My Lords, I stand with some trepidation to debate with the noble and learned Lord, Lord Hope, on this matter. Mention has been made of my right honourable friend the Justice Secretary and his remarks yesterday. I have been very careful in this debate not to use “impact” as a verb. I am also very intrigued by this area. This debate over the word “privy” makes me wonder whether it needs to be modernised in terms of the Privy Council, but I do not want to get into that right now.
It strikes me that what we are debating is what the layman understands versus what is legally accurate and watertight. The Joint Committee that considered the draft Bill, chaired by the noble and learned Lord, recommended, as the noble and learned Lord just said, that the term “privy to” be removed and replaced with “aware of”, so that the Bill referred to a person who was aware of an action that constituted misconduct.
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As has been said, there were real concerns about the lack of clarity. There has been careful consideration, and it was decided to retain the current reference to “privy to”. I shall explain why. Our research suggested that “privy to” and “aware of” may not amount to the same thing. “Privy to” can comprise more than mere knowledge and include an element of knowing concurrence or agreement as well, as the noble and learned Lord referred to. We did not think it appropriate to amend the Bill in a way that might impose a lower threshold for intervention by the Charity Commission.
The amendment tabled by the noble and learned Lord proposes to replace “privy to” with “participated in”. On the face of it, this looks as though it might be a higher threshold for intervention, because clearly “participated in” would appear to require some sort of positive action beyond agreement or knowing concurrence. We would be reluctant to raise the threshold in the light of that. I recognise the need for clear language in legislation that leaves no doubt as to its effects, so I would be happy to give some further consideration to whether there is an alternative formulation to “privy to” that maintains the threshold for intervention at the same level.
As I have said, we would need to have particular regard to how an alternative formulation would work with the rest of clause, which currently refers to conduct that,
“contributed to or facilitated the misconduct or mismanagement”.
Furthermore, the term “privy to”, as I am sure the Committee knows, is already used in Section 79 of the 2011 Act in relation to trustee removal and Section 178 of that Act in relation to trustee disqualification. Any alternative formulation would need to work in the context of those provisions as well. On that basis, I invite the noble and learned Lord to withdraw his amendment.