if they consider that its application would impose a disproportionate burden on the charity.").

The noble and learned Lord said: My Lords, it was with some hesitation that I tabled this amendment in Committee. In general I do not like a dispensing power in the law, and I can hardly conceive of any circumstances in which I would gladly give it to a Minister. That would be a Henry VIII provision. But here that power is given to the Charity Commissioners, who are in closest touch with working out the provisions of the Bill on the 1960 Act so as to ensure the proper regulation of charities.

On Second Reading there was wide expression of apprehension that, although valuable work was being done, we were imposing too heavy an administrative burden on small charities in particular. This new clause seeks to give the Charity Commissioners power in appropriate cases to relieve the burden on the charity. It was moved in Committee by the noble Lord, Lord Richard. I am grateful for that. It also commended itself to the noble Lord, Lord Harris. Therefore, I had no hesitation in tabling it again for your Lordships' wider consideration.

Much depends on whether the measures in the Bill are sufficient to relieve the small charities of their administrative burden. When I wrote to explain the amendment, the noble Earl set out the reliefs that were being extended to small charities. They have gone further since then. I shall not trouble your Lordships with his letter. No doubt he himself will wish to mention the point. The question is: have they gone far enough? Even if they have gone a long way, there will remain charities where the administrative burden is disproportionate.

In Committee the noble Earl was inclined to quarrel with the word "disproportionate". He asked how one could show a disproportionate burden. That is not an entirely unknown phrase in the law. The word "disproportionate" may be new, but "proportionate" is not. If the law can make do with proportionate—as it can—it can well do with disproportionate.

It is the Charity Commissioners as laymen who have to use their commonsense in this matter. If I were asked what that phrase meant, I would say that it raises the question: does compliance with the provision in question, which will generally be administrative, do more harm than good, considering the nature of the charity in point? I fail to see why that is not a proper gloss and why it is not a test that the Charity Commissioners are well qualified to apply. I beg to move.

Lord Morris of Castle Morris

My Lords, I support the noble and learned Lord, Lord Simon, in what seems to be a signal act of corporal mercy, especially in the direction of small charities, which will have a great burden to bear when this Bill becomes an Act.

They will be concerned with accounts, reports, audits and so on. A great deal of that will be new work for many of them. The very necessary checks and regulations of the Bill, which is both extensive and intensive in what it requires of the charities, will be particularly onerous to the small charities, especially where those charities have very few staff or untrained staff and perhaps, as is quite often the case, a relatively high staff turnover.

I realise that the amendment appears to give swingeing powers to the Charity Commissioners. It says that they: may direct that any provision of the 1960 Act or of this Part of this Act shall not apply to any charity". I can see no other way of tempering the wind to the shorn lambs. It is supremely in the interests of the Charity Commissioners themselves to preserve the small charities and to ensure that they operate as efficiently as possible. Noble Lords may remember that when we considered the Criminal Justice Bill last year, one noble and learned Lord said that one has to trust someone—trust the judges. One might equally say about this amendment: one has to trust someone —trust the commissioners.

Any small charity which found itself the beneficiary of this amendment might very well say, "For this relief much thanks". I cannot believe that the commissioners would find it very difficult to draw the line between who should and who should not be relieved. If they cannot do so, no one can in this or any other matter.

Lord Monson

My Lords, I strongly support this amendment. In our earlier debates on the Bill, there was much discussion about the burdens that its provisions may impose upon charities which had incomes of just under £25,000 a year or just under £10,000 a year. I am not so concerned with the problems of charities with incomes of, say, £24,750 a year or £9,975 a year; I am much more concerned with charities which have incomes in the region of £250 a year or £175 a year. Unless the amendment of my noble and learned friend is accepted, the burdens that are imposed by this Bill will virtually absorb 20 per cent. or more of the income of such charities at the expense of the poor beneficiaries. I use the word "poor" in both senses of the term.

Viscount Astor

My Lords, when the noble Lord, Lord Morris of Castle Morris, said that the amendment would have swingeing effect, I thought that he intended to agree with me and speak against the amendment. He is right; the amendment does have sweeping effect. It would enable the commissioners to: direct that any provision of the 1960 Act or of [Part I] of this Act shall not apply to any charity", if that charity, in the commissioners' opinion, suffered a "disproportionate burden" in complying with the provisions in question.

As my noble friend said in Committee, we do not know what a disproportionate burden would be in the circumstances. I am sure that there are provisions of the Bill and of the 1960 Act which cannot be said to cause a burden to a charity. There are other provisions which may cause a burden to charities that are mismanaged or maladministered. Indeed, these provisions exist to do just that and it is right that they should do so.

Trustees of some charities might find it a burden to keep proper accounts, even though the regime that we have created is not unduly onerous. But keeping accounts is a proper and necessary duty. I do not wish to see charities relieved of it. Indeed, in my view the Bill does not place on trustees any duties or responsibilities which it is not right that they should shoulder.

The noble Lord, Lord Monson, referred to small charities. Where the provisions of the Bill might place an administrative burden on small charities we have provided for that burden to be mitigated. For example, charities with an income which does not exceed £1,000 a year do not have to register or submit an annual report. Charities with an income not exceeding £25,000 a year may prepare a simplified set of accounts. Charities with an income not exceeding £100,000 a year may have their accounts examined by an independent person. The Commissioners have power to dispense with the need to make an annual return in the case of any particular charity or class of charities.

We have gone a long way to accommodate the small charities, as I hope I have explained. I believe that we have gone far enough. I do not believe that the Bill would gain by accepting the noble and learned Lord's amendment.

Lord Simon of Glaisdale

My Lords, again I am grateful for the contributions. I ought to have said one thing. The noble Viscount again repeated that he did not think that the word "disproportionate" was one which the Charity Commissioners could manage. However, he did not deal with my gloss upon it in which I posed the kind of question that they would ask themselves. In the hope that minds might still be open on the Bill, perhaps I may draw attention to a statutory provision in the Workmen's Compensation Act 1897 which stated that dependants "in part" had to have a "reasonable and proportionate" compensation for damages. The courts have had no difficulty in dealing with that. I ask that the matter may be the subject of open-minded consideration before Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [Interpretation of Part II]:

Earl Ferrers moved Amendments Nos. 56 and 57: Page 48, line 8, after ("charitable") insert (", benevolent or philanthropic"). Page 48, leave out lines 9 to 11.

The noble Earl said: My Lords, in moving the amendment I speak also to Amendments Nos. 61, 65, 82, 118 to 120, 124, 125 and 130.

The noble Lord, Lord Allen of Abbeydale, and the noble and learned Lord, Lord Brightman, suggested during Committee that it was confusing and therefore unsatisfactory for the expression "charitable purposes" to have one meaning when used in Part I of the Bill and quite another when used in Parts II and III.

I am bound to say that I quite agree. I stated that we would consider the issue again to see whether we could make matters clearer. The amendments are the result.

In abandoning the use of "charitable purposes" as a shorthand, we have made the Bill a little longer. I hope that noble Lords will agree that the end result is clearer. I beg to move.

Lord Allen of Abbeydale

My Lords, I promise that I shall not rise each time to say thank you. However, the amendments seem quite satisfactory and I am grateful.

Earl Ferrers

My Lords, I am most grateful. I would not seek to inhibit the noble Lord in his expression of thanks. He may feel at liberty to do so whenever he wishes.

Baroness Mallalieu

My Lords, perhaps I may thank the noble Earl for the amendments which we support. They extend the definitions of charitable institution and charitable purposes to cover benevolent and philanthropic institutions and purposes which might otherwise be thought by some to fall outside the scope of the 1960 Act. They close not only a possible loophole in the application of this legislation but also correct the confusion. We support the amendments.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 58: Page 48, line 21, at end insert: (""company" has the same meaning as in the Charities Act 1960;").

The noble Earl said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 59, 62 to 64 and 66 to 68.

A number of your Lordships and others have suggested that the definition of professional fundraiser in Clause 58 goes too wide. I saw the force of the arguments and I said during Committee that I would bring forward amendments to narrow its scope.

We have sought in Amendment No. 64 to deal with the problem of the paid volunteer working on behalf of charitable institutions in two ways. First, the new subsection (1A) (c) excludes anyone, other than a promoter, who acts as a collector in respect of a public charitable collection whether he is paid by a charitable institution or by a professional fund-raiser. The person paid £5 a day for rattling his tin in the street is not therefore a professional fund-raiser for the purposes of Part II. Secondly, the new subsection (1B) will exclude anyone paid a small honorarium for organising or undertaking other kinds of fund-raising events or activities for a charitable institution. The new subsection (1A) (a) excludes wholly-controlled subsidiaries of charitable institutions from the definition of professional fund-raiser.

In looking at the question of paid volunteers of charitable institutions, I have looked again at the position of paid collectors or other agents of professional fund-raisers. It seems to me that these people, too, should be excluded from the definition of professional fund-raiser and Amendment No. 63 achieves this by excluding any person soliciting money or property in the course of a venture undertaken by a person carrying on a fund-raising business.

The provisions of Part II are intended to regulate the affairs of professional fund-raisers—the men who run fund-raising businesses—in relation to the appeals and campaigns they organise for charitable institutions. Amendments No. 63 and 64 together ensure that the provisions of Part II are more sharply focused on such people. I hope your Lordships will agree that this is the right way forward.

Some of your Lordships expressed concern about the effect of the Part II provisions as regards celebrities employed by professional fund-raisers or charitable institutions to make appeals on radio and television. It was felt that their position was uncertain and that the requirements on them were too onerous in comparison with the often modest sums they received in reward. I found those points persuasive too. The new subsection (1A) (d) together with the new subsection to be inserted by Amendment No. 67 will in effect exclude such persons from the definition of professional fund-raiser whether they are paid by the charitable institution or by a professional fund-raiser.

Amendment No. 58 attracts to Part II of the Bill the definition of "company" as it appears in the Charities Act 1960. By virtue of Section 20(2) of the Interpretation Act 1978, this means the definition which is inserted by Section 111(2) of the Companies Act 1989. In my view this covers the point which the noble and learned Lord, Lord Brightman, seeks to make in his Amendment No. 59. I beg to move.

Lord Judd

My Lords, I hesitate to rise because noble Lords present today have made a tremendous contribution to the Bill. However, as will be realised, during my life I have been involved in the work of charities. It would be wrong to allow this moment to pass without referring to the tremendous relief that is felt among many charities throughout the country that the Government have seen fit to bring forward this amendment. I have been almost inundated by messages from friends and former colleagues who have stated that this is one of the most encouraging developments to have occurred. On their behalf and mine I thank the Government for their response. I also thank most sincerely those noble Lords who in the earlier stages of the Bill put the case so well.

Perhaps I may make one other observation. It could be made at other points in consideration of the Bill but it is pertinent now. There is a strong feeling in the charity world that it is important to have proper regulation of charities. Therefore, the Bill is welcomed in that sense and because public confidence is essential. However, people also believe that as the Bill is considered it is extremely important not to lose sight of the fact that so much of the life of charities, and the work that goes into their support, comes from the best people in British society. They wish to take responsibility and to do creative things on behalf of society. There was a danger that in some respects the Bill was too onerous, intimidating and frightening for people who were full of good will. The move that has now been made by the Government will be most encouraging in that context.

Lord Brightman

My Lords, I wish to speak only to Amendments Nos. 58 and 59 dealing with the definition of "company". "Company" needs to be defined for the purpose of Part II of the Bill. Amendment No. 58 gives the noble Earl's definition of "company". It states: 'company' has the same meaning as in the Charities Act 1960". The reader will search in vain, as I did, for a definition of "company" in the Charities Act 1960. If he is fortunate, and after a prolonged search, the reader will find the definition in an Act of Parliament passed three years ago. It does not mention the Charities Act 1960 in its short title or in its long title. It is the Companies Act 1989 which amends Section 46 of the Charities Act 1960.

Amendment No. 59 gives my definition of "company". It advises the reader exactly where to look in order to find out what "company" means in the Charities Act 1960. It reads: 'company' has the same meaning as in section 46 of the Charities Act 1960 as amended by section 111(2) of the Companies Act 1989". I ask the noble Earl only one question. Whose definition is more helpful to the reader; his definition or mine?

I fully appreciate what the Interpretation Act allows the draftsman to do. My amendment adds only one line to the Bill and will save many charities a great deal of time. I oppose Amendment No. 58 in order to let in Amendment No. 59 in due course.

Lord Allen of Abbeydale

My Lords, I appreciate the general changes which the Government have proposed and which seem to be most satisfactory. At the same time I support the point made by my noble and learned friend Lord Brightman. I too turned to the Charities Act to see how "company" was defined and I could not find that. After some research, not conducted by me personally, I discovered the answer. That I was able to explain to a Law Lord where to find the answer to the great puzzle which was presented was a moment of glory for me.

Lord Swinfen

My Lords, I too support in general the amendment moved by my noble friend Lord Ferrers. I also support what was said by the noble and learned Lord, Lord Brightman. As the House knows, I work for a charity. Few charities employ lawyers. The laymen who work in charities cannot be expected to know the law as well as the noble and learned Lord. He had some difficulty in finding the proper definition of "company". I strongly recommend my noble friend Lord Ferrers not to move Amendment No. 58 but instead to accept Amendment No. 59. I can assure him that that will make life a great deal easier for those people who work in the charity field and who must make the Bill work when it becomes an Act.

Lord Mottistone

My Lords, I wish to support the points made by my noble friend Lord Swinfen. I wish to support too the points made by the noble Lord, Lord Judd. I shall say only once that the Government's amendments to the Bill have on the whole been excellent. They have clarified all the points that were made in Committee. However, surely it must be obvious that the amendment tabled by the noble and learned Lord, Lord Brightman, is required and not Amendment No. 58. I implore my noble friend to accept Amendment No. 59 and not to move his own amendment.

Lord Richard

My Lords, I rise to join the general chorus of congratulations and thanks to the Government for what they have done to the clause. I urge the noble Earl to support Amendment No. 59 and not to move Amendment No. 58. Finally, I wish to raise a difficulty that I have as regards the wording of some of the amendments.

Amendment No. 64 states: 'professional fund-raiser' does not apply to … (c) any person acting as a collector in respect of a public charitable collection". I understand that provision. Presumably that person will not be a fund-raiser if he or she is paid as a collector in respect of a public charitable collection. So far so good. Subsection (1B) of the amendment states: In addition, paragraph (b) of the definition of `professional fund-raiser' does not apply to a person if he does not receive—

1. (a) more than —
1. (i) £5 per day, or
2. (ii) £500 per year,

by way of remuneration in connection with soliciting money or other property for the benefit of the charitable institution". I am sure that I am fault but at first sight there appears to be a conflict between subsection (1A) (c) and subsection (1B) (a). I am sure that there is a perfectly simple explanation. The noble Earl's knowledge of the Bill is far greater than mine and no doubt he will be able to explain the matter as soon as the noble Viscount has finished his walk up and down the Chamber.

As I am on my feet, however, perhaps I may ask the noble Earl another question and give the noble Viscount a little more time. The provision "more than £5 per day, or £500 per year" puzzles me. Do I understand that a person who is paid £10 for one day will be covered by the provision but a person who is paid £5 per day for 99 days will not be covered? If that is correct the provision is a little strange.

I understand and appreciate everything that the noble Earl is trying to do in relation to this clause. Indeed, I join my noble friend Lord Judd in paying tribute to him and to the people who have made the collections and done all the soliciting. However, I am not sure whether that provision is too crude to avoid raising anomalies. I see that the noble Viscount returned to us but has gone again, so I shall sit down.

Lord Simon of Glaisdale

My Lords, I presume to join in the thanks and congratulations offered to the noble Earl. I also join with noble Lords who have endorsed the amendment tabled by my noble and learned friend. There is no question but that from a legal point of view his amendment is preferable. I cannot conceive that it is not also preferable, as the noble Viscount pointed out, from the point of view of the users of the statute book—the persons who are concerned with charity law. I hope that on this occasion the noble Earl will show some flexibility and accept the amendment.

8.30 p.m.

Earl Ferrers

My Lords, I was looking forward to moving these amendments which I thought would meet with your Lordships' approval. I did not realise that they had an Exocet attached to their tail.

First, I thank the noble Lord, Lord Judd, for his remarks. He said that these amendments have caused a sense of relief. If that is so, I am glad. If that has been the case, it is because, as he quite rightly said, the case was made so clearly and eloquently in Committee. Indeed, I am grateful to all noble Lords who took part in our discussions in Committee. One advantage of the passage of the Bill is that the arguments for the amendments which have been tabled have been put extremely clearly. We have tried to meet the points made wherever possible.

As usual, the noble and learned Lord, Lord Brightman, makes an eloquent case. As I listened to him, I became more and more persuaded by his argument. However, that is not surprising because I am always persuaded by the last person from whom I have heard.

In the time available I have looked at this matter and I have been given some fairly clear advice; that is, that to mention the amendment to the 1989 Act prejudices the operation of the Interpretation Act 1978 which provides that any reference to an enactment is that as amended by any other Act. We are in the realms of legal niceties and I am advised that that is the case. If your Lordships will accept my amendment, I shall consider the points made by the noble and learned Lord and, indeed, by other noble Lords. However, I am advised that it would be incorrect to accept the amendments, hut I am prepared to look at this matter.

The noble Lord, Lord Richard, was worried about subsections (1A) (c) and (1B) (a). Subsection (1A) (c) in Amendment No. 64 applies whether or not one is paid. Subsection (1B) (a) is additional. If one can come within the first, one is excepted whether or not one is paid. Subsection (1B) is not aimed at collectors.

The noble Lord was also anxious as regards £5 per day or £500 per year. A collector can be paid £5 per day up to £500 per year. That seems to be a fairly obvious answer but I hope that makes the position clear.

Lord Richard

My Lords, before the noble Earl sits down, is he saying that a collector does not solicit? If that is so, I understand him.

Earl Ferrers

My Lords, I believe that a collector collects and does not solicit.

Lord Simon of Glaisdale

My Lords, I can see that the noble Earl is sitting down, but —I use the conventional phrase—before he sits down finally, perhaps I may say that I cannot accept that my noble and learned friend's amendment throws any doubt at all upon the provisions of the Interpretation Act. Even if there were something in that, that can easily be avoided by the use of the common statutory phrase, "without prejudice to the Interpretation Act, section so and so".

Earl Ferrers

My Lords, with the leave of the House, I said that I shall consider the points which have been made and I shall consider the points made by the noble and learned Lord, Lord Simon of Glaisdale. I found appealing the arguments of the noble and learned Lord, Lord Brightman, but I am advised that the amendment is wrong in legal terms. However, if your Lordships will accept my amendment, I shall look at this matter.

I probably did not give the noble Lord, Lord Richard, a full answer to his question about collecting and soliciting. Collectors can solicit and others can solicit as well as collectors. That encompasses the point fairly roundly.

On Question, amendment agreed to.

Lord Brightman had given notice of his intention to move Amendment No. 59: Page 48, line 21, at end insert: (" "company" has the same meaning as in section 46 of the Charities Act 1960 as amended by section 111(2) of the Companies Act 1989").

The noble and learned Lord said: My Lords, I do not believe that, even had I wished to do so, I should be able to move Amendment No. 59 as Amendment No. 58 has been accepted. Therefore, I do not move the amendment.

[Amendment No. 59 not moved.]

Lord Swinfen moved Amendment No. 60: Page 48, line 30, leave out ("or otherwise procuring").

The noble Lord said: My Lords, this amendment is designed to clarify that only fund-raising businesses directly soliciting money or property will be regulated under the Bill.

In Committee I represented a considerable anxiety throughout the charitable sector that the definition of a fund-raising business was so broad as to include under regulations activities by outside agencies in support of charitable fund-raising which would be detrimental to the generation of enormous sums of charitable income.

The House will agree that all of us accept that where an external agent makes direct solicitation to the general public regulations should apply. In Committee my noble friend Lord Ferrers clarified the Government's intention with respect to that aspect of the Bill. He indicated that outside agencies contracting services to charities and other voluntary organisations in the course of their fund-raising activities would not be regulated under the Bill. That clarification is extremely helpful.

In order to ensure that that intention is properly clarified on the face of the Bill and so as to allay the considerable anxiety which still exists within the charity sector in that respect, the amendment seeks to remove the words "or otherwise procuring" from the definition of the type of activity undertaken by fund-raising businesses.

When a fund-raising business solicits, it asks for money or other property. No other form of solicitation can achieve that. "To otherwise procure" may therefore confuse the scope of the Bill and lead some to interpret direct activity by outside agencies as being appropriate for regulation.

As the Minister said in Committee, this is an important part of the Bill and we must be seen to be absolutely clear as to what it is and is not our intention to regulate. I believe that my amendment achieves that end. I beg to move.

Lord Morris of Castle Morris

My Lords, the amendment proposed by the noble Lord, Lord Swinfen, reflects the considerable anxiety expressed throughout the charitable sector that organisations contracting fund-raising services to charities will be regulated by the Bill.

As I understand it, the amendment tries to make clear the expressed intention of the Government during Committee stage that only where direct solicitation of funds takes place should those outside agencies be regulated. If I am correct about that, it is an important amendment that clarifies a matter which has caused considerable anxiety throughout the charitable sector.

The noble Lord, Lord Swinfen, is right to say that a fund-raising business can do nothing but solicit for money or other property, if it solicits at all. That is its only form of solicitation. As he says, "to otherwise procure" may confuse the scope of the Bill and leave some people to interpret indirect activity by outside agencies as being appropriate for regulation. That may well deter outside agencies from acts of altruism which they would otherwise perform. I hope that the Government accept the amendment.

Viscount Astor

My Lords, as my noble friend Lord Swinfen said, he is not sure what the phrase "or otherwise procuring" means in the definition of "fund-raising business" in Clause 58. I shall endeavour to cast some light on the question. In particular, my noble friend may be anxious that the inclusion of those words in the definition of "fund-raising business" extends its application so as to catch the contractual arrangements between charities and commercial organisations for the provision of services such as writing fund-raising copy.

My noble friend need have no fears on that point. My noble friend Lord Ferrers made it clear in Committee that contractual arrangements of that kind will not be caught by Part II of the Bill and I am happy to repeat those assurances.

The words are intended to deal with a situation where, although an appeal or a campaign is undertaken solely by a professional fund-raiser, the appeal literature appears to come from the charity itself with the name and address of the fund-raiser appearing, sometimes inconspicuously, as the recipient of donations and so forth. The key factor is that the fund-raiser is the agent who makes the appeal and gathers in the funds. In such a case the reference to soliciting alone would probably be inadequate because the solicitation would appear to come from the charity even if, in reality, it was from the fund-raiser. The expression, "procuring" is used in preference to "obtaining" in order to make clear that the fund-raiser in question must actively achieve the obtaining of funds for charitable purposes and not simply be a passive recipient by accident.

I hope that that explanation addresses the anxieties of my noble friend as well as those of the noble Lord, Lord Morris of Castle Morris.

Lord Swinfen

My Lords, I am not sure that it does. If I remember my training as a chartered surveyor—now many years ago—when studying the law of agency, the agent acted in the same capacity as the principal. What was undertaken by the agent was as though the principal had undertaken it. Therefore, I am not sure that my noble friend's argument is correct.

However, I shall take the matter away and look at it, but reserve my right to return to it at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Ferrers moved Amendment No. 61: Page 48, line 31, after ("charitable") insert (", benevolent or philanthropic").

The noble Earl said: My Lords, Amendment No. 61 was spoken to with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 62 to 64: Page 48, line 33, leave out (", in relation to any charitable institution,"). Page 48, leave out lines 37 to 43 and insert: ("(b) any other person (apart from a person excluded by virtue of subsection (1A) or (1B)) who for reward solicits money or other property for the benefit of a charitable institution, if he does so otherwise than in the course of any fund-raising venture undertaken by a person falling within paragraph (a) above;"). Page 48, line 48, at end insert: ("(1A) In subsection (1), paragraph (b) of the definition of "professional fund-raiser" does not apply to any of the following, namely—

1. (a) any charitable institution or any company connected with any such institution;
2. (b) any officer or employee of any such institution or company, or any trustee of any such institution, acting (in each case) in his capacity as such;
3. (c) any person acting as a collector in respect of a public charitable collection (apart from a person who is to be treated as a promoter of such a collection by virtue of section 65(3));
4. (d) any person who in the course of a relevant programme, that is to say a radio or television programme in the course of which a fund-raising venture is undertaken by—
1. (i) a charitable institution, or
2. (ii) a company connected with such an institution, makes any solicitation at the instance of that institution or company; or
5. (e) any commercial participator;

and for this purpose "collector" and "public charitable collection" have the same meaning as in Part III of this Act. (1B) In addition, paragraph (b) of the definition of "professional fund-raiser" does not apply to a person if he does not receive—

1. (a) more than—
1. (i) £5 per day, or
2. (ii) £500 per year,

by way of remuneration in connection with soliciting money or other property for the benefit of the charitable institution referred to in that paragraph; or (b) more than £500 by way of remuneration in connection with any fund-raising venture in the course of which he solicits money or other property for the benefit of that institution.").

The noble Earl said: My Lords, I wish to move Amendments Nos. 62 to 64 en bloc. They were spoken to with Amendment No. 58. I beg to move.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 65: Page 48, line 48, at end insert: ("( ) In this Part any reference to charitable purposes, where occurring in the context of a reference to charitable, benevolent or philanthropic purposes, is a reference to charitable purposes whether or not the purposes are charitable within the meaning of any rule of law.").

The noble Earl said: My Lords, Amendment No. 65 was spoken to with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 66 to 68: Page 48, line 48, at end insert: ("( )) For the purposes of this Part a company is connected with a charitable institution if—

1. (a) the institution, or
2. (b) the institution and one or more other charitable institutions, taken together,

is or are entitled (whether directly or through one or more nominees) to exercise, or control the exercise of, the whole of the voting power at any general meeting of the company."). Page 49, line 25, at end insert: ("( ) Where any fund-raising venture is undertaken by a professional fund-raiser in the course of a radio or television programme, any solicitation which is made by a person in the course of the programme at the instance of the fund-raiser shall be regarded for the purposes of this Part as made by the fund-raiser and not by that person (and shall be so regarded whether or not the solicitation is made by that person for any reward)."). Page 49, line 31, at end insert: ("( ) The Secretary of State may by order amend subsection (1B) by substituting a different sum for any sum for the time being specified there.").

The noble Earl said: My Lords, I wish to move Amendments Nos. 66 to 68 en bloc. They were spoken to with Amendment No. 58. I beg to move.

On Question, amendments agreed to.

8.45 p.m.

Clause 59 [Prohibition on professional fund-raiser etc. raising funds for charity without an agreement in prescribed form]:

Earl Ferrers moved Amendment No. 69: Page 49, line 34, leave out ("charity") and insert ("charitable institution").

The noble Earl said: My Lords, in moving Amendment No. 69 I shall speak also to Amendments Nos. 70 to 78 and 112 to 116. Clause 59 as drafted requires a professional fund-raiser or a commercial participator to have a written agreement with the charity for which he is raising funds.

In Committee I accepted the argument that benevolent and philanthropic institutions which engaged professional fund-raisers or entered into an agreement with a commercial participator, should also be subject to those safeguards provided by Clause 59. The amendments therefore extend the requirement for a written agreement to professional fund-raisers and to commercial participators who are acting for benevolent or philanthropic institutions. I hope that they meet with your Lordships' approval. I beg to move.

Baroness Mallalieu

My Lords, those who breach the provisions of the Act in respect of the control of fund-raising should not be able to take advantage of a possible lacuna in the legislation which may exist if the meaning of "charity" in the 1960 Act were to be applied. The amendments close that lacuna. We are grateful to the Government for introducing them and give them our support.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 70 to 78: Page 49, line 35, leave out ("charity") and insert ("institution"). Page 49, line 39, leave out ("charity") and insert ("charitable institution"). Page 49, line 40, leave out ("charity") and insert ("institution"). Page 49, line 41, leave out ("charity") and insert ("charitable institution"). Page 49, line 43, leave out ("charity") and insert ("institution"). Page 50, line 4, leave out ("charity") and insert ("charitable institution"). Page 50, line 7, leave out ("charity") and insert ("institution"). Page 50, line 10, leave out ("charity") and insert ("institution"). Page 50, line 14, leave out ("charity") and insert ("institution").

The noble Earl said: My Lords, I wish to move Amendments Nos. 70 to 78 en bloc. They were spoken to with Amendment No. 69. I beg to move.

On Question, amendments agreed to.

Clause 60 [Professional fund-raisers etc. required to specify institutions benefiting and arrangements for remuneration]:

Earl Ferrers: moved Amendment No. 79: Page 50, line 30, leave out from ("a") to end of line 31 and insert ("statement clearly indicating—").

The noble Earl said: My Lords, in moving Amendment No. 79 I shall speak also to Amendments Nos. 80, 81 and 83 to 87. These amendments are designed to address anxieties expressed in Committee about the disclosure statements which, under Clause 60, are required to be made by professional fund-raisers and commercial participators.

It has been suggested that the present provisions requiring a clear and accurate statement, particularly as to the method by which the professional fund-raiser's remuneration in connection with the appeal is to be determined, set too rigid a formula given the variety of fund-raising appeals undertaken by professional fund-raisers and commercial participators, and the various different ways in which they can be remunerated.

The requirement for a clear and accurate statement appears to be a daunting one. Where there are uncertainties about how much an appeal might raise, it would be difficult for donors to be given accurate information in all the circumstances. The amendments ensure that the required statement regarding the method by which a professional fund-raiser's remuneration will be determined and so on need only be given in general terms and that the statement in regard to the names of the charities concerned and the proportion of the proceeds of an appeal undertaken by professional participators which will reach them needs only to indicate those matters clearly.

Amended in that way the requirements of Clause 60 will be flexible enough to enable professional fund-raisers and commercial participators to tailor the statement they make to the circumstances of the appeal in question. I beg to move.

Lord Morris of Castle Morris

My Lords, we are grateful to the noble Earl for tabling these amendments and for the care that was taken in their drafting.

The Government amendments to Clause 60 seek to achieve two things. First, the consequential amendments to those tabled in Clause 58 seek to harmonise the definitions of "charity" and "other voluntary organisations". Secondly, the amendments are designed to address some of the worries raised in Committee that the precise wording of the "clear and accurate statement", which must be provided by outside agents to all potential donors, is too onerous.

While the amendments are designed to make the provisions more practical, it remains a matter of a little unease as to exactly what will be required. I find it difficult to formulate a question to the noble Earl in a way that does not sound silly. I tried to say, "What exactly does 'general terms' mean?" I thought that the noble Earl would be bound to say that it means in terms that are general and not specific. I would not be much further forward, but I would be well put down.

I thought, "When does a statement 'clearly indicate' and when does it not?" The noble Earl would reply that it clearly indicates when it indicates clearly and not in any unclear fashion. In the end I tried to think of what I wanted to achieve clarification on. The best way I can put it is this. Is there a way in which an outside agent will be able to test whether the proposed wording of a statement is sufficient to meet the demands of the law? If the answer is no, or it is an insignificant question, I shall be well satisfied. If the noble Earl can help my curiosity with that matter, I shall be grateful. We are happy to give these amendments a welcome although we see them as closely associated with the amendment brought to this clause by the noble Lord, Lord Swinfen, which requires the Secretary of State to provide guidelines explaining the content of the statement to be made by outside agencies. It may be that if that amendment is in anyway acceptable, the guidelines will remove any residual anxiety that I may feel.

Earl Ferrers

My Lords, I am grateful to the noble Lord, Lord Morris of Castle Morris, for having asked what he called his absurd questions and then answered them himself. I realise the difficulties in asking questions and trying to get the answers which one desires. As regards the statement, it will have to be true and correct. That is the first point. It need not go into the detail and precision that a test of accuracy would impose.

I accept that such a test would be too rigid given the variety of fund-raising methods used. That is why I introduced the element of flexibility which is contained in these amendments. I appreciate that Clause 60 places new duties on professional fund-raisers and commercial participators. They will be at the bottom of what one might call a fairly daunting learning curve. It is only right that the Government should help fund-raisers along that new curve. I am happy to undertake that we shall, in consultation with practitioners, give appropriate help and guidance to them so that they do not fall into any unfortunate traps.

Lord Morris of Castle Morris

My Lords, I am most grateful to the noble Earl for that reply which I find very helpful indeed.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 80 and 81: Page 50, line 32, after ("name") insert ("or names"). Page 50, line 35, after ("(c)") insert ("(in general terms)").

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 82: Page 50, line 38, after ("charitable") insert (", benevolent or philanthropic").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 83 to 87: Page 50, line 40, leave out from ("a") to end of line 41 and insert ("statement clearly indicating—"). Page 51, line 1, after ("(c)") insert ("(in general terms)"). Page 51, line 6, leave out from ("a") to end of line 7 and insert ("statement clearly indicating—"). Page 51, line 8, after ("name") insert ("or names"). Page 51, line 11, after ("(c)") insert ("(in general terms)").

The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 79. I beg to move.

On Question, amendments agreed to.

Lord Swinfen moved Amendment No. 88: Page 51, line 20, at end insert: ("( ) The Secretary of State shall issue guidelines as to the content of any statement required by virtue of subsections (1) to (3) above.").

The noble Lord said: My Lords, this amendment is designed to provide practical guidance to outside agents soliciting funds or property when conforming to the regulations to be laid under the Bill. In response to concern expressed by many at Committee stage, my noble friend has brought forward amendments addressing the specific nature of the statement that must be made by outside agents to potential donors.

While I welcome those amendments, I, and also a large number of charities and voluntary organisations, and fund-raising businesses, remain concerned at the potential for confusion that still exists as to precisely what type of statement will be required. My noble friend said, when dealing with the last group of amendments, that guidance would be issued. Therefore, I hope that he can agree that this amendment should form part of the Bill. While doing so, perhaps he will give a general indication as to the type of guidance that he has in mind. I beg to move.

Earl Ferrers

My Lords, we have already discussed Amendment No. 79 and others in my name which are designed to mitigate the effects of the disclosure requirements in Clause 60. I have said that the disclosure requirements in that clause should be flexible enough to enable the professional fund-raisers and the commercial participators to tailor the statement which they make to the circumstances of the appeal in question. I do not believe that statutory guidance from the Secretary of State would be helpful. If he were to issue statutory guidance in this kind of area it would have to deal with every contingency. Professional fund-raisers in fact raise funds in an enormous variety of ways and the nature of their remuneration can depend on a variety of factors, not least in some circumstances the total proceeds of the appeal.

I do not believe that statutory guidance could be formulated which could cover every eventuality. There would be other problems as regards statutory guidance, not least of which would be the question of what status the guidance would have in law. I understand the concerns that my noble friend has. I do not believe that statutory guidance is an approach which I can recommend. I explained to the noble Lord, Lord Morris of Castle Morris, that Clause 60 places new duties on professional fund-raisers. They will have to learn what to do. It is only right that the Government should help them along this new route. As I explained, in consultation with the practitioners, we will give every help and guidance to them which we can and which will be appropriate.

Lord Swinfen

My Lords, I thank my noble friend for his reply although in some respects it is a little disappointing. I would like to read what he has said. I may come back to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 89: Page 51, line 21, leave out subsection (4) and insert: ("(4) If any such solicitation or representation as is mentioned in any of subsections (1) to (3) is made—

1. (a) in the course of a radio or television programme, and
2. (b) in association with an announcement to the effect that payment may be made, in response to the solicitation or representation, by means of a credit or debit card,

the statement required by virtue of subsection (1), (2) or (3) (as the case may be) shall include full details of the right to have refunded under section 61(1) any payment of £50 or more which is so made.").

The noble Viscount said: My Lords, in moving this amendment I shall speak to Amendments Nos. 90, 91, 92, 93, 95, 98, 99, 100, 102, 104, 105, 106, 109 and 111.

In Committee we considered in some depth the provisions in Clauses 60 and 61 giving donors, in certain circumstances, the ability to obtain a refund of a donation or payment made to a professional fund-raiser or commercial participator. I have considered carefully the points made in Committee, and I accept that the balance of the argument is in favour of creating a lower limit on the availability of refunds. My consultations since Committee stage have revealed the fact that the costs of refunding a credit card payment do not fall far short of the £50 limit favoured by the Committee.

These amendments therefore retain the principle behind those moved in Committee by the noble Lord, Lord Beaumont of Whitley, and simply make a number of drafting improvements. Amendment No. 89 goes one step further. It expressly ties in the requirement to make a statement about the refund provisions in the context of radio or television broadcasting to those occasions where the facility to give by credit or debit card is offered. I am sure your Lordships will agree that there is no need for the statement to be made where no such facility exists. I beg to move.

Lord Beaumont of Whitley

My Lords, I have been looking gift horses very carefully in the mouth ever since the noble Earl, Lord Ferrers, said that he was always persuaded by the person whom he last heard. I realise that, as regards this Bill, the last person whom he hears is always himself. In this case there does not appear any need to look carefully. I am extremely grateful to the Government for having accepted this amendment. The extra provision that they have put in about the statement being made concerning the rights of people who contribute, is acceptable. I am very grateful and so, I am sure, will be the various charities.

Lord Morris of Castle Morris

My Lords, we are happy to welcome these amendments. They seem to be a constructive and helpful response to the very real unease and uncertainty which many of us felt at earlier stages of the Bill about the possibility of the power of the media being overpersuasive on impressionable people. They seem to give us everything for which we asked.

On Question, amendment agreed to.

9 p.m.

Viscount Astor moved Amendments Nos. 90 to 93: Page 51, line 34, after ("payment") insert ("of £50 or more"). Page 51, line 36, leave out from beginning to ("a") in line 37. Page 51, line 41, after ("(ii)") insert ("including full details"). Page 51, line 43, leave out ("a payment") and insert ("any payment of £50 or more").

On Question, amendments agreed to.

Lord Simon of Glaisdale moved Amendment No. 93A: Page 52, line 10, after ("shall") insert ("if 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. 93B, 94A and 94B, though the two latter amendments fall if Amendment No. 94 is carried.

These amendments and the clause to which they relate raise much the same issue as the amendments moved to Clause 3, as the noble Viscount, Lord Astor, pointed out when dealing with the amendments to Clause 3. There are two differences. The administrative requirements laid on trustees by Clause 3 are different from the administrative requirements laid on professional fund-raisers by Clause 60. The other difference of course is that one deals with trustees; the other with professional fund-raisers.

In a letter from his office today the noble Viscount indicated that further consideration was being given to Clause 3. I apprehend that consideration will be given at the same time to Clause 60. As I said, there is a difference and no doubt some compunction is now being felt about larning trustees to be toads and perhaps not the same consideration would be paid to professional fund-raisers. But the juristic and constitutional issues are the same. If the noble Viscount who is to reply would indicate that this clause will be considered along with Clause 3, I shall ask leave to withdraw the amendment.

Baroness Mallalieu

My Lords, before the noble Viscount answers the questions that have been put to him, perhaps I may say briefly that I hope he will feel it right to include these amendments in his consideration of those on Clause 3. They are important in that they make the person who was in fact responsible for failure to comply with Clause 60 liable for the consequences. They make sense, we would say, as a matter both of common sense and justice. I am bound to ask what is the point of criminalising the behaviour of those who have committed no offence themselves and who are not at fault. If the noble Viscount gives an indication in relation to Clause 3, I would ask him also to give consideration to these amendments in relation to Clause 60.

Viscount Astor

My Lords, the provisions in Clause 60 are important. They ensure that, where a professional fund-raiser or commercial participator is acting on behalf of a charity, every potential donor is given the information he needs to make an informed decision about whether, and how, he should make a donation. It is right, therefore, that these new duties on fund-raisers should be enforceable, and I do not think that anyone disagrees that a criminal offence is the right way to do this.

The clause as drafted imposes a strict criminal liability on the professional fund-raiser or commercial participator concerned; that is to say, the professional fund-raiser or commercial participator making the solicitation or representation in relation to which the relevant requirement of subsections (1) to (5) of Clause 60 is not complied with. This liability is tempered by subsection (8) which provides a defence that the person charged took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. In order to avail himself of this defence, the person charged must establish, on the balance of probabilities, that he was not negligent in failing to avoid the commission of the offence.

We have already had a good deal of discussion in another context about the reversal of the onus of proof. This is an important question—I do not dispute that—but I do not think it inappropriate to reverse the onus of proof in this instance.

I shall explain why and, I hope, to your Lordships' satisfaction. The purpose of the provisions in Clause 60 is to protect charitable institutions and donors to such institutions by ensuring that potential donors are given certain information before they decide whether or not to make a donation. The National Council for Voluntary Organisations said in its 1986 report Malpractice in Fundraising for Charity that the key to protecting the interests of donors and charities was the provision of information. Clause 60 demonstrates the Government's agreement with that conclusion.

The duty to make the statement is a strict one and the responsibility for making it is placed on the professional fund-raiser or commercial participator concerned. The duty bites on him and no one else. It is his responsibility therefore to put in place a system which ensures that the necessary statement is made.

The noble and learned Lord's amendment would limit the commission of the offence under subsection (7) to those professional fund-raisers or commercial participators responsible for or privy to the default in question and consequentially removes the due diligence defence in subsection (8). I think that it could be very difficult to establish that a particular fund-raiser is responsible for, or indeed privy to, a default which may have been caused by the actions of one or more of the fund-raiser's employees.

In Clause 60 we are protecting donors in a way that is very similar to the protection given to consumers under other legislation. There are numerous precedents in that consumer protection legislation for strict liability offences of this kind. I have in mind the Consumer Protection Act 1987, the Fair Trading Act 1973, the Trade Descriptions Act 1968 and the Food Act 1984.

Subsection (9) of Clause 60 provides that where the commission of an offence is occasioned by the act or default of some other person, that other person is guilty of the offence and may be charged and convicted whether or not the professional fund-raiser or commercial participator is also prosecuted for the same offence; that is, failing to make the statement required by Clause 60.

The provision is designed to ensure that, where a professional fund-raiser's employees or agents go off on a frolic of their own and neglect to make the necessary disclosures, they are guilty of an offence whether or not the fund-raiser is also prosecuted. Of course, if the employer has taken steps to institute a proper system to ensure the making of the statement he will be able to rely on subsection (8).

It has been suggested that the wording of subsection (9) could catch solicitors or accountants who advise professional fund-raisers or commercial participators. We have looked at the matter again and I have to say that we do not see how that could be so. The duty placed on the professional fund-raiser is to disclose certain information when soliciting funds. The act or default relates to the failure to disclose that information when soliciting for funds.

Subsection (9) of Clause 60 cannot render solicitors liable to prosecution under this clause if they advise their client incorrectly about when the provisions of Clause 60 apply. They are under no duty to make any disclosures. The offence relates to the failure to make the required statements of disclosure.

I listened carefully to the arguments put forward on the provision and to the remarks made by the noble and learned Lord. As I said, the duty is a strict one and it is placed on the professional fund-raiser. It does not bite on charity trustees or their employees. That is the important point. Such people are specifically precluded by Clause 58 from being professional fund-raisers and commercial participators. Of course I understand the concerns raised by noble Lords. But we are concerned, first and essentially, with protecting charities and benevolent and philanthropic institutions and, secondly, with protecting donors and potential donors. The Government believe that the clause as drafted gives appropriate protection to them, to professional fund-raisers and to commercial participators when exercising all due diligence.

As the noble and learned Lord said, we are looking again at Clause 3. However, I submit to him that Clause 60 is a much narrower clause. It defines a much smaller group of people. For those reasons, and in view of the rather lengthy explanation that I have given, I hope that noble and learned Lord will see the merit of the argument.

Lord Simon of Glaisdale

My Lords, I absolutely despair of the Government. As regards Clause 3, I specifically asked the noble Viscount before he read out his completely negative brief whether the matter might be reconsidered. He said no. I cannot blame him because every brief to a Minister on an amendment ends with the word "Accept" (though very rarely); "Consider" (slightly less rarely); or "Reject". Quite obviously the brief that the noble Viscount has just read ended with the word "Reject". Therefore it was not open to him to say that the matter would be reconsidered.

However, it now appears that Clause 3 will be reconsidered. On Clause 3, the noble Viscount said that the amendments ran parallel and that the issues were similar to those raised on Clause 60. But he now reads a brief which must have been written at the same time as the completely negative brief that stated that Clause 3 could not be reconsidered.

He has really not addressed the constitutional argument put forward by three former Home Office Ministers. I refer to my noble friend Lord Allen, who was a most distinguished public servant and the most eminent Permanent Secretary of the Home Office of his generation, to the noble Viscount, Lord Brentford, whose grandfather was Home Secretary, whose father was a Conservative Minister and who is himself a leading solicitor in London, and to my noble and learned friend Lord Browne-Wilkinson, who is the greatest expert, together with my noble friend Lord Allen, on charities in your Lordships' House. But not a word of that argument has been taken in and not an inch has been budged.

If now, as I must, I withdraw the amendment, there is still time for the noble Viscount, or the noble Earl preferably, to rise again to speak and say that the matter will be reconsidered; otherwise I shall certainly move the amendment again on Third Reading.

Viscount Astor

My Lords, before the noble and learned Lord sits down, I must say that I believe he was slightly unfair to me. I took very seriously the arguments he put forward when we looked at Clause 3. I also looked at the speech that I was due to make tonight. I looked at it in great detail. I must tell the noble and learned Lord that the speech was revised considerably; indeed, we put much work into it—the explanation I gave was lengthy—and tried to address the issues which arose.

I said that we thought that Clause 60 was much narrower than Clause 3. I have tried as much as is possible to look at the points raised by the noble and learned Lord. Of course, in the light of what he has said, we shall look again at the matter. We cannot ignore such powerful arguments. I know that the noble and learned Lord will understand that I cannot agree to consider his amendment in terms of introducing something similar, but we shall nevertheless look carefully at it again between now and Third Reading.

Lord Simon of Glaisdale

My Lords, I cannot possibly quarrel with the noble Viscount. His father and I were colleagues in another place, and his succession to the "Treasury Bench" therefore gives me particular pleasure. He has at any rate put a toe forward and has said that the matter will be considered before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93B to 94B not moved.]

9.15 p.m.

Clause 61 [Cancellation of payments made to professional fund-raisers etc.]:

Viscount Astor moved Amendment No. 95: Page 52, line 31, after ("payment") insert ("of £50 or more").

The noble Viscount said: My Lords, this was taken with Amendment No. 89. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 96: Page 52, line 33, leave out ("14") and insert ("seven").

The noble Viscount said: My Lords, in moving Amendment No. 96, I shall speak also to Amendments Nos. 101 and 107. As presently drafted, Clause 61 gives donors in the circumstances specified up to 14 days to reconsider their donation and to obtain a refund. I said in Committee that I was considering whether the period of 14 days was too long and might cause unnecessary problems for professional fund-raisers and commercial participators. There is a balance to be struck between protecting the interests of donors and ensuring that the valuable work of professional fund-raisers is not subject to unnecessary checks.

I have concluded that the interests of donors and fund-raisers are best met by reducing to seven days the period in which the former may request a refund. I beg to move.

Lord Morris of Castle Morris

My Lords, in the fourth chapter of the Epistle to the Ephesians, does not Saint Paul advise us: let not the sun go down upon your wrath"? In other words, "you ought to be able to control your passions by reason within a period of about 12 hours"; but perhaps that is a little too demanding for this secular society. As the noble Viscount said, we are faced with the problem of striking a balance between the necessary cooling-off period for rash, impetuous and subsequently regretted acts of charitable giving, and the rights of any charity to order its affairs efficiently, which it cannot do if it cannot say what its appeal has brought in until weeks after the appeal was made.

We are thinking of an appeal made in the course of a radio or television programme. In such a context, a cooling-off period of 14 days seems to have no merits that are not possessed by a seven-day period. Impetuosity—even generous impetuosity—can surely be reconsidered in a week of anybody's life, and the advantage to any charity of a reduced period is obvious. It was illustrated during our earlier consideration of the Bill. The balance now seems about right, and we welcome the amendment.

Lord Swinfen

My Lords, I shall not follow the noble Lord, Lord Morris of Castle Morris, down the theological path, but wish merely to thank the Government for giving this matter their consideration. I welcome all the Government amendments to this clause.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 97: Page 52, line 37, leave out ("the full amount of").

The noble Lord said: My Lords, in moving Amendment No. 97, I should like to speak also to Amendments Nos. 103, 108 and 110.

I undertook in Committee to table amendments that would enable professional fund-raisers and commercial participators to deduct their reasonable administrative expenses from the sum to be returned when refunding donations, or whatever. These amendments are the result, and I trust that they will meet with your Lordships' approval. I beg to move.

Lord Morris of Castle Morris

My Lords, once again we are presented with the problem of setting a just balance. Should the law penalise an act of rash generosity which is later repented or should the cost of repentance be borne by the charity as part of its unavoidable overheads? We on these Benches take the view that one must be responsible for one's rash actions, be they generous or not, and it seems proper that the costs of such repayment should not fall on the charity. I ask the noble Viscount for clarification on one point only. In Amendment No. 110 the phrase, administrative expenses reasonably incurred by the relevant fund-raiser in connection with— (i) the making of the refund", seems imprecise. It may be deliberately imprecise. It could, after all, include everything from first-class stamps and the registered delivery of letters to a charge for one's employees' time or labour, plus heat and rent of the premises upon which the work was done. Is the proposed new wording for Clause 61(4) intended to allow wide discretion to the fund-raiser, or is this a matter upon which it is felt that common sense can be left to prevail? I should be grateful for any help that the noble Viscount can give.

Viscount Astor

My Lords, the term "administrative expenses" is intended to cover the direct costs of refunding the payment for costs such as staff time, postage, bank charges and so forth. It will also cover the costs of dealing with any notice of cancellation of an agreement to make payment.

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 98 to 100: Page 52, line 39, leave out from ("fund-raiser") to end of line 40. Page 52, line 45, after ("payment") insert ("or payments"). Page 52, line 46, after ("fund-raiser") insert ("and the amount or aggregate amount which the donor is, or may be, liable to pay to him under the agreement is £50 or more").

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 101: Page 53, line 1, leave out ("14") and insert ("seven").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 102: Page 53, line 8, after ("payment") insert ("or payments").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 103: Page 53, line 9, leave out ("the full amount of")

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 104 to 111: Page 53, line 10, after ("payment") insert ("of £50 or more"). Page 53, line 11, leave out from ("fund-raiser") to end of line 13. Page 53, line 16, after ("payment") insert ("of £50 or more"). Page 53, line 19, leave out ("14") and insert ("seven"). Page 53, line 24, leave out ("the full amount of"). Page 53, line 25, leave out from ("fund-raiser") to end of line 27. Page 53, line 29, after ("above") insert: ("(a) is a right to have refunded to him the amount of the payment less any administrative expenses reasonably incurred by the relevant fund-raiser in connection with—

1. (i) the making of the refund, or
2. (ii) (in the case of a refund under subsection (2)) dealing with the notice of cancellation served by that person; and

(b)") Page 53, line 45, at end insert: ("( ) The Secretary of State may by order—

1. (a) amend any provision of this section by substituting a different sum for the sum for the time being specified there; and
1216
2. (b) make such consequential amendments in section 60 as he considers appropriate.").

On Question, amendments agreed to.

Clause 62 [Right of charitable institution to prevent unauthorised fund-raising]:

Earl Ferrers moved Amendments Nos. 112 and 113: Page 55, line 1, leave out ("charity") and insert ("charitable institution"). Page 55, line 4, leave out ("charity") and insert ("institution").

The noble Earl said: My Lords, I beg to move these amendments which were taken with Amendment No. 69.

On Question, amendments agreed to.

Clause 64 [Regulations about fund-raising]:

Earl Ferrers moved Amendments Nos. 114 to 116: Page 55, line 25, leave out ("charities") and insert ("charitable institutions"). Page 55, line 26, leave out ("charities") and insert ("institutions"). Page 55, line 27, leave out ("charities") and insert ("institutions").

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 117: Page 55, line 32, at end insert: ("( ) provide for any provisions of section 60 or 61 having effect in relation to solicitations or representations made in the course of radio or television programmes to have effect, subject to any modifications specified in the regulations, in relation to solicitations or representations made in the course of such programmes—

1. (i) by charitable institutions, or
2. (ii) by companies connected with such institutions,

and, in that connection, provide for any other provisions of this Part to have effect for the purposes of the regulations subject to any modifications so specified;").

The noble Viscount said: My Lords, I indicated in Committee that I would be giving further thought to whether the refund provisions in Clause 61 of the Bill should be extended to cover appeals undertaken by charitable institutions. Having consulted widely, in particular with a number of charities which undertake broadcast appeals and others, we have come to the conclusion that this is not necessary. Those consulted raised no objections to the principle of enabling donors to obtain a refund where they may have given injudiciously in response to a broadcast appeal; such refunds were given, if requested by donors, by the organisers of the major appeals—the ITV Telethon, Comic Relief etc. as a matter of good practice. But they were concerned that coupling their appeal message with a statement about the availability of a refund might prove confusing, lead to an increase in frivolous donations and undermine current initiatives for self-regulation of broadcast appeals by charities.

I see the weight of these arguments. The Home Office is currently giving financial support towards the development of a voluntary code of practice for broadcast appeals. The charities concerned have indicated their willingness to include in that voluntary code a requirement that donors of over a certain sum (the Bill sets the refund provision at £50, and we think this about right) should be informed in writing or by telephone that they may cancel the donation.

In the light of this, I have decided that there is no need to extend the refund provisions to broadcast appeals by charities or other charitable institutions at this time. I propose however that the Bill should give the Secretary of State a reserve power to extend those provisions in Part II of the Bill to broadcast appeals undertaken by charitable institutions or their wholly controlled subsidiaries if in the light of experience self-regulation proves inadequate. Hence my amendment. I beg to move.

Lord Richard

My Lords, I am trying to follow this and I am not having much success at the moment. Can we try again? Then perhaps I may be able to understand what it is about. As I understand it, Amendment No. 64 to Clause 58 which was moved tonight—

Viscount Astor

My Lords, we are on Amendment No. 117.

Lord Richard

My Lords, if the noble Viscount will allow me to explain the difficulty in my own way then no doubt he will be able to cast light on it. Amendment No. 64 proposed that the definition of "professional fund-raiser", does not apply to any of the following … any person who in the course of a relevant programme, that is to say a radio or television programme in the course of which a fund-raising venture is undertaken by—

1. (i) a charitable institution, or
2. (ii) a company connected with such an institution".

So the amendment says that a venture by a charitable institution which makes any solicitation is not a professional fund-raiser and therefore is not subject to the restrictions on professional fund-raisers which are set out in the Bill.

Amendment No. 67 which we made to Clause 58 includes a reference to a "professional fund-raiser": Where any fund-raising venture is undertaken by a professional fund-raiser in the course of a radio or television programme, any solicitation", then the restrictions on professional fund-raising seem to apply.

Amendment No. 117 proposed by the noble Viscount gives rise to my difficulty. Does it suggest that by regulation one can impose restrictions on a professional fund-raiser which we have set out in Amendment No. 64 on a venture by a charitable institution to which we referred in Amendment No. 67?

The noble Viscount presented the amendment as though somehow or other it was for the relief of charities. In other words, it lifted a burden on them. It seems to me that the danger of the amendment is that one is giving power to the Secretary of State not to lift the burden on charities but to impose additional burdens on charitable institutions while soliciting money by radio or television which, without the regulations, do not exist. If I am wrong, I quite accept that it is because I am a bear of small brain, particularly at half-past nine at night. If I am not wrong, I should be grateful to know why the Government need such sweeping powers which could include the eventuality which I had in mind.

9.30 p.m.

Lord Houghton of Sowerby

My Lords, Clause 64 deals with regulations concerning fund raising. Amendment No. 117 adds to that clause. However, that still leaves the matter of paragraph (d) on line 33 of page 55 of the Bill. That is the sweep-up provision. I understand that provision gives the Secretary of State power to make regulations over all and sundry who might be making appeals for charitable donations.

Professional fund-raisers have been given a lot of space in this Bill. We even now know who they are. Companies and commercial interests have been defined. But what I have been looking for and have found no specific reference to are the broadcasting authorities which are the biggest fund raisers of all. I keep coming back to this matter. As the Bill deals so freely with generalities and particularises so rarely, I wonder therefore whether the television authorities are included in the words "or otherwise" at the end of line 35. Can this be so? What is our understanding of the position of the television authorities which are raising millions of pounds and do not appear to be clearly identified in this Bill? That is the matter on which I seek clarification. Where do I have to look in the Bill to obtain clarification on that matter?

I understand that some of the appeals for funds that take place on radio and television are now in the hands of subsidiary bodies which are registered charities and therefore come within the provisions of the charities Acts. Can that not be stated somewhere in the Bill, or is it left to the Secretary of State to make regulations governing the making of appeals by broadcasting authorities? What is the position?

Much is left unsaid as regards these sources of charitable funds in a Bill for which we have been waiting 30 years. The Bill should be comprehensive and should put the matter of fund-raising beyond doubt or difficulty. I hope the sweep-up powers of the Secretary of State that are provided in Clause 64 apply to the broadcasting authorities that make appeals on the radio or the television asking people to send money to them. They do not ask people to send money to any charity. The broadcasting authorities make the appeal on behalf of a cause and not on behalf of identified charities. The broadcasting authorities ask people to send money to them and thereafter the money is in their custody. All matters relating to accounting and accountability are in their hands. Where is it stated that the Secretary of State has the powers to make regulations governing these appeals? That is the question that I ask. I may be dense and dull about that, but it is a very difficult Bill to follow, as all will agree who have studied it carefully. So little explanation is offered as we go along. It makes one wonder whether this is the way to do the job.

We now see that the Committee stage could have been longer in order to deal with some matters which have been raised on Report. We finished after three and a half sessions and we have not met since. One difficulty about that is that one has to do one's homework all over again to find out where we were before Christmas when we finished the Committee stage. I sympathise with Ministers. The noble Earl does not know how much more sympathy I have with him than for almost any other Minister sitting on the Bench opposite. He bears a very heavy load in many ways. One can understand how wearisome that may become. Now we are on the job we have to do the best we can and finish it. I hope that my question can be answered so that I can be silenced for the rest of this sitting.

Viscount Astor

My Lords, I am sorry if I confused the noble Lord, Lord Richard, with my explanation. As he said, Amendment No. 64 deals with persons appearing on behalf of professional fund-raisers or commercial participators, and Amendment No. 117 deals with appeals by charities. The noble Lord will remember that at Committee I said that we were considering whether the refund provisions in Part III of the Bill should be extended to cover appeals undertaken by charitable institutions in television and radio broadcasts. Following further discussions with representatives of the broadcasting authorities, charities and others, we concluded that that was not necessary, as I said earlier. Reliance will be placed instead on self-regulation by charitable institutions and broadcasters.

Further, the Secretary of State is being given a reserve power in the Bill to extend the refund and other provisions of Part II of the Bill to broadcast appeals by charities if self-regulation proves inadequate.

Lord Richard

My Lords, I am obliged to the noble Viscount. It is not just a question of the power to extend the £50 issue, it is the power to impose regulations which regulate the way in which affairs are conducted if self-regulation does not work. As I understand it, the problem is that the Government agree to self-regulation; but if they do not like what people come up with, there will be sweeping powers, which are set out in the amendment, to impose whatever regulation the Government wish. If that is the position, all I am saying is that the powers are very much wider in reality than in appearance.

Viscount Astor

My Lords, with the leave of the House, the regulations which we would impose would be exactly the same as those under which professional fund-raisers or commercial participators operate.

I have said that we are helping to develop a voluntary code of practice covering broadcast appeals to be agreed with the charities and the broadcasting authorities. They are all happy with that approach and we feel that it is the best approach. The amendment provides a power in case that approach does not work. The code will be the same one as that which affects commercial participators and professional fund-raisers.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 118: Page 55, line 34, after ("charitable") insert (", benevolent or philanthropic").

The noble Earl said: My Lords, the amendment was spoken to with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Clause 65 [Interpretation of Part III]:

Earl Ferrers moved Amendment No. 119: Page 56, line 12, at end insert ("and").

The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, if Amendment No. 120 is agreed to I cannot call Amendment No. 121.

Earl Ferrers moved Amendment No. 120: Page 56, line 17, leave out from ("charitable") to end of line 20 and insert (", benevolent or philanthropic purposes.").

The noble Earl said: My Lords, I spoke to this amendment earlier. I beg to move.

Lord Allen of Abbeydale

My Lords, it seems to me that my only course is to oppose this amendment since if it is agreed to, the amendment in my name cannot be called. Perhaps I should explain why I prefer my amendment to be considered rather than the one which the Minister has moved. My amendment is coupled with a great many others. However, the point at issue is very simple and need not take very long to explain.

The fact that it is necessary to propose the provision in Clause 65(1) (c), that "charitable purposes" as there defined should have an exception made for Section 72 strikes a warning note and indicates that something very odd lies ahead. Indeed it opens the way to achieving the rather remarkable result that "charitable purposes" in Clause 72 has a meaning there which differs from the definition applying to the whole of the rest of Parts II and III of the Bill. The reason is that Clause 72 contemplates that the power to give nationwide authority for collections covering street collections as well as house-to-house collections is to be transferred from the Home Office to the Charity Commission. Clearly the Charity Commission can deal only with charities and charitable purposes as defined in the 1960 Act.

It seems to me that unfortunately the problem is not solved by the Government's amendment. It would leave in the air, as it were, organisations which wished to make collections for benevolent or philanthropic purposes if they were not charities within the narrow definition. Hitherto they have been able to go to the Home Office for authority for house-to-house collections, but now they would have no means under Clause 72 of obtaining a nationwide authority.

The problem may be illustrated by the plight of Amnesty International, although the problem is not unique. Amnesty International has over 300 local branches. This clause would mean that each one would have to negotiate separately with the local authority concerned. In Committee the noble Earl said that it was all right because Amnesty International had two arms which were registered charities. However, I fear that it is not all right as those two arms are research bodies with a rather narrow remit.

I can well understand why the statute should not authorise the Charity Commission to deal with bodies which, strictly speaking, are not charities, but for the life of me I cannot see why other bodies with a benevolent or philanthropic purpose should be put to enormous inconvenience because the right to apply for a nationwide order has been taken away. Nor would the new arrangement have all that much appeal to local authorities which have not been in the habit of devoting much of their resources to local applications and will be more reluctant than ever, given other pressures on them, to cope with massive applications from bodies such as Amnesty International.

I do not want to widen the discussion further and encroach on later amendments. But it seems to me that there is also a problem about urgent appeals which are made nationwide following some major disaster. Such an appeal tends to be made immediately before there is any time to become registered as a charity even if the body organising the appeal wishes to become a charity. The problem of going to individual local authorities is not consistent with the need for an immediate appeal. There have been occasions when the Government have encouraged an immediate appeal. The only solution that would meet the problem would be for the new power to rest with the Home Office and not be transferred to the Charity Commission. The Home Office has experience in dealing with applications for house to house collections. It could consult the Charity Commission if need be. It is presumably already equipped to deal with those applications —they cannot be all that numerous—with its customary efficiency. If the Home Office continues to keep that responsibility it should spare a little more manpower for the Charity Commission to cope with its other new tasks.

I remind noble Lords that we are legislating not only for today but for some years to come. Who knows what problem will arise under that head? For those reasons, I much prefer, and recommend to your Lordships, the course suggested in my amendment.

9.45 p.m.

Lord Harris of Greenwich

My Lords, I very much agree with everything that the noble Lord said. The Government have moved a great deal on the Bill. I welcome the many amendments that have been brought before us today and on a previous occasion to take account of matters raised in Committee.

However, I am extremely disappointed that the Government do not appear to have dealt with this issue. As the noble Lord, Lord Allen of Abbeydale said, the Government are transferring the responsibility from the Home Office to the Charity Commission. They then say, as did the noble Earl in the Public Bill Committee, that, given the fact that the responsibility has been passed to the Charity Commission, only charities can be covered.

The facts are as the noble Lord, Lord Allen of Abbeydale, stated. The effect of a change of procedure of the kind that he has described will be extremely damaging to a number of organisations. The most obvious example is Amnesty International. How can it possibly be sensible to make Amnesty International apply to 300 separate local authorities? The Government have rightly said that they want less bureaucracy in local government. I can think of no worse example to cite.

Apart from the issue of Amnesty International, there is the question of an emergency appeal. The matter was raised in Committee. One refers to the Armenian disaster and the Bangladesh disaster. If we keep the power to make those exemptions within the Home Office, the issue can be dealt with satisfactorily. No doubt the Home Office wishes to pass those general responsibilities on to the Charity Commission. But for the reasons that I and the noble Lord, Lord Allen of Abbeydale, have given, it seems prudent in all the circumstances to allow the Home Office to continue to grant those exemptions. Without that power a number of organisations will be seriously affected.

Lord Judd

My Lords, there may be a lack of understanding of what happens in a charity or other voluntary organistion when an emergency situation arises and the urgency is acute. At that stage the resources of the organisation are taxed to the limit. Everything is geared to make a success of the appeal in a special situation. To encumber the organisation at precisely that point with extra responsibilities in applying to a variety of authorities across the country creates a situation in which things will go wrong. There needs to be an understanding of how charities work under the pressure of the moment. It is important that regulations can be effectively applied. That is another reason why I believe what is now being argued is correct.

Lord Swinfen

My Lords, I too support what was said by the noble Lord, Lord Allen of Abbeydale. The Government need to rethink this part of the Bill and the amendments which they have moved to Clause 72. We have not yet reached that amendment but we are talking about emergency relief in the case of disasters in various parts of the world.

My Amendment No. 135 is grouped with government Amendment No. 133A. If that is agreed to I cannot move Amendment No. 135. My amendment is designed specifically to make it legal for organisations which are not charitable as the Bill stands to collect money in response to disasters. The noble Lord, Lord Harris, mentioned the Bangladeshi cyclone, earthquakes in Turkey, the Aberfan disaster and so forth. As the Bill is drafted, and with the amendments tabled by the Government, that will be impossible.

There is in this country a deep well of generosity which is being capped by my noble friends. They are doing so unintentionally, I am sure, but they need to look at the matter closely. If Amendment No. 120 is carried and the noble Lord, Lord Allen, is not able to move his amendment, and if the government Amendment No. 133A is carried and I am not able to move my Amendment No. 135, the generosity of our fellow countrymen will not be able to give effect to prompt and proper relief for disasters in various parts of the world.

Lord Mottistone

My Lords, Amendment No. 120 is the last in a batch of amendments which changes the wording a little. It is not of itself important. However, it has the effect of removing part of the Bill which requires amendment in order to deal with a serious problem, as explained by the noble Lord, Lord Allen. The problem was expanded on by other noble Lords, including my noble friend Lord Swinfen.

I suggest that my noble friends should not move Amendment No. 120 at this stage. That would allow the argument to develop in respect of the amendments tabled by the noble Lord, Lord Allen. We have heard half the argument already and shall not need to cover that ground again. Perhaps my noble friends will take the same action in respect of Amendment No. 133A, although it is not nearly as important as the amendments tabled by the noble Lord, Lord Allen. One wishes to have them properly debated, although not necessarily included in the Bill. They should be debated so that we can return to the matter on Third Reading when the Government can consider what to do about the small changes to the wording in respect of which Amendment No. 120 is the last.

I implore my noble friends to take a course of that nature. It will enable the important amendments, which I am sure they agree are important, to be handled properly. I am sure that in various ways we can tidy up the Bill at Third Reading.

Lord Richard

My Lords, I admire the procedural ingenuity which the noble Lord, Lord Mottistone, has shown. It appears to be a good way of dealing with the problem. If the Government do not move Amendment No. 120 the debate on it can be attributed to Amendment No. 121. The issues being discussed are precisely the same.

The points made against the Bill as presently framed are unarguable. I shall be interested to hear what the Government say. I understand that the Bill as drafted means that in a national appeal a major charity must apply to perhaps 300 local authorities for permission to make an appeal. That is nonsense. I do not believe that anybody in this House would wish that to happen.

I wonder why, as a result of the Bill as it now stands, permission must be sought from the Charity Commissioners rather than the Home Office. It seems to me that the Home Office has done that job quite well over the years and is used to doing it. Why should we change that? There is an old American maxim, "If it works, don't fix it". I require some evidence before I accept the Government's position that there is benefit in transferring that responsibility from the Home Office to the Charity Commissioners. We have not heard such evidence.

I accept that the noble Earl has been generous in the way that he approached the Bill and the criticisms made about it. However, I urge him to look again at this issue and perhaps come back at Third Reading with a set of amendments to deal with the position as raised by the noble Lord, Lord Allen of Abbeydale.

Lord Renton

My Lords, before deciding what we should do, if anything, to change the law with regard to those matters, we should consider how matters are working at present. When an appeal is made on behalf of a registered charity there is no problem. However, at present many appeals are made for relief of disasters or misery of one kind or another all over the world. Those appeals are not made on behalf of a registered charity at all, but for the most part they work satisfactorily in that the money which leaves this country contains the greater part of the money subscribed in this country. Sometimes we know, alas, that the money is misspent when it arrives at the other end. However, the system has not worked too badly so far, as we all know.

If we are to change the system and put it on a basis of regulation, we must make quite sure that in doing so we do not diminish, as has been suggested by my noble friend Lord Swinfen, the generosity of the people of this country in trying to help those who are suffering abroad. That is a factor which it is worth bearing in mind before deciding to change the law at all.

Earl Ferrers

My Lords, I understand the problems which your Lordships have expressed. The noble Lord, Lord Richard, said that the suggestion of the noble Lord, Lord Mottistone, not to move Amendment No. 120 was ingenious. However, if we do not move the amendment, we shall leave what the noble Baroness, Lady Mallalieu, would say was a lacuna in the Bill. Therefore, we cannot follow that suggestion.

I can see that if we move this amendment, the noble Lord, Lord Allen of Abbeydale, will not be able to move his amendment. The noble Lord, Lord Mottistone, said we must discuss the amendment in the name of the noble Lord, Lord Allen of Abbeydale. In fact, we are doing that while discussing Amendment No. 120.

The noble Lord, Lord Richard, said that the case was unanswerable. I am always frightened when people say that. I believe that there is an answer. We discussed this in Committee and I said that I would look again at the matter. I have done so but I do not believe that I can advise your Lordships that the change which the noble Lord, Lord Allen, seeks to make is suitable. I shall endeavour to explain why.

Under the existing law (Section 3 of the House to House Collections Act 1939), an organisation may seek an exemption order from the Secretary of State where it pursues a charitable purpose throughout the whole or a substantial part of England and Wales. A charitable purpose, in this case, means any charitable, benevolent or philanthropic purpose whether or not it is charitable within the meaning of any rule of law. The exemption order from the Secretary of State, if granted, allows the organisation to carry out house-to-house collections without obtaining a licence from the individual local authorities in whose areas it wishes to collect. There is no equivalent provision in respect of street collections.

As your Lordships will realise, Part III of the Bill introduces a single regime for all types of public charitable collection. So exemption orders will be available in respect of all types of collection for charitable purposes. That is an extension of the existing concession; it is not a constriction. However, our underlying aim is to provide a better supervisory regime for collections. The whole thrust of Part III, as elsewhere in the Bill, is to ensure greater accountability and better supervision.

The exemption order system is, as I said, a concession. It is discretionary. It will not be available to just anyone who applies. Given that the provision is designed to help charities collecting on a national scale, the potential sums which may be raised through collections authorised by such orders are substantial. It is right that those holding such orders should be subject to the closest possible scrutiny. We therefore think it right to transfer the responsibility for granting such orders from the Home Secretary to the Charity Commissioners; and at the same time to restrict the availability of such orders to charities, and not to extend it to benevolent and philanthropic institutions.

The noble Lords, Lord Harris and Lord Richard, said that we should leave the responsibility with the Home Office. But the Home Secretary has no means of policing the operations of those to whom he grants exemption orders. Nor does he have any power to investigate their suitability for this concession. So he cannot tell whether an applicant for an exemption order is likely to act responsibly. That has been a source of concern for some time. The Bill has given us the opportunity to tighten matters up.

It is true that the Home Secretary could obtain the audited accounts of benevolent and philanthropic institutions were he to grant an exemption order to such a body. He could do this by making that a condition of the order. But he could not go behind the accounts he then received. He has no powers to investigate the organisation in question, or to scrutinise its internal controls and administration or to remedy deficiencies should those be brought to his attention. The Charity Commissioners do have such powers but they are of course limited to charities.

Lord Allen of Abbeydale

My Lords, perhaps I may interrupt the noble Earl. I made it clear that I realised that the Home Office was responsible for house to house collections and that this was an extended power relating to street collections. Is the noble Earl saying that my department is inefficient and has not been doing its job properly in regard to applications for house to house collections?

Earl Ferrers

My Lords, I do not know whether the department was inefficient when the noble Lord, Lord Allen, was in charge of it; I am sure that it was not. It is certainly not inefficient now. I am saying to the noble Lord that the Charity Commissioners will have certain powers of investigation over charities which at the moment my right honourable friend does not, whether that is over charities, philanthropic or benevolent institutions.

The Charity Commissioners will have those powers but they are limited to charities. They have no jurisdiction over benevolent and philanthropic bodies and therefore no means of calling them to account. To extend the commissioners' jurisdiction to such bodies would be to make a fundamental change in their role. I do not think your Lordships wish that, nor has it been suggested.

Equally, I do not believe that it would be right to give the Home Office supervisory powers in this area. I do not see that non-charitable bodies will be seriously disadvantaged by limiting the availability of exemption orders. They will still be able to carry out a national appeal. There are many ways in which money can be raised other than by a public collection for which a licence is necessary. We have in other contexts talked about coffee mornings, sponsored slims in people's offices, garden parties and all kinds of other things. All of these methods are open to the non-charitable appeal. Donations can also be invited via direct mail or telephone calls, or through the broadcast media. These are often the preferred methods and no permit is required for them.

At present all the existing exemption order holders are charities. One was held by a non-charitable body which, as the noble Lord, Lord Allen of Abbeydale, said, was Amnesty International, but it lapsed last year. So far as we can discover, that is the only non-charitable body which has had an exemption order in the past. So we are not actually withdrawing something which someone has eagerly sought; they have not sought it. Indeed, it has hardly been sought after at all. Therefore, it is not a question, as the noble Lord, Lord Allen of Abbeydale, said, that we shall be putting benevolent and philanthropic institutions to an enormous amount of trouble and having to advise them to go to all sorts of different local authorities.

Amnesty International is not a charity, but a philanthropic institution. Local groups raise funds locally. They have to obtain a licence for street collections to do so, apparently without much difficulty. I do not see that the position will be any different under the new legislation which we propose.

The noble Lord, Lord Allen, and others, raised the question of disaster appeals. So far as I can discover, no applications for exemption orders have been received from those who have organised such appeals. My understanding is that such appeals are usually made by television, radio or through newspapers. People are invited to make donations through their bank, building society or by credit card. Since those appeals have to be organised quickly, I doubt whether a series of public charitable collections, held on a national scale, would have much appeal to their organisers.

A disaster appeal which was a charity could be eligible for an exemption order if it so wished. That is permitted by my Amendment No. 133A which we shall come to later on. Therefore, we are extending the existing concession. We are introducing a better system for supervision. I venture to suggest that that would not be obtainable if the amendments of the noble Lord, Lord Allen of Abbeydale, were accepted. It would be a pity if we lost that point in trying to cater for what seems to be a very real problem.

I have tried to explain what I believe are genuine and real difficulties as regards the amendments of the noble Lord, Lord Allen of Abbeydale. In that respect, I hope that noble Lords will approve Amendment No. 120 which is in my name.

Lord Renton

My Lords, before my noble friend sits down, I wonder whether he can explain a rather crucial point. If a non-charitable body makes an appeal, which may be a very big public appeal, without obtaining an exemption order, what will happen? Will that be an illegal appeal? What will happen to the funds which the public subscribe in answer to that appeal?

Earl Ferrers

My Lords, if a body wishes to make an appeal, and it is a charitable body, it would have to get an exemption order from the Charity Commissioners if it so wished. If it were a philanthropic or benevolent institution, if it wanted to make a national appeal it would have to apply to the various local authorities. If it did not apply, but made a national appeal without such an application, it would be infringing the law because the permission which the Home Secretary gives at the moment, would not be given because that right to give it would be removed.

Lord Renton

My Lords, that is a very clumsy arrangement.

Baroness Faithfull

My Lords, I am still puzzled and I should be grateful for some more help. Was Geldof, who made the appeal for Ethiopia, really expected to write to all the authorities in England over that appeal?

Earl Ferrers

My Lords, it is always difficult to start taking into account individual cases. All I can tell my noble friend is that, when one appeals for something which is of a charitable nature, one has to have permission to do that nationally. A disaster appeal is different because an appeal is not a charity if it goes above giving the people what is required for their need. If the appeal is for something more than their need, it comes under a disaster appeal which can be for philanthropic purposes. GeldoEs appeal was of course made by way of the media and was not a house-to-house collection.

10.11 p.m.

The Lord Chancellor

My Lords, the Question is that Amendment No. 120 shall be agreed to. As many of that opinion will say, "Content"; to the contrary, "Not-Content". I think the "Contents" have it. Clear the Bar.

Division called.

Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the "Contents" have it.

On Question, amendment agreed to.

[Amendments Nos. 121 and 122 not moved.]

10.15 p.m.

Earl Ferrers moved Amendment No. 123: Page 56, line 22, at end insert: ("( ) is made—

1. (i) on land within a churchyard or burial ground contiguous or adjacent to a place of public worship, or
2. (ii) on other land occupied for the purposes of a place of public worship and contiguous or adjacent to it,

being (in each case) land which is enclosed or substantially enclosed (whether by any wall or building or otherwise); or").

The noble Earl said: My Lords, in Committee the right reverend Prelate the Bishop of Worcester moved an amendment to exclude collections in churchyards and similar areas from the need to obtain a local authority permit under Part III of the Bill. His amendment was technically defective; the present amendment is intended to give effect to its intentions. It excludes from the definition of "public charitable collection", and therefore from the need for a permit, and so on, under Part III of the Bill, any collection made in a churchyard or other similar place which is adjacent to any place of worship.

I accept the argument made in Committee that special considerations apply in respect of such places. For example, parishioners have certain rights of access to the churchyard of their church to tend the graves, and so on. It seems to me that the different church authorities exercise sufficient control over the conduct of collections on their property as to make the involvement of the local authority superfluous. Therefore, the right reverend Prelate may continue his ascents in his hot air balloon without any further anxiety. It is to be hoped that he is a good driver, because, if he were to land inadvertently in a public place and then exhort passers by to give to his cause, he would fall foul once again of the provisions of Part III of the Bill. I beg to move.

The Lord Bishop of Newcastle

My Lords, I thank the noble Earl for his speech. I am advised that the amendment fully meets the points made at an earlier stage of the Bill. I am very grateful for the attention that has been given to the points that were raised.

Lord Morris of Castle Morris

My Lords, the amendment seems to meet everyone's requirements. It is nice to hear hot air mentioned, especially as we have expended so much of it in the Chamber tonight. We did, perhaps, in Committee lie down and roll over a little on the matter of churchyards and burial grounds. The present wording of the amendment seems to avoid any grave difficulty. We welcome the amendment.

On Question, amendment agreed to.

Earl Ferrers: moved Amendments Nos. 124 and 125: Page 56, line 45, at end insert: ("( ) In this Part any reference to charitable purposes, where occurring in the context of a reference to charitable, benevolent or philanthropic purposes, is a reference to charitable purposes whether or not the purposes are charitable within the meaning of any rule of law."). Page 57, line 15, after ("charitable") insert (", benevolent or philanthropic").

The noble Earl said: My Lords, these amendments were spoken to when Amendment No. 56 was moved. I beg to move.

On Question, amendments agreed to.

Lord Swinfen moved Amendment No. 126: Page 57, line 28, leave out ("or any other").

The noble Lord said: My Lords, in moving the amendment I should point out to the House that part of the wording has been left out. The wording on the Marshalled List reads: Page 57, line 28, leave out ('or any other').

The amendment should read: Page 57, line 28, leave out (`or any other similar public area').

However, having said that, I should say that this is a probing amendment designed to clarify what the Government mean by the words "other similar public area" and to identify who will decide what is, or is not, such an area.

In Committee, those who took part were concerned with the original breadth of definition given to public collections in this part of the Bill. I was especially pleased to welcome amendments put forward by the Government in Committee which genuinely addressed those concerns, and alleviated the fears of many within the charitable sector that their fund-raising activities would become overly bureaucratic and less cost effective.

The Government now indicate explicitly those areas where licences will be required before public collections can be undertaken lawfully. I am concerned here only with the definition of what will constitute a "similar public area" to a station, airport or shopping precinct which might require permission before a public collection can take place.

In the practical execution of their responsibilities, I am concerned as to how charities and other voluntary organisations will be able to decide what constitutes such a public area, prior to undertaking a collection, so that they avoid breaching the law. I beg to move.

Lord Morris of Castle Morris

My Lords, I echo the concerns of the noble Lord, Lord Swinfen. This is a practical, everyday matter that has caused concern to professional practitioners who are concerned with the practical problem of the collections. Charities and other voluntary organisations need to know what "any similar public area" could be. They must make a decision before they undertake a collection; otherwise they could be in breach of the law. I do not imagine that an offender against this part of the law will be dragged off in irons to languish in the Tower, but perhaps now is the best possible time for us to be as clear as we possibly can be on this point.

We would welcome clarification about whether those concerned should get their information from the licensing authority, the Home Office or the Charity Commission—or should they contact all three organisations? Where exactly does authority in this matter reside? I should be grateful if the Minister could clarify what seems an important point.

Viscount Astor

My Lords, if I understood my noble friend Lord Swinfen correctly, he wants to know exactly what we have in mind when we refer in the Bill to public areas that are similar to public areas within stations, airports or shopping precincts. My noble friend would also like to know who will tell him, in practice, whether an area is similar to one of the named places.

In general terms, the answer to my noble friend's first question is that the words in subsection (7) of Clause 65 are designed to ensure that collections in places which are buildings but to which the public has ready access are regulated by Part III of the Bill. These places include railway stations, airports or ports for ferries to which the public has access without the need for a ticket, covered and uncovered shopping precincts and so on. Places such as the interiors of shops or theatres would certainly be excluded.

As to the question of who will know whether an area is similar or not, I think that the specific examples in subsection (7) of the public areas within a station, airport or shopping precinct sufficiently indicate the types of areas which fall within subsection (7) (b) (ii). The characteristics of these areas are that, even though they are within buildings and are privately owned, the public has unrestricted access for much of the day.

It will of course be for the local authority to judge in the first instance whether the proposed site for a public collection falls within the scope of subsection (7) (b) (ii). If the promoter of a public collection has any doubts he should seek guidance from the relevant local authority.

I hope that that provides clarification on the questions put to me by my noble friend and by the noble Lord, Lord Morris.

Lord Swinfen

My Lords, I thank the noble Lord, Lord Morris, for his support on this amendment. However, my noble friend Lord Astor has not clarified the situation to any great degree. The examples that he gave were those cited in the Bill, but I was after something a little more than that. I shall read what he has said and I hope that, having done so, I shall not need to return to this on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 [Prohibition on conducting public charitable collections without authorization]:

[Amendment No.127 not moved.]

Lord Allen of Abbeydale moved Amendment No. 128: Page 57, line 42, at end insert ("or (c) where regulations made by the Secretary of State provide for circumstances under which the need for a permit may be waived by a local authority.").

The noble Lord said: My Lords, I begin by expressing my satisfaction at the fact that the Government have narrowed the definition of places where permits must be obtained for collections. However, various representations have been made to me that the provisions could still be a shade too bureaucratic and oppressive in relation to some types of fund-raising which are well accepted and perfectly harmless.

People undertaking all kinds of collections, whether for funds or goods, are required under the Bill to obtain licences. It seems that that could include people who call round to collect for a jumble sale for charity, groups singing carols for children's charities or scouts who are washing parked cars to raise funds. They could face the threat of criminal sanctions if no licence is obtained. It may be worth noting that the DPP's consent would not be required.

Some of the activities are probably caught by the present law, but hard-pressed local authorities are not all that energetic in enforcing it. I have always made it clear that I approve entirely of the general proposition that there should be controls over collectors who go around asking for good or money, but in the type of case that has been put to me and which I have been describing there is a dilemma. On the one hand, if the law is not enforced it is brought into disrepute and, on the other hand, if it is enforced strictly, and criminal proceedings are possibly taken, there will be a feeling that that is a heavy-handed way of dealing with activities that have long formed part of our tradition and are unlikely to harm anyone.

The wording of the amendment may be susceptible to improvement, but there is a case for giving some discretion over the need for permits for fund-raising activities. The Secretary of State should have the ability, perhaps after more detailed consultation than has so far been possible with local authorities and voluntary organisations, to prescribe circumstances under which some of the requirements for permits might be waived. I beg to move.

Lord Morris of Castle Morris

My Lords, it seems to be a sensible amendment for dealing with a difficult situation. As the noble Lord, Lord Allen of Abbeydale, said, the law in this area is not being observed and neither is it being enforced. It is not being observed because people are, by and large, ignorant of it; it is not being enforced because no one can afford the resources to produce an effective enforcement of it.

Under the Bill as drafted, people undertaking all kinds of collections—bob-a-job weeks, or whatever they may be—are required to obtain a licence. Again, as the noble Lord pointed out, that requirement affects things that we encounter every day and every week—carol singing groups at Christmas and people coming around collecting jumble for all kinds of causes—and it would be unusual if your Lordships did not find, at least once every fortnight or three weeks, someone doing just that. Now that we know that they are probably not licensed, we may be aiding and abetting them in something that is illegal. The reality is that most people are unaware of the requirements and do not do anything about them.

We understand that the Government are concerned to maintain some control over collectors who go around asking for goods or money. That is at the heart of the Bill. Are we not faced with a genuine dilemma? We cannot enforce the law which is not being observed. The amendment offers a sensible way ahead —a way of striking a just balance as between regulating and controlling those collectors and deterring scouts and carol singers by strangling them with red tape. We shall be interested to hear the Government's response to the amendment, which seems to offer the most sensible and only possible way forward.

Lord Swinfen

My Lords, I support the amendment. It would not be compulsory for the Secretary of State to make regulations if the amendment is included in the Bill. It would be a useful tool for the Secretary of State to have, bearing in mind that methods of fund-raising and ideas for fund-raising will be changing over the years. The amendment is a sensible addition to the Bill.

Lord Renton

My Lords, on the other hand, I hope that my noble friend will not feel obliged to accept the amendment. One sympathises with the view that when there is a national charity or a charity which is making an appeal on a national basis it would be absurd to apply to every local authority before the appeal could be made.

However, Clause 72 covers the situation, in my view, satisfactorily. We are placing various obligations upon the Charity Commissioners rather than the Secretary of State.

10.30 p.m.

Lord Allen of Abbeydale

My Lords, I am sorry to interrupt but we are discussing Clause 66.

Lord Renton

My Lords, I quite realise that we are dealing with Clause 66, but in doing so we cannot ignore other provisions of the Bill. In any event, Clause 66(1) (b) refers to Clause 72 which states: Where the Charity Commissioners are satisfied, on the application of any charity, that that charity - … pursues any charitable purposes throughout the whole or a substantial part of England and Wales, and wishes to promote, or to authorise other persons to promote, public charitable collections in connection with those purposes, they may make an order under this section in respect of that charity". In those circumstances, I suggest that, first, it is best left to the Charity Commissioners; and, secondly, if we decide that it should be left to them, there is no need to give power to the Secretary of State to make regulations to provide for a waiver by a local authority. That situation is covered by Clause 72 to which Clause 66 refers. Therefore, with great respect to the noble Lord—

Lord Allen of Abbeydale

My Lords, I am sorry to interrupt the noble Lord again, but the amendment which I propose relates only to relaxing the circumstances in which a permit may be given by a local authority. It does not bite in any way on the order made by the Charity Commissioners under Clause 72.

Lord Renton

My Lords, I do not wish to repeat myself but, with great respect to the noble Lord, one cannot separate the provisions of Clause 66 from those of Clause 72. We must decide whether we will place the main responsibility, as the Bill does as a whole, upon the Charity Commissioners in such matters or whether the Secretary of State should be brought in, unnecessarily, in my opinion. Therefore I hope that my noble friend will stand by the Bill as it is.

Earl Ferrers

My Lords, I would not wish to become involved in the discussion between my noble friend and the noble Lord, Lord Allen of Abbeydale. The remarks which my noble friend made at the end are pertinent when he said that he hoped we would not try to bring the Secretary of State into areas where it was not necessary.

The whole point of Part III of the Bill is to reform the regime by which we supervise public charitable collections. It replaces the existing law on house-to-house collections and street collections.

Under the existing law, local groups of the kind to which the noble Lord, Lord Allen of Abbeydale, referred are required to obtain permission for collections made in public. I appreciate that some local groups may well regard this as a chore, but I do not think it is wrong in principle that those who appeal to the public's charitable instincts should be subject to what is, after all, a pretty light form of regulation.

The noble Lord, Lord Allen of Abbeydale, said that he was concerned with small local groups and informal fund-raising activities. But his amendment does not confine the regulation-making power in that or any other way. I think it would be difficult to define the kind of activities which the noble Lord has in mind without opening up the possibility of letting much more substantial collecting activities off the hook.

The effect of the Secretary of State's regulations under the noble Lord's amendment would only be to allow a local authority to waive the need for a permit. One wonders how that would be done. Is it intended that it should be on application to the local authority by the charity concerned, or will local authorities make some general announcement? Differences in practice between local authorities would be bound to create confusion and inconsistency.

The aim of Part III (which I think we all share) is that there should be a proper system for supervision. I appreciate the anxieties of some noble Lords, but there is a balance to be struck here between public accountability and private inconvenience. I do not think that the need to obtain a permit is an onerous one for small local groups. They are collecting from local people, and I see no reason why they should not be accountable locally for the moneys which they raise.

The noble Lord, Lord Allen of Abbeydale, referred to jumble sales. He said people are always conducting house-to-house jumble collections. That is perfectly true and bags are left outside people's houses and people are invited to put all kinds of things in the bags which are to be sold for the benefit of the charity involved. A rag and bone merchant may then sell the items collected on behalf of a charity. However, a rag and bone merchant, or whoever it may be, may retain 95 per cent. of the proceeds and send the charity concerned only a small percentage of the proceeds. That is precisely the kind of thing that we wish to stop.

The noble Lords, Lord Allen of Abbeydale and Lord Morris of Castle Morris, referred to carol singers. If I wished to collect for a charity in a street, I would need a permit. I would feel fairly miffed if all someone else did was to go down a street and sing a carol outside someone's door and that obviated the need for a permit. It is important that the same regulations apply in every case. The responsibility we are discussing is not an onerous one and I hope the noble Lord, Lord Allen of Abbeydale, appreciates that.

Lord Allen of Abbeydale

My Lords, I am obliged to the noble Earl for that explanation. I repeat this amendment has nothing whatsoever to do with Clause 72 and orders made by the Charity Commissioners. All it is concerned with are the powers of local authorities where an application is made to them for a permit. Although the noble Earl makes this matter sound so reasonable, the fact is the law is just not observed, nor will it be observed when this Bill has been passed and we shall again have the situation in which there are detailed provisions creating criminal offences which are not enforced. We are back to the old, old problem on which one or two of us have had to speak at earlier stages of the Bill.

I recognise the difficulty of prescribing in regulations the kind of activity I have in mind, but I still feel there is a dilemma on the one hand of having a law which is not enforced and on the other of having laws which are enforced in a way as to cause great concern and anxiety—and incidentally which will place extra burdens on local authorities notwithstanding the undertakings given when this Bill was introduced that it would not involve any extra expenditure for local authorities. However, I have made my point and I cannot pursue it further today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 129: Page 57, line 47, leave out from ("scale") to end of line 3 on page 58.

The noble Viscount said: My Lords, subsection (2) (b) of Clause 66 currently makes it an offence for a person to act as a collector in an unauthorised public charitable collection. In Committee Members were concerned that this offence could catch unfairly those persons asked by others to collect on behalf of a charity and who assumed in good faith that the requisite permission for the collection had been obtained.

I said in Committee I would seek to mitigate the effects of the offence by introducing an element of knowledge. I must say however that I find it difficult to formulate a defence which refers to the absence of knowledge that something is wrong on the part of the collector and which would not be difficult to prove in practice. However, I have concluded that it is the promoter who has failed to obtain the necessary permit. It is he who should be prosecuted for failure to comply with the provisions of that permit rather than collectors. The amendment therefore removes the offence relating to collectors. In such circumstances promoters are already caught by the offence in Section 66(2) (a). Where collectors act fraudulently and obtain money dishonestly from the public there remains the option of prosecution under the Theft Act. Therefore the amendment will not create a loophole in protection to donors provided by Part III of the Bill. I beg to move.

Baroness Mallalieu

Perhaps I may briefly welcome the amendment. It makes sense. It is obviously right that the promoter should be responsible and not a collector. Indeed, it would impose an intolerable burden on volunteer charity workers if the position were to be otherwise.

In welcoming the amendment I say simply that it appears that the noble Viscount has struggled successfully with the concept of vicarious liability in relation to this clause. I hope that his struggle will be successful also in relation to Clauses 3 and 60.

On Question, amendment agreed to.

Clause 67 [Applications for permits to conduct public charitable collections]:

Lord Simon of Glaisdale moved Amendment No. 129A: Page 58, line 24, leave out from ("area") to end of line 25.

The noble Lord said: My Lords, this is a short amendment intended to leave out some unnecessary words at the end of Section 67(4) on page 58 of the Bill.

Clause 67 is concerned with applications to a local authority for permission to make a collection. Subsection (4) says that: Before determining any application duly made to them under this section, a local authority shall consult the chief officer of police for the police area which comprises or includes their area",

and continues with the words which are unnecessary— and make any such other inquiries as they think fit".

Of course local authorities can make other inquiries. It is absurd to suggest that they cannot. It is quite unnecessary to write that into the statute. The Bill refers to: the chief officer of police of the police area which comprises or includes their area".

Supposing the clerk of the council rang up the clerk of a neighbouring council whose area was also comprised. Could it possibly be said that that was beyond the powers of the local authority and that their handling of the application would be illegal and might be invalidated? Anybody who suggested that would be hooted out of any court with derision. It is with some confidence this time that I beg to move.

Lord Renton

My Lords, I most earnestly hope that the confidence of the noble and learned Lord is well justified. It is ridiculous to suggest that a local authority cannot make any inquiries which it jolly well pleases. I am astonished at the words and moderation that I use.

To keep those words in the Bill could be positively damaging. If they are included in the Bill some over-zealous person might say in the context of another Act of Parliament that "the words which appear in the Charities Act 1992: 'and may make such other inquiries as they think fit', are not included in this Act". In other words, if we keep the words we should be creating a ridiculous precedent. I hope that we shall leave them out.

10.45 p.m.

Viscount Astor

My Lords, again it falls to me to answer the noble and learned Lord, Lord Simon. This amendment was moved by my noble friend Lord Renton at Committee stage. I attempted to answer it then and I shall attempt to do so again.

Subsection (4) of this clause makes it clear that local authorities may, when deciding whether or not to issue a permit for a collection, make such inquiries, in addition to consulting the police, as they think fit in the circumstances.

We thought that it would be helpful to spell that out. The inclusion of a specific duty to consult the police might be taken to exclude a discretion to consult other persons or bodies. It would be undesirable if a local authority felt inhibited from consulting widely, in view of the provisions in Clause 65, about conditions which may be included in a permit and the provisions in Clause 69 about the grounds for refusal. Inevitably, therefore, local authorities will make inquiries before taking a decision on an application.

We thought it was sensible to make that clear because this part of the Bill will not be read just by solicitors or professional fund-raisers, or indeed by noble Lords who have much greater knowledge of the law than either I or others. It will be read by trustees and others organising local appeals. We are trying to ensure that the Bill is clear to the layman as well as to the professional. Therefore we thought that it was important to have all the words in this clause.

It is a Bill which will be read by people involved in charities, very often in small charities. They will not have a great deal of professional expertise. We are trying to make life as easy for them as we can. I take note of the comments made by my noble friend Lord Renton and the noble and learned Lord. I shall look again to make sure that our words are clear; but I have to say that at the moment I think that they are.

Lord Renton

My Lords, perhaps my noble friend will allow me to interrupt. He has addressed your Lordships on the proposition that it is the charity trustees who have to take cognisance of this clause. But the point is that it is the local authority who will have to do so. The charity trustees will simply have to rely upon the local authority. We are not concerned here with the inquiries which the charity trustees have to make.

Viscount Astor

My Lords, I fully accept the point made by my noble friend. The local authorities are obviously the ones who will do the consulting. My point - perhaps I did not explain it as well as I should have done - is that we want to make it clear to those people reading the Bill that this will happen, as well as making it clear to the local authority. I hope that that goes some way to answer the question put by my noble friend.

However, as I said, we shall look again at the point. I cannot give any commitment to bring forward any amendment. I believe that it is the intention of us all to make the Bill as clear as possible.

Lord Allen of Abbeydale

My Lords, before the noble Viscount sits down, perhaps I may congratulate him on saying that this is a Bill to be read by non-lawyers and is to be understood by the ordinary person. Will he bear that in mind when he comes to consider the earlier amendment put forward by my noble and learned friend?

Viscount Astor

My Lords, with the leave of the House, I can certainly assure the noble Lord, Lord Allen, that I shall bear that in mind.

Lord Simon of Glaisdale

My Lords, the noble Viscount said valiantly that the words are clear. So they are. Nobody has gainsaid that. The point is that they are completely unnecessary. It does not need a lawyer or a layman to read these words, leave out the part that is sought to be left out and say, "Good gracious me‡ We have made inquiries of the chief officer of police. Obviously, we must not make inquiries of anybody else." I suggest that any such submission is too ridiculous for words. I hope that the noble Viscount will consider the matter much more seriously than he indicated.

One refers back to a point that the noble Lord, Lord Renton, and I have pointed out on occasions. In 1975 when the Renton Committee reported the statute book ran to three volumes. Ten years later, with fewer statutes, it ran to five volumes. It was pure verbiage inflation. The format was then enlarged but within two years the statute book again ran to five volumes. I ask the Government to consider much more seriously not whether the words are clear but whether they are strictly necessary. Could anyone possibly be led astray if the words I seek to leave out were left out? Leaving it at that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 129B: Page 59, line 7, leave out from ("section") to ("and") in line 8 and insert ("71").

The noble and learned Lord said: My Lords, this is another attempt to shorten the Bill. I hope that we shall be more successful.

The end of Clause 68 states, and that notice shall also state the right of appeal conferred by section 71(1) or (as the case may be) section 71(2)".

The amendment seeks to leave out, [subsection] (1) or (as the case may be) section 71(2)".

The reason is quite simple. The clause referred to has only two rights of appeal. Those are set out in subsections (1) and (2). The remaining subsections are ancillary to those two rights of appeal. All that is necessary is to refer to the rights of appeal conferred by Clause 71. I beg to move.

Lord Renton

My Lords, we should again be grateful to the noble and learned Lord, Lord Simon of Glaisdale. Perhaps I may say with the deepest respect and in the kindest way possible that Ministers are responsible for the drafting of Bills. They are not bound to accept the advice of draftsmen or pass the buck to them. Ministers must take the responsibility themselves.

Viscount Astor

My Lords, the amendment was moved by my noble friend Lord Renton on behalf of the noble and learned Lord in Committee. I attempted to answer it then. I shall attempt to answer it again.

The present wording of Clause 68(4) is intended to he helpful. Clause 71 gives a right of appeal in two clearly defined sets of circumstances, first, under subsection (I) where a permit is refused by a local authority and, secondly, under subsection (2) where the local authority attaches conditions to the permit, varies any such conditions or withdraws the permit.

With the Government's wording of the provision, the applicant would have to be pointed by the local authority to the precise subsection where his right of appeal is to be found. Under the noble and learned Lord's amendment, the provision would simply require a reference to Clause 71 without further precision. In my view that would be less helpful than what we have proposed in Clause 71 as drafted.

I understand the anxieties about cluttering up the statute book with unnecessary words. However, we do not believe that these nine or 10 words will do so much damage as to warrant their deletion. That is so, particularly bearing in mind the help which they are designed to give the promoters of collections by revealing the two important and differing situations in which the right of appeal is exercisable. That is important because it shows specifically the two cases.

As always, I take seriously what the noble and learned Lord says and I respect his views. Obviously, we shall look at what he has said tonight. We are trying to make the Bill clear and the words which appear there make it clear. I do not see the great benefit in removing them. I hope that I shall not be attacked too much by the noble and learned Lord if I say that those few extra words will make a positive difference in helping people to understand Clause 68.

Lord Simon of Glaisdale

My Lords, the noble Viscount has repeated in mellifluous tones and almost with conviction the argument that he put forward in Committee. I hope that he will not take it amiss if I say that, unlike fine port, his argument has not improved with age. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 [Refusals to issue permits]:

Earl Ferrers moved Amendment No. 130: Page 59, line 24, after ("charitable") insert (", benevolent or philanthropic").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Clause 72 [Orders made by Charity Commissioners]:

The Lord Chancellor

My Lords, Amendments Nos. 133 and 133A appear in the wrong order on the Marshalled List.

[Amendments Nos. 131 to 133 not moved]:

Earl Ferrers moved Amendment No. 133A: Page 62, line 39, leave out from second ("charity") to end of line 44 and insert ("proposes— (a) to promote public charitable collections—

1. (i) throughout England and Wales, or
1240
2. (ii) throughout a substantial part of England and Wales,

in connection with any charitable purposes pursued by the charity, or (b) to authorise other persons to promote public charitable collections as mentioned in paragraph (a), the Commissioners may make an order under this subsection in respect of the charity.").

The noble Earl said: My Lords, in moving the amendment I shall speak also to Amendment No. 141A. These amendments alter slightly the criteria which a charity must meet in order to be able to apply for an exemption order under Clause 72.

As the clause stands, two conditions need to be satisfied before an exemption order can be considered. Those conditions are that the charity pursues charitable purposes throughout the whole or a substantial part of England and Wales and that it wishes to promote collections for those purposes. The question is whether the clause as drafted will allow the commissioners to grant an exemption order to a charity which is or is intended to be active in fund-raising across all or a substantial part of England and Wales, albeit that its purposes were not so directed. I have in mind, for example, charities whose purposes are directed overseas or to a specific area of England and Wales, but which raise funds nationally.

These amendments, therefore, make it clear that the commissioners will be able to grant an exemption order to a charity which wishes to promote public charitable collections throughout all or a substantial part of England and Wales. I beg to move.

The Lord Chancellor

My Lords, if this amendment is agreed to I cannot call Amendments Nos. 134 to 139 inclusive.

Lord Renton

My Lords, as I referred to Clause 72 when we were discussing Clause 66 and an amendment moved by the noble Lord, Lord Allen of Abbeydale, it is only right that I should say that I was referring to Clause 72 as it then appeared in the Bill because there was no certainty that your Lordships would accept the amendment now moved. However, as the amendment has been moved, I should say that I am content also with that just as I was with Clause 72 in its original form. Indeed, there seems to be no great change of substance and the amendment now moved by my noble friend on the Front Bench seems to be admirable.

11 p.m.

Lord Judd

My Lords, it would be churlish not to put on record my appreciation for the move which has been made in this direction because there had been alarm at the fact that charities concentrating on work overseas or dealing with specific disasters—Hillsborough or a specific disaster at sea and so on —had been excluded under the previous drafting. People are extremely grateful and that should be on record.

Lord Richard

My Lords, as I understand Amendment No. 133A, the Charity Commissioners can—I am not sure that the right word is "authorise" —permit public charitable collections throughout a substantial part of England and Wales. Therefore, the charity does not have to ask the permission of every local authority.

Subsection (2) states: Such an order shall have the effect of authorising public charitable collections … to be conducted in such area or areas as may be specified in the order". What happens if the local authority does not agree to the collection? Can it stop it, even though authorisation has been given by the Charity Commission? It may not like the purposes for which the national appeal, under Clause 72, will be made. I am not sure what is the relationship between the two authorities.

Lord Swinfen

My Lords, I am grateful for the movement made by my noble friend on the clause. Perhaps he will clarify what the Government understand by the words: a substantial part of England and Wales". I know that my Amendment No. 136, which I do not believe we shall now be able to discuss, contains similar words but I should like to know what is intended by those words.

The amendment supersedes Amendment No. 136 and I welcome it. However, I am not sure that it deals with the kind of disasters which were intended to be covered by my Amendment No. 135 unless—and I rather doubt it—paragraph (b), to authorise other persons to promote public charitable collections as mentioned in paragraph (a)", would cover that point. I shall be interested in my noble friend's response.

I should advise him that if the disaster is not covered by the Bill as amended on Report, I hope that he will bring forward a government amendment to cover it. If that is not done, I must move an amendment on Third Reading.

Earl Ferrers

My Lords, there is an inherent flexibility in the phrase: a substantial part of England and Wales". In the first instance it will be for the Charity Commissioners and ultimately for the courts to decide whether a proposed public charitable collection covers a substantial part of England and Wales. That is an alternative to a collection throughout England and Wales. I suggest that the collection would need to take place in a majority of the districts in England and Wales. For example, collections in association with a long-distance sponsored walk would be unlikely to cover a substantial part of England and Wales. To do so, the walk would have to pass through at least the majority of districts of England and Wales. A walk around the coastline of England and Wales would probably just about satisfy the requirement; a walk across the Pennines would not.

My noble friend Lord Swinfen was worried about exemption orders for a disaster appeal. The amendment will allow disaster appeals which are established for charitable purposes to apply for an exemption order under this clause. They would be eligible for such an order whether they were concerned with a disaster in this country or abroad. The amendment would not allow disaster appeals established for benevolent or philanthropic purposes to obtain an exemption order for the reasons we heard on earlier amendments.

For those reasons the Government do not think it appropriate to extend the concession which the order represents to benevolent and philanthropic appeals. The noble Lord, Lord Richard, was worried—

Lord Richard

I was not worried; I just asked.

Earl Ferrers

The noble Lord was not worried; he just asked what the position was in regard to exemption orders. If an exemption order is given to a charity, it does not have to apply to every local authority for a new exemption order. However, it is obliged to consult the local authorities, inform them of its intentions and ask whether they are content. If the local authorities said that they were not content, the charity could not carry out its collections in that area.

On Question, amendment agreed to.

[Amendments Nos. 140 and 141 not moved.]

Earl Ferrers moved Amendment No. 141A: Page 63, line 5, leave out ("pursuit or) and insert ("connection with").

The noble Earl said: My Lords, Amendment No. 141A was spoken to with Amendment No. 133A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 142 and 143 not moved.]

Earl Ferrers moved Amendment No. 144: Page 63, line 8, leave out ("this section") and insert ("subsection (1)").

The noble Earl said: My Lords, in moving Amendment No. 144 I shall speak also to Amendments Nos. 146 and 147. Clause 72 gives the commissioners powers in certain circumstances to grant an order to a charity removing the need to obtain individual permits for charitable collections from local authorities. Those are exemption orders.

Anxiety was expressed in Committee that the powers given to the commissioners to revoke such an order or to vary the conditions which might be attached to it were not tempered by a requirement on them to give the charity concerned notice of the reasons for their taking the action in question. It is only right that the commissioners should give reasons for revoking or varying an order and the amendments ensure that they do. However, there does not seem to be a strong argument for such notice to be given where the effect of the variation is, for example, to remove an existing condition. The amendment, therefore, only requires notice to be given where the effect of the variation is to make the conditions in an order more onerous than they were before. I beg to move.

On Question, amendment agreed to.

[Amendment No. 145 not moved.]

Earl Ferrers moved Amendment Nos. 146 and 147: Page 63, line 12, at end insert ("of the Commissioners."). Page 63, line 12, at end insert: ("( ) Where the Commissioners, having made an order under subsection (1) in respect of a charity, make any further order revoking or varying that order, they shall serve on the charity written notice of their reasons for making the further order, unless it appears to them that the interests of the charity would not be prejudiced by the further order.").

The noble Earl said: My Lords, I wish to move Amendments Nos. 146 and 147 en bloc. They were spoken to with Amendment No. 144. I beg to move.

On Question, amendments agreed to.

[Amendment No. 148 not moved.]

Clause 73 [Regulations]:

The Lord Chancellor

My Lords, if Amendment No. 149 is agreed to, it pre-empts Amendment No. 150.

Viscount Astor moved Amendment No. 149: Page 63, line 28, leave out from beginning to ("occupier") in line 34 and insert: ("(c) with respect to the use by collectors of badges and certificates of authority, or badges incorporating such certificates, and to other matters relating to such badges and certificates, including, in particular, provision—

1. (i) prescribing the form of such badges and certificates;
2. (ii) requiring a collector, on request, to permit his badge, or any certificate of authority held by him for the purposes of the collection, to be inspected by a constable or a duly authorised officer of a local authority, or by an").

The noble Viscount said: My Lords, in Committee doubts were raised about whether the regulation-making powers given to the Secretary of State were sufficient to enable him to make provision for the use by collectors of a combined badge and certificate of authority. I indicated then that they were and that therefore there was no need to make specific provision in the Bill. However, in the light of your Lordships' thoughts on the matter I have looked again at it and the amendment is the result. On reflection, in our view it is best that, as regards the wording of Clause 74, we should spell out that badges and certificates can be combined. In the process I have altered the regulation-making powers to make them more general and therefore more comprehensive. I beg to move.

Lord Morris of Castle Morris

My Lords, the debate at Committee stage was very constructive and practical. It has obviously had extremely good results. It is a simple matter of a badge which incorporates a certificate and that is a very sensible proposal. I am very happy that the Government have been able to accept it.

Lord Renton

My Lords, I find Clause 73(2) (c) (i) a little over-zealous in that there should be a regulation to prescribe the form of badges and certificates. In our free society I should have thought that we could tolerate a great deal of flexibility in the form of such badges and certificates. My imagination does not allow me to anticipate the kind of regulation that would have to be made to prescribe the form of such badges and certificates. Therefore, perhaps between now and Third Reading my noble friends will consider whether it is really necessary to include what is tabled in the amendment and what is in the Bill in subsection (2) (c) (i).

Lord Swinfen

My Lords, I am sure that the prescription of the form would mean the wording and the information that would be on the badge and the certificate, not its shape, colour or texture. That is what I gathered was meant, but I may be mistaken in that. I feel that the expiry date should be on the badge and the certificate. That would mean that a person could quickly see whether or not there was fraudulent use of such a badge or certificate by someone continuing after the ending of the collection. It would also save charities the cost of recovering badges and certificates once the collection was over.

Lord Allen of Abbeydale

My Lords, I support the noble Lord, Lord Swinfen, in the last point that he made. The Spastics Society tells me that to collect its money it needs about 350,000 volunteers. If there were an expiry date and the society did not have to go to the expense of recovering certificates, it would save a great deal of money. All we seek to know is that the regulation-making power will be wide enough to cover that possibility and to ask that that possibility is fully considered when the regulations are made.

Viscount Astor

My Lords, the answer to the noble Lord, Lord Allen of Abbeydale, and my noble friend is yes. My amendment makes it clear that regulations will be able to cover the point of the expiry date which is referred to in the next amendment tabled by the noble Lord, Lord Allen. Perhaps I may refer to that amendment, because it could only be moved if I did not move my amendment. We agree with the noble Lord that we thought it unnecessary to put everything on the face of the Bill. This matter is certainly one that will be covered by the regulations.

On Question, amendment agreed to.

[Amendment No. 150 not moved].

Clause 74 [Offences in connection with the conduct of a collection]:

The Lord Chancellor

My Lords, if Amendment No. 151 is agreed to I cannot call Amendment No. 151A.

11.15 p.m.

Viscount Astor moved Amendment No. 151: Page 64, line 8, leave out subsection (3).

The noble Viscount said: My Lords, a number of your Lordships expressed concern during Committee that the offence in this provision was unfair to disabled collectors, heavy handed and somewhat policeman ploddish. I accept that these concerns are justified and I therefore propose that the subsection be deleted. If a constable has doubts about a collector, he can ask to see his badge and certificate of authority to see whether he is an authorised collector. He can also ask the person to give his name and address and if the person fails to give a satisfactory name and address, the constable may exercise the power of arrest conferred under the Police and Criminal Evidence Act 1984 where the general arrest conditions are satisfied. The offence in Clause 74(3) is therefore unnecessary. I hope that the amendment will alleviate the concerns that were expressed in Committee. I beg to move.

Lord Allen of Abbeydale

My Lords, I very much welcome the proposal, and in particular the disappearance of the offence of being unable to sign one's name.

Lord Morris of Castle Morris

My Lords, we are delighted to welcome this government amendment. It rectifies a situation about which many of us were worried in Committee. Our concern focused on a person who might be a useful collector but who for a whole variety of good and sufficient reasons was unable to sign his name. That would have been an offence. Such a person would have been guilty of an offence and would be liable to obtain a criminal record for his inability. Now, he or she will not, and that seems to us to be a notable improvement to the Bill.

Lord Simon of Glaisdale

My Lords, I too welcome this excision of subsection (3). The Bill creates a whole number of unnecessary and undesirable offences. It is extremely welcome to find one being removed and my own amendment thereby being obviated.

On Question, amendment agreed to.

[Amendment No. 151A not moved.]

Clause 75 [Offences by bodies corporate]:

Lord Simon of Glaisdale moved Amendment No. 151B: Page 64, line 29, after ("any") insert ("culpable").

The noble and learned Lord said: My Lords, this is a short amendment. "Culpable" means blameworthy and it seems to me desirable that any neglect whatever should be qualified and should require a degree of blameworthiness in these circumstances. I beg to move.

Baroness Mallalieu

My Lords, on these Benches we support the noble and learned Lord in his amendment.

Lord Renton

My Lords, I wish only to add that we are here creating a criminal offence. Therefore the neglect should be a culpable neglect and not just any kind of neglect.

Earl Ferrers

My Lords, it is with a certain amount of apprehension that I come to answer the noble and learned Lord's amendment. He is in fairly robust form this evening. I hope that he will not seek to wipe me across the floor as he has done, unsuccessfully I might say, with my noble friend Lord Astor. In an earlier amendment the noble and learned Lord gave us fairly good strictures about how the Bill ought to be shorter. He thought that that was a good thing. But here he seeks to make the Bill longer. This clause is a standard form of provision; other examples include Section 12(7) of the Safety of Sports Grounds Act 1975 and Section 36(8) of the Fire Safety and Safety of Places of Sport Act 1987. Those provisions all refer to "neglect" without the addition of the word "culpable".

A corporate body cannot in practice commit an offence except through the agency of some person or persons whose actions or omissions must have led to the commission of the offence. If any officer of the company neglects to do something which leads to the conviction of the company for an offence, then clearly that person is blameworthy.

In this context it is worth noting that the liability imposed by Clause 75 falls on either a company's directors or on a manager, secretary or other similar officer. The expression "similar officer" would not include junior clerks or the tea lady. The point is that the offence by the company must be attributable to a person's neglect, if that person is to be guilty of an offence by virtue of Clause 75. It could only be so attributable if that peron is in a position of authority, so that particular duties fall on him. If he is in such a position and fails to discharge the duties which the law requires the company to comply with, his failure to ensure compliance must constitute a "culpable" neglect. Accordingly I venture to suggest to your Lordships that the additional word proposed by the noble and learned Lord is unnecessary as it is inherent in both Clause 75 and also in other legislation which makes the same provision.

Lord Simon of Glaisdale

My Lords, again, despite the rejection of my amendment, I must express thanks to the noble Lords who have supported me. The noble Earl twitted me with wanting to add a word to the statute. But if he looked through all my amendments he would find that I have moved amendments to leave out 25 words and sought to add but one word. Therefore, that argument really does not get him very far.

The noble Earl then went on to quote precedents. Of course there are precedents. Indeed, last century a poet could confidently say that freedom was broadening down from precedent to precedent. In these bureaucratic days, I fear that we find invasions of freedom broadening down from precedent to precedent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Castle Morris moved Amendment No. 151C: After Clause 76, insert the following new clause:

("Transfer of undertakings

A charitable, benevolent, or philanthropic institution shall be an undertaking in relation to rights and obligations relating to employers and employees on the transfer or merger of undertakings, business or parts of business.").

The noble Lord said: My Lords, I move the amendment on behalf of my noble friend Lord Richard. I should begin by pointing out that the amendment relates to the Transfer of Undertakings (Protection of Employment) Regulations 1981 SI 1981/1794 which is the UK Government's response to the Acquired Rights Directive (Directive No. 77/187/EEC).

The directive applies, to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger".

The term "undertaking" is not defined in the directive, but it would seem that it was intended, together with the terms "business" and "part of a business", to provide a broad scope of application for the directive; in other words, if an organisation is not a business or part of a business, it would presumably be an undertaking.

The word "undertaking" is defined in the 1981 regulations to include, any trade or business but does not include any undertaking or part of an undertaking which is not in the nature of a commercial venture".

That means that the regulations explicitly exclude non-commercial undertakings.

In the area covered by the transfer of undertakings regulations—for example, commercial ventures—the following effects are applied. First, when an employer proposes to transfer his or her business or part of it to another employer, then both employers should consult with the relevant trade unions about the proposed transfer. Secondly, if and when the transfer takes place, the contracts of employment of the employees concerned are transferred automatically from one employee to another. Thirdly, the acquired rights of employees in terms of service-related entitlements—such as, the rights to claim unfair dismissal and redundancy pay—are carried forward from the transferee to the transferee employer. Fourthly, union recognition follows the employees.

None of the above rights applies to the employees of charities and voluntary organisations falling outside the scope of the legislation. At present, there are some 250,000 employees in voluntary organisations. That number is way in excess of the numbers so employed in any other member state. Most, if not all, are excluded from the protection of the transfer of undertakings regulations. In recent years, parts of some charities have been transferred to others, and in a few cases entire charities have merged. The Save the Children Fund has, for example, passed parts of its operations to the National Children's Home, and the Methodist Church has similarly transferred part of its operations to the National Children's Home. Many charities are similar—or very close to each other—such as the National Association of Widows and the Widows Advisory Trust. They may very well seek further rationalisation at some future date.

Surely charity workers deserve the same protection as workers in other spheres. They give a great deal of commitment to their work and often accept much lower pay and conditions to perform tasks that they believe to be in the interests of society and of the clients who rely on the charities concerned.

I apologise for raising a matter of this complexity at this late stage and at this hour of the night. It is a difficult matter but it needs to be addressed by your Lordships' House. I beg to move.

Earl Ferrers

My Lords, I understand the worries of the noble Lord, Lord Morris of Castle Morris, on this matter, but there are two technical reasons why I think that this amendment will not work. First, it would do no more than define a charitable, benevolent or philanthropic institution as an undertaking. It would not in fact define it as a commercial undertaking, which is what it would need to do to be consistent with the 1981 regulations on the transfer of undertakings. It would not therefore have the effect which the noble Lord, Lord Morris, would like. It would not bring charitable, benevolent or philanthropic institutions within the scope of the 1981 regulations.

The second problem is that if the noble Lord wants to include charities within the scope of the 1981 regulations, it would be necessary to amend the regulations themselves. This amendment would not do that.

Any attempt to define all charitable, benevolent or philanthropic institutions as undertakings, as opposed to simply putting them within the scope of the regulations, could well cut across existing case law definitions of what constitutes an undertaking with all the problems that would entail.

This amendment raises new and fairly important issues which we have not had the time to consider before in the context of this Bill. The noble Lord, Lord Morris, will also understand that I have not had as long as one might wish to consider fully all of the implications of what he has proposed as the amendment has been on the Order Paper for only 24 hours.

Given that this amendment raises issues which touch on matters, such as employment law, which lie outside of what we have considered in the context of this Bill up to now, I believe that the issues involved would be better considered elsewhere than in the context of this Bill.

Lord Richard

My Lords, before the Minister sits down, I should like to ask him one question. This is an important issue and, prima facie at any rate, there is no reason why employees of charities should not have the same rights as employees of any other undertaking if and when that undertaking is transferred, acquired, partially taken over or whatever. I should like the Minister to recognise that there is a substantial point that has to be considered carefully. Will the Minister give an undertaking that he will consider it carefully and return with his preliminary thoughts on this matter on Third Reading?

Earl Ferrers

My Lords, I shall certainly consider the matter, but I cannot guarantee to return to it on Third Reading because that is in only one week's time and the complexities of the problem go a good deal wider than I anticipate can be resolved in a week. However, we shall look carefully to ensure that there is no conflict between the regulations and the directive. I shall certainly look into the matter.

11.30 p.m.

Lord Richard

My Lords, having heard what the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 [Regulations and orders]:

Earl Ferrers moved Amendments Nos. 152 and 153: Page 65, line 20, at end insert: ("( ) to an order under section (Relaxation of restrictions on wider-range investments);"). Page 65, line 20, at end insert: ("( ) to any regulations under section (Extension of powers of investment);").

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 154: Page 65, line 21, leave out ("49(3)") and insert ("(Fees and other amounts payable to Commissioners)(3)").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 155: Page 65, line 28, at end insert: ("( ) Before making any regulations under section 20, 22, 23, 64 or 73 the Secretary of State shall consult such persons or bodies of persons as he considers appropriate.").

The noble Viscount said: My Lords, anxiety was expressed in Committee that the Secretary of State should make certain regulations under the Bill only after he has consulted those charities and others who will be directly affected by them in practice. We share those anxieties. We readily undertake to ensure that regulations will be drawn up only after broad consultation. That is the only way to get them right.

The amendment will put the commitment to consultation beyond doubt. It will require the Secretary of State to consult whoever he considers appropriate before making any regulations about charity accounts, including auditing, fund-raising and public charitable collections. I beg to move.

On Question, amendment agreed to.

Clause 79 [Short title, commencement and extent]:

Earl Ferrers moved Amendments Nos. 156 to 158: Page 65, line 41, after ("(4)") insert (", (4A)"). Page 66, line 1, leave out ("extends") and insert ("and this section extend"). Page 66, line 1, at end insert: ("(4A) Sections (Relaxation of restrictions on wider-range investments) and (Extension of powers of investment), and so much of section 77 as relates to those sections, extend to England and Wales and Scotland.").

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 159: Page 66, line 2, leave out from ("6") to end of line 3 and insert: ("and (subject to subsection (6)) the repeals in Schedule 7 have the same extent as the enactments to which they refer and section 78 extends accordingly.").

The noble Earl said: My Lords, I move the amendment on behalf of my noble friend Lord Strathclyde. I shall speak also to Amendment No. 160. These are drafting amendments. They make it clear that Schedules 6 and 7 have the same extent as the enactments to which they refer; that is to say, where the enactments have effect only in England and Wales or Scotland, the amendment or repeals will have effect there. Similarly, amendments or repeals which affect enactments which have effect in Great Britain or the United Kingdom will have a similar effect in those areas. An exception is made for the Police, Factories &c. (Miscellaneous Provisions) Act 1916 which will continue to have effect in Northern Ireland. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 160: Page 66, line 3 at end insert: ("(6) The repeal in Schedule 7 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 does not extend to Northern Ireland.").

On Question, amendment agreed to.

Schedule 1 [Section 20 of the Charities Act 1960, As Amended]:

Earl Ferrers moved Amendment No. 161: Page 67, line 3, at end insert:

("Section 4

The register of charities

4.—(1) The Commissioners shall continue to keep a register of charities, which shall be kept by them in such manner as they think fit.

(2) There shall be entered in the register every charity not excepted by subsection (4) below; and a charity so excepted may be entered in the register at the request of the charity, but (whether or not it was excepted at the time of registration) may at any time, and shall at the request of the charity, be removed from the register.

(2A) The register shall contain—

1. (a) the name of every registered charity; and
2. (b) such other particulars of, and such other information relating to, every such charity as the Commissioners think fit.

(3) Any institution which no longer appears to the Commissioners to be a charity shall be removed from the register, with effect, where the removal is due to any change in its purposes or trusts, from the date of that change; and there shall also be removed from the register any charity which ceases to exist or does not operate.

(4) The following charities are not required to be registered, that is to say,—

1. (a) any charity comprised in the Second Schedule to this Act (in this Act referred to as an "exempt charity");
2. (b) any charity which is excepted by order or regulations;
3. (c) any charity which has neither—
1. (i) any permanent endowment, nor
2. (ii) the use or occupation of any land, and whose income from all sources does not in aggregate amount to more than £1,000 a year;

and no charity is required to be registered in respect of any registered place of worship.

(5) With any application for a charity to be registered there shall be supplied to the Commissioners copies of its trusts (or, if they are not set out in any extant document, particulars of them), and such other documents or information as may be prescribed or as the Commissioners may require for the purpose of the application.

(6) It shall be the duty—

1. (a) of the charity trustees of any charity which is not registered nor excepted from registration to apply for it to be registered, and to supply the documents and information required by subsection (5) above; and
2. (b) of the charity trustees (or last charity trustees) of any institution which is for the time being registered to notify the Commissioners if it ceases to exist, or if there is any change in its trusts, or in the particulars of it entered in the register, and to supply to the Commissioners particulars of any such change and copies of any new trusts or alterations of the trusts.

(7) The register (including the entries cancelled when institutions are removed from the register) shall be open to public inspection at all reasonable times; and copies (or particulars) of the trusts of any registered charity as supplied to the Commissioners under this section shall, so long as it remains on the register, be kept by them and be open to public inspection at all reasonable times, except in so far as regulations otherwise provide.

(7A) Where any information contained in the register is not in documentary form, subsection (7) above shall be construed as requiring the information to be available for public inspection in legible form at all reasonable times.

(7B) If the Commissioners so determine, that subsection shall not apply to any particular information contained in the register and specified in their determination.

(8) Nothing in the foregoing subsections shall require any person to supply the Commissioners with copies of schemes for the administration of a charity made otherwise than by the court, or to notify the Commissioners of any change made with respect to a registered charity by such a scheme, or require a person, if he refers the Commissioners to a document or copy already in the possession of the Commissioners, to supply a further copy of the document; but where by virtue of this subsection a copy of any document need not be supplied to the Commissioners, a copy of it, if it relates to a registered charity, shall be open to inspection under subsection (7) above as if supplied to the Commissioners under this section.

(8A) If he thinks it expedient to do so—

1. (a) in consequence of changes in the value of money, or
2. (b) with a view to extending the scope of the exception provided for by subsection (4) (c) above,

the Secretary of State may by order amend subsection (4) (c) by substituting a different sum for the sum for the time being specified there.

(8B) Any such order shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(9) In this section "registered place of worship" means any land or building falling within section nine of the Places of Worship Registration Act, 1855, as amended by this Act (that is to say, the land and buildings which, if this Act had not been passed, would by virtue of that section as amended by subsequent enactments be partially exempted from the operation of the Charitable Trusts Act, 1853), and for the purposes of this subsection "building" includes part of a building.").

On Question, amendment agreed to.

Schedule 2 [Meaning of "connected person" for purposes of section 32(2)]:

Earl Ferrers moved Amendment No. 162: Page 69, line 42, at end insert: ("( ) a person who is the donor of any land to the charity (whether the gift was made on or after the establishment of the charity);").

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 163 to 165. The amendments owe much to the foresight of the noble Lord, Lord Nathan.

Schedule 2 to the Bill contains a list of persons who are to be regarded as "connected persons" for the purposes of Clause 32 (2). A "connected person" is a person or an institution to whom the trustees of a charity may not dispose of charity land without first obtaining the consent of the commissioners. The purpose of requiring the commissioners' consent to dispositions of land in those circumstances is to prevent trustees disposing of property to a close associate for less than its true value with a view to profiting personally thereafter.

A person who has donated land to a charity is not at present a "connected person". The amendments will make a donor and a close relative of a donor a "connected person". Where a person has donated land to a charity either at the time the charity was established or later, the trustees of that charity will not be able to dispose of any of that charity's land to the donor without first obtaining the commissioners' consent. Some people may find it convenient for tax avoidance reasons to give a property to a charity or to settle it on new charitable trusts, then lease it back for their own personal use at a ludicrously small rent. The charity is thus deprived of the true value of the property. This would be much easier to achieve were the commissioners not involved in approving the transaction. These amendments will require the commissioners' involvement and consent, and arrangements of the sort I have just described will be thwarted.

Perhaps I may mention one other point. In looking again at the relevant provisions of Clause 32(2) and Schedule 2, I now realise that the provisions relating to "connected persons" should also cover someone who is a trustee for or nominee of a connected person. I shall come forward with proposals to stop this loophole at the next stage of the Bill, together with any necessary consequential drafting changes in Schedule 2. I beg to move.

Lord Morris of Castle Morris

My Lords, we are grateful to the noble Lord, Lord Nathan, for his foresight. The intention of these three amendments is clear. They seem helpful to the purposes of the Bill and we support them.

Lord Allen of Abbeydale

My Lords, I wish to say on behalf of my noble friend Lord Nathan how grateful he is for the amendments.

On Question, amendment agreed to.

[Amendments Nos. 163 and 164 not moved.]

Earl Ferrers moved Amendment No. 165: Page 69, line 44, after ("trustee") insert ("or donor").

On Question, amendment agreed to.

Schedule 4 [Amendments of Charitable Trustees Incorporation Act 1872]:

[Amendments Nos. 166 and 167 not moved.]

Schedule 6 [Minor and consequential amendments]:

Earl Ferrers moved Amendment No. 168: Page 82, line 17, at end insert:

("Civic Government (Scotland) Act 1982 (c. 45)

. In section 119(6) (d) (grounds for refusal of permission for public charitable collection in Scotland)—

1. (a) after "under", where secondly occurring, insert "this section or"; and
2. (b) after "section", where secondly occurring, insert "or under Part III of the Charities Act 1992 or regulations made under section 73 of that Act".").

The noble Earl said: My Lords, on behalf of my noble friend, I beg to move Amendment No. 168. This is a minor drafting amendment to Section 119(6) (d) of the Civic Government (Scotland) Act 1982.

Lord Renton

My Lords, as this is the last amendment tonight, I hope I may not be considered out of order if I make a plea to my noble friend on the Front Bench with regard to the tabling of amendments for Third Reading. I understand that it is agreed between the usual channels that the Third Reading should take place next Tuesday, 25th February. The Government have been so good as to say that they will consider some of the matters raised at Report stage this evening. It would be helpful if all the government amendments could be tabled by Friday morning so that our own amendments which are bound to be starred can appear on the Marshalled List on Monday. Otherwise, we may not have time to prepare them.

Lord Morris of Castle Morris

My Lords, perhaps I may say something about the amendment before us. It would be as curmudgeonly of me to oppose or question any proposal in the amendment as it would be otiose for me to say anything whatever about it.

Earl Ferrers

My Lords, I am not sure where that leaves us. In reply to my noble friend Lord Renton, I believe he will realise that we have only just completed the Report stage. I quite see that it would be convenient to him if we were able to put our amendments down for the Third Reading tomorrow morning. However, we are only human beings and we must have time to consider the matters which have been raised. I can only assure him that we shall put the amendments down as soon as we can, but I could not give an undertaking on exactly when.

Lord Renton

My Lords, I did not suggest tomorrow morning to my noble friend. I said Friday morning.

Earl Ferrers

My Lords, I realise that. I am one ahead of my noble friend in suggesting that it would be even more convenient to him if the amendments were put down tomorrow morning. I shall see that they are put down as quickly as possible. I cannot give a better undertaking than that.

On Question, amendment agreed to.

House adjourned at twenty-one minutes before midnight.