Charities Bill [HL]

moved Amendment No. 7: Page 3, line 40, at end insert— ““(   )   In carrying out consultation under subsection (4), the Commission shall, inter alia, consider the effect on public benefit of the charging policy of any charity.”” The noble Lord said: My Lords, I hesitate to bring this amendment back again. I do so because I believe it is very important. I promise that, although I need to speak at some length on this, I shall curtail my contributions henceforward. But there are Members present today who were not present on 9 February or 28 June when we last discussed the amendment. It is therefore necessary to run through the reasons why I put the amendment forward and the justification for it. The noble Lord, Lord Best, and the noble Baroness, Lady Pitkeathley, added their names to the amendment previously, but, given the holiday we have so recently finished, it was not possible to organise their addition to it today, but they still support the amendment. The point is that public benefit reform is at the heart of the Bill. I suppose that one could say that with the charity tribunal it is the most important reform—one is the reform of law, public interest, and the other is a reform of mechanics, the tribunal. They are both hugely important. I have persisted with this amendment in the face of what I must call ““government prevarication”” because I think that it is essential to make good sense and good purpose of their own trumpeted reform; namely, that of public benefit. I would add, if it needs adding, that the National Council for Voluntary Organisations, as part of a consortium, has also persistently and to this moment supported a reform on the lines I am suggesting. If there is to be meaningful advance and change in relation to public benefit then we need something of this sort. The problem is that the existing common law in relation to public benefit is so confused and sparse. That was vividly demonstrated before the joint scrutiny committee when the Home Office differed markedly from the Charity Commission in what it thought the present law was. The chairman of our committee was fairly fierce about that and told them to go away and to get their acts together. They came up with a joint statement. That joint statement hung its hat, so to speak, on the case of Re: Resch. I hate to get into specific cases but I am afraid that public benefit under common law as it stands—as this Bill would be dependent upon—rests on the shoulders of that case of Re: Resch, which was a 1967 Privy Council case. Noble Lords will know that Privy Counsellors are made up of the House of Lords judicial bench. The case came to it from Australia and concerned a private hospital. I shall try briefly to demonstrate why the case of Re: Resch is, as I call it, a judicial blancmange and why the amendment is necessary. The sole judgment for the whole court was given by Lord Wilberforce. First, he said:"““It would be a wrong conclusion . . . to state that a trust for the provision of medical facilities””—" and it could be a trust for any charitable purpose—"““would necessarily fail to be charitable merely because by reason of expense they could only be made use of by persons of some means””." So that is quite clear. On that basis, a school which is very expensive and can be accessed only by people of some means is not by reason of that not to be charitable. He went on in another section to say:"““The general benefit to the community [at large] of such facilities””—" and that was a case, do not forget, of a private hospital run by nuns which was adjacent to a public hospital run by the same nuns—"““results from the relief to the beds and the medical staff of the general hospital, the availability of a particular type of nursing and treatment which supplements that provided by the general hospital and the benefit to the standard of medical care in the general hospital which arises from the juxtaposition of the two institutions””." So the general hospital was plainly charitable and the private hospital charged high fees next door. The judge was saying that the benefit to the community, the public benefit in this circumstance, was sufficiently present because the private hospital, as he put it, relieved beds and medical staff in the general hospital; that is, it took the pressure off. Secondly, he said that the interchange of staff was of benefit to both.”” Again, if one takes the case of an extremely antediluvian public school—one which has no interest in public benefit as we conceive it; no interest in extending its facilities to the state school system; no interest in sharing teachers, or anything else—it can say on the benefit of Re: Resch., ““It is quite enough old boy, because we are taking pressure off the local comprehensive, saving you trouble””. In the case of the antediluvian school, it cannot even say, as was said here, that there is of course the interchange of teachers between the two institutions, which is of benefit to both. The third excerpt that I will read is this. The judge said, ““Another reason”” for setting up the private hospital alongside the public one,"““was that there were many persons who needed hospital nursing and attention who were not willing to enter a public hospital but were willing and desirous of having hospital accommodation with more privacy and comfort than would be possible in the general hospital.””" Again, that is what would be said of many public school parents. They are certainly not willing to send little Johnny to the local comprehensive, but by Jove they are ready to send them to the independent school where, to use the language of Lord Wilberforce, it would not be accommodation and facilities that were better, but it would be the facilities and class sizes. If we leave this Bill on the basis of the decision in Re: Resch. we are not implementing the Government’s own stated intentions for this Bill and the intentions with which we, on this side of the House, firmly agree. In case noble Lords think that I am being partisan—I am sorry that the noble Lord, Lord Forsyth of Drumlean, has left the Chamber, because he made the point—I do not make this point in a partisan spirit at all. Indeed, I take the witnesses who came before the joint scrutiny committee at their word. We had evidence from the High Master of Manchester Grammar School and from Jonathan Shepherd, the general secretary of the Independent Schools Council. Both said, again and again and quite adamantly, that the independent school sector wishes to provide public benefit, is seeking to find ways of working with state schools, is making facilities available, and so on. Their thesis was that independent schools have changed, are changing and want to change and want to provide public benefit. I do not for a minute accept that this amendment is remotely partisan—it should be supported by the vast bulk of the independent schools which are of this mind and which want public benefit to be available to the public at large, beyond the small circle of their own paying pupils. I am content to rest my case on that basis. There is need for some bracing and some degree of certainty about what we mean in relation to public benefit. Somebody has said—I will not name names—that this amendment upsets the delicate balance. I would call what we have at the moment an indelicate fudge. If this Bill gets to the Commons without my very modest amendment in they will make mincemeat of it because there are gentlemen down the other end who are a great deal more partisan than I would ever dream of being. So I hope that this amendment will commend itself to the Government, even at this late stage, and to the House at large. I beg to move.