Charities Bill [HL]

moved Amendment No. 46:"Page 85, line 29, leave out from beginning to end of line 11 of page 86 and insert—" ““1   (1)   Except in the case of a reviewable matter as set out in paragraph 3, an appeal may be brought to the Tribunal against any decision, direction or order made or given by the Commission under this Act (including any decision not to give a direction, make an order or otherwise act under this Act). (2)   Such an appeal may be brought by— (a)   the Attorney General; (b)   any person from the following— (i)   the persons who are or claim to be the charity trustees of the institution or who otherwise have control or management of the institution, (ii)   (if a body corporate) the institution itself, and (iii)   any other person who is or may be affected by the decision, direction or order (as the case may be). (3)   In determining such an appeal the Tribunal— (a)   shall consider afresh the decision, direction or order appealed against, and (b)   may take into account evidence which was not available to the Commission. (4)   The Tribunal may— (a)   dismiss the appeal, or (b)   if it allows the appeal, exercise any of the following powers— (i)   quash the decision, direction or order (as the case may be) in whole or in part, and (if appropriate) remit the matter to the Commission, (ii)   substitute for all or part of the decision, direction or order (as the case may be) such other decision, direction or order as could have been made or given by the Commission, (iii)   give such direction to the Commission as it shall consider appropriate, (iv)   substitute for all or part of any direction or order any other direction or order which could have been made by the Commission, (v)   add to the decision, direction, or order (as the case may be) anything which could have been contained in the original decision, direction or order.”” The noble Lord said: My Lords, I am sorry that we have to return to another slightly old chestnut, but this is the relevance of the extremely extensive list given in Schedule 4. Noble Lords will remember that this is a long—six pages, in fact—list of what may form the basis of an appeal to what is now called the Charity Tribunal. When we were last in Committee on 28 June, I argued that an attempt to provide an exhaustive (not to say exhausting) list of what could form the basis of an appeal was bound to end in failure; gaps were bound to appear. I gave two such examples that had already been brought to my attention. I went on to argue that surely it was better, and simpler, to say that anything was appealable. The Minister argued that it was better to ask people to wade through six pages of densely packed prose, which listed all of the events that were appealable, to see if their case fitted the Bill. I am sorry to disappoint him and say that I cannot see the logic of that approach. The Minister went on to argue that, in any case, the Bill, as presently drafted, gave the power for events, which it later became apparent should properly be appealable, to be added to the schedule in the future. That, in my view, is a clear case of locking stable doors after horses have bolted. It is a shame to set out with a particular weakness in mind. As I said, I gave two examples, which I considered should be appealable but which were not in the list in Schedule 4 as presently drafted. The Minister, with his infinite politeness, rejected them both. But I would ask him to reconsider the Government’s overall position and the approach that they have adopted. My first example was Section 29 of the 1993 Act which is about power to give advice and guidance. The Minister argued that,"““it is not appropriate to appeal to tribunal. The commission would give authority, if appropriate, for directions to be given by the court””.—[Official Report, 28/6/05; col. 228.]" On reflection, I accept the force of that argument. However, my further thought relates to the Minister’s words,"““directions to be given by the court””." I thought that that was exactly what the Bill strategically was trying to avoid—to reduce the dependence of the charitable sector on the elaborate, time-consuming, adversarial and expensive legal system. My other example has stood the test of time rather better. Section 33 of the 1993 Act concerns the taking of charity proceedings. A refusal to undertake such proceedings, apparently, is not appealable, according to the list given in Schedule 4. Again, the Minister replied that this matter,"““is already, in any event, subject to review by the court””.—[Official Report, 28/6/05; col. 228.]" Why does he seek to drag the legal system back into charity administration, when the Government’s approach all along has been to try to keep it out? If his argument tonight is to be that a review by the court will take no longer than a review by the tribunal, that gives me some serious doubts about the fundamental purpose of that latter body. We are expecting it to act faster and to react in a way in which the courts are unable. To date we have one and a half gaps in the schedule and the Bill is yet to reach the statute book. What will tomorrow bring? On the previous occasion when we discussed this, the noble Lord, Lord Phillips, in kindly supporting the amendment—tonight he may have changed his mind—said that the Government’s approach was ““counter intuitive””. That is a splendid phrase, on which, as often happens with what the noble Lord says, I cannot improve. I beg to move.