Charities Bill [HL]

moved Amendment No. 41: After Clause 8, insert the following new clause— ““CHAPTER 2A THE CHARITY INDEPENDENT COMPLAINTS REVIEWER    THE CHARITY INDEPENDENT COMPLAINTS REVIEWER    After section 2 of the 1993 Act insert— ““THE CHARITY INDEPENDENT COMPLAINTS REVIEWER 2A   THE CHARITY INDEPENDENT COMPLAINTS REVIEWER (1)   There shall be a complaints reviewer to be known as the Charity Independent Complaints Reviewer (in this Act referred to as ““the Reviewer””). (2)   The function of the Reviewer will be to investigate— (a)   complaints of maladministration and of failure in quality of service by the Charity Commission, and (b)   complaints of unfair, unreasonable or disproportionate behaviour by the Charity Commission. (3)   The Reviewer shall be appointed by the Secretary of State. (4)   A complaint may be made to the Reviewer by or on behalf of any charity, charity trustee or other person or body who is or may be affected by the actions or decisions of the Charity Commission and there shall be no requirement that a complainant must use the courts or Charity Commission’s own complaints procedures first. (5)   The Reviewer will not have authority to investigate and adjudicate— (a)   complaints about the substance of legal decisions made by the Commission, although complaints about the way in which those decisions were made will be within the Reviewer’s remit, (b)   complaints by Commission employees concerning their employment or by applicants for employment about recruitment procedures, (c)   complaints where legal proceedings directly relating to the substance of the complaint have been initiated, (d)   complaints relating to matters which are under current investigation by the police or taxation authorities, and (e)   complaints under current investigation or which have earlier been the subject of a report by the Ombudsman, but complaints which the Ombudsman has refused to consider may be reviewed. (6)   The Commission shall co-operate with the Reviewer by permitting the Reviewer— (a)   to inspect and take copies of all documents (including documents in electronic form) held by the Commission which the Reviewer considers relevant to the complaint, and (b)   to interview employees or agents of the Commission. (7)   The charity, the charity trustees and any receiver and manager appointed for the Charity shall also co-operate with the Reviewer by permitting the Reviewer— (a)   to inspect and take copies of all documents (including documents in electronic form) held by it, him or them which the Reviewer considers relevant to the complaint, (b)   to interview the charity trustees, the receiver and manager, their employees and agents and the employees and agents of the charity. (8)   The Reviewer may— (a)   send or not send any draft report to the Commission and the complainant but shall not send it to only one of them, (b)   dismiss a complaint, (c)   make a finding that the complainant has acted frivolously, vexatiously or unreasonably, (d)   require a complainant against whom such a finding has been made to pay the whole or part of the costs of the investigation, (e)   make recommendations to the Commission regarding the manner in which it discharges its functions, or (f)   make a finding of maladministration against the Commission. (9)   In cases where the Reviewer has made a finding of maladministration against the Commission, he may— (a)   require the Commission to apologise to the complainant, and/or (b)   make an award of compensation against the Commission, or (c)   make no award. (10)   The Reviewer shall report annually in writing to the Secretary of State and may publish reports on individual cases unless he considers that there are good reasons not to do so. (11)   The expenses of the Reviewer will be paid from moneys provided by the Parliament.”””” The noble Lord said: My Lords, the purpose of this amendment is to set on a statutory footing the existing Independent Complaints Reviewer who at present is appointed by the Charity Commission, with the following significant alterations to the current arrangements: first, to give the reviewer the power to award compensation for financial loss arising from Charity Commission conduct in addition to small, consolatory payments for maladministration on the part of the commission; and secondly, to minimise delay in accessing the reviewer by not requiring that the complainant use the Charity Commission’s internal complaints procedure first. Together, these changes should bring about a genuinely independent statutory alternative dispute resolution procedure and provide a more rapid resolution of problems arising from complaints about the commission maladministration that is likely to be available through complaints to the parliamentary ombudsman and the High Court, although these two routes will remain available to complainants, as at present. This amendment would create a truly independent mechanism for charities, trustees and others to challenge the Charity Commission when it is apparently guilty of maladministration or acting unfairly, unreasonably and disproportionately, and to obtain financial compensation for maladministration and financial loss. The Government have previously shown themselves unwilling to allow that role for the new tribunal and have turned their back on arbitration. In my submission in support of a similar amendment in Committee on 28 June, I made the following points, as reported at col. 217 of the report of our proceedings. The first was that, at present, the Independent Complaints Reviewer is a creature of the commission, whose findings and recommendations it can ignore if it so chooses. The second was that the Independent Complaints Reviewer cannot recommend payments for compensation where a charity has suffered real financial loss as a result of the commission’s conduct, beyond small consolatory payments. My third point was that access to the ombudsman is restricted to cases submitted by a Member of Parliament, and the ombudsman routinely refuses to investigate cases where there is a possibility of High Court redress. High Court appeals are ruinously expensive for charities and trustees, which have no recourse to legal aid and commonly find themselves up against the Attorney-General and the Treasury solicitor—who has the total backing of the Treasury behind it—which acts for the Charity Commission. Appeals to the High Court require either a certificate from the commission to bring proceedings, or an application to the High Court to bring such proceedings, if the commission refuses its certificate. Do such arrangements make for easy access to justice? I doubt it. In answer to my amendment in Committee, the Minister drew a comparison between access to the ombudsman and access to the Independent Complaints Reviewer. He concluded that, on the whole, the ombudsman route was advantageous. I do not doubt that it is, but it is not readily available to charities in practice. In the same debate, the noble Lord, Lord Phillips, said that,"““the present arrangements are highly defective, especially with the Parliamentary Ombudsman’s inability to intervene unless High Court remedies have been exhausted””.—[Official Report, 28/6/05; col. 221.]" In summarising his argument, the Minister said that the present arrangements worked well—perhaps he meant that they worked well for the Charity Commission. When challenged on the issue by the noble Lord, Lord Phillips, the Minister speculated that a statutory independent complaints reviewer might also want to wait, like the ombudsman, until all legal processes were exhausted first. I see no reason why an ICR might behave in that way, but I have made it my earlier proposal to prevent that. I beg to move.