As amended in the Standing Committee, considered.
New Clause 1
Amendments reflecting changes in company law audit provisions
‘(1) The Minister may by order make such amendments of the 1993 Act or this Act as he considers appropriate—
(a) in consequence of, or in connection with, any changes made or to be made by any enactment to the provisions of company law relating to the accounts of charitable companies or to the auditing of, or preparation of reports in respect of, such accounts;
(b) for the purposes of, or in connection with, applying provisions of Schedule 5A to the 1993 Act (group accounts) to charitable companies that are not required to produce group accounts under company law.
(2) In this section—
“accounts” includes group accounts;
“amendments” includes repeals and modifications;
“charitable companies” means companies which are charities;
“company law” means the enactments relating to companies.’.—[Edward Miliband.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
As well as moving new clause 1, proposed by my right hon. Friend the Chancellor of the Duchy of Lancaster, I shall speak to Government amendments Nos. 28 to 30, 61, 65 and 69.
The new clause deals with the accounts scrutiny regime for charitable companies—that is, charities established in the legal form of a company. One consequence is that smaller charitable companies are subject to a regime whose requirements are designed for small businesses, not small charities. In the debate on the Companies Bill in the other place, Lord Hodgson tabled Opposition amendments to take small charitable companies out of the company law regime for accounts scrutiny, placing them instead within the charity law regime. The Government accepted the merit of that idea, took representations from a number of umbrella bodies for charities and professional accountancy bodies and received a favourable response, so we agreed to proceed with the idea.
At its heart is the sensible proposition that we should treat charitable companies primarily as charities, albeit ones that happen to be set up in company form, rather than primarily as companies that happen to have charitable status. To give effect to that, changes are needed to the Companies Bill and the Charities Bill. The necessary Companies Bill amendments were made on Report last week and the principal amendment to the Charities Bill is set out in new clause 1.
The new clause contains a new order-making power, allowing Ministers to amend the Charities Act 1993 and the Bill to reflect changes in company law—the changes that will be made by the Companies Bill when it comes into force. The result will be that we can apply the same accounts scrutiny requirements—professional audit for those with an income above £500,000, independent examination for those between £10,000 and £500,000 and no compulsory scrutiny for those below £10,000—to all charities, regardless of their legal form. The order-making power will also allow the group accounting requirements to be changed so that, in preparation of group accounts, a group of charities headed by a charitable company is put in the same position as a group headed by any other form of charity.
I believe that I am right in saying that about 15 per cent. of the UK’s 190,000 charities are in that category, so it amounts to a significant number.
I was about to say that because the order-making power will allow Ministers to amend primary legislation, the order will be subject to the affirmative resolution procedure, and amendment No. 61 achieves that.
Amendment No. 65 is designed to ensure that the power to make consequential amendments under clause 75 can be used to amend the Companies Bill, when it is enacted, in line with amendments that the Bill makes to the Companies Act 1985.
Amendment No. 30 is the other substantive amendment in the group. It amends new section 73E, inserted by clause 38 into the Charities Act 1993, and arises from the diligence of the hon. Member for Isle of Wight (Mr. Turner)—and not for the first time, either. It is designed to give the court the power to grant relief to the trustees of a charitable incorporated organisation. Section 61 of the Trustee Act 1925 gives the court a power to grant relief to trustees, but the charity trustees of a CIO are not trustees within section 61 of that Act, mainly because the CIO is a new institution. Section 727 of the Companies Act 1985 gives the court the power to grant relief to the officers of a company, but that, too, does not at present apply in the case of a CIO. The amendment therefore provides for section 727 of the Companies Act to have effect in relation to the charity trustees of a CIO.
In Committee I promised the hon. Member for Isle of Wight that I would propose an amendment in response to his previous amendment that identified the gap I have just described. I am grateful to him for identifying it.
Amendments Nos. 28, 29 and 69 are minor consequential amendments to new clause 1 and amendment No. 30.
It is a pleasure to follow the Minister and to thank him for his generous words about the contribution that my noble Friend Lord Hodgson and I made to the development of the new clause and one of the Government amendments.
The Minister has confirmed that the procedure under new clause 1 is subject to the affirmative resolution procedure, which is appropriate and we welcome it. We support the extension of the new provision covered by amendment No. 28 to charities that are companies, and I welcome the movement to afford protection to the trustees of new charitable incorporated organisations.
I shall not detain the House further on this group.
I, too, thank the Minister for his opening remarks. One of the best aspects of the Bill is that it has somewhat alleviated the onerous nature of company law, especially for smaller charities but also for others who might want to pursue a different path. The amendments are designed to further the spirit of reconciliation between new organisational statuses, such as that of charitable incorporated organisations, and existing company and charity law.
In that spirit, I, too, am happy to support the new clause.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 3
Property from trusts in residuary legacies
‘After section 36(3) of the Charities Act 1993 (c. 10) insert—
“(3A) Subsection (3) above shall not apply to any such land that is left in a will to a charity.
(3B) Subsection (3A) above shall not preclude charity trustees commissioning a report in accordance with subsection (3) if they so wish.”.’.—[Martin Horwood.]
Brought up, and read the First time.
New clause 3 addresses a problem that has, I think, arisen by accident. Before the Charities Acts of 1992 and 1993, section 29 of the Charities Act 1960 provided that no land held by or in trust for a charity that—this is an important phrase—had been occupied for the purposes of the charity could be sold, leased for more than 22 years, mortgaged or charged to security without the consent of the court or the Charity Commission.
Section 32 of the 1992 Act superseded the 1960 Act and imposed an overall prohibition of disposal of any land held by, or in trust, for a charity without an order from the court or the Charity Commission. That section was repealed and re-enacted without alteration as section 36 of the 1993 Act, which is the crucial provision that we are addressing.
The effect of the rather rushed 1993 legislation was inadvertently to catch a category of land held in trust for charities, left in wills as a charitable bequest, which had not been included before 1992, because the original Act covered only land held in trust that had been occupied for the purposes of the charity. The section 36 requirements were perfectly reasonable for the normal disposal of land by charities, which had to acquire a proper valuation and go through various procedures set out in the section. However, by applying such procedures to land left in legacies, the 1993 Act inadvertently gave charities a new and serious burden.
I shall give the Minister a few examples. Macmillan Cancer Support derives about 33 per cent. of its total income from legacies. It says:
“We spend, as best we can calculate it, some £14,500 a year on section 36 reports. This includes not only the surveyor’s fee (and VAT which we cannot reclaim) but also the costs of staff in considering, processing the information, passing it to Trustees for approval, all communication with estate solicitors and co-beneficiaries and ancillary costs such as postage and photocopying…There is without doubt an adverse effect on the charity overall. The majority of the reports simply confirm what the estate Executor has already informed us about the property’s broad state and value, which will usually include, for instance, an offer higher than probate value, or the possibility of development. In a small number of estates, the s36 valuation does show a higher value than the estate administrator has believed appropriate; however, it is not always the case that the market then offers the higher price.”
It calculates that
“the time spent in considering, processing and forwarding the reports represents nearly four weeks of a person’s time each year, for almost no benefit”.
Macmillan makes the important point that the fiduciary duty on executors would protect assets held in trust for the charity by the executor. It states:
“We feel that little additional protection is given to the Charity’s trustees beyond that which already exists by virtue of the Executor’s duty to maximise assets.”
Macmillan is quite a large charity, but the provision affects smaller charities, too, for which it might be even more onerous. A letter from Battersea Dogs Home, which is at the lower end of the larger charity scale, states:
“Section 36 has proved to be incredibly confusing and costly to the charity…Unfortunately, I do not have exact figures of how many s36 reports we request per year but approximately 20… £10,000 of charity money on reports is a lot of money, which could easily be applied elsewhere to help our cause.”
At the upper end of the scale, the largest charity of all—Cancer Research UK—estimates that it has spent more than £80,000 on section 36 reports in the past year and tells me:
“Release of capital from estates can be prolonged due to irregular meetings of trustees and administrative hold-ups.”
One of the procedures that are particularly onerous for larger charities is that the section 36 reports have to be presented to the charity’s trustees and approved by them. That is all very well for an occasional disposal of land, but larger charities frequently have to deal with land left to them in legacies, or held in trust in legacies. Large charities such as Cancer Research UK depend greatly on legacies, so the provisions are a burden on the trustees as well as on the charity’s staff.
All in all, that adds up to a serious problem, about which we have previously advised the Minister, so I shall be interested to hear his comments. If he can provide a suitably robust form of words I shall be reassured, but this is a matter of law and unless the Bill is amended it is difficult to imagine how the problem can be tackled.
I am grateful to the hon. Member for Cheltenham (Martin Horwood) for raising this important issue. The letters from various charities that he read out were quite compelling and I hope that I can help to offer a way forward. I shall also address our amendment No. 35.
As the hon. Gentleman said, the purpose of new clause 3 is to change the regime under which trustees may sell land belonging to a charity, where the land has been given to it through a bequest made under a will. One normal feature of that regime is that the charity trustees must obtain a surveyor’s report about the proposed sale. I have seen a letter from the Society of Trust and Estate Practitioners—STEP. I suspect the organisation has also written to other Front Benchers. The letter raises a number of concerns, which I have discussed with the Charity Commission. It seems pretty clear that the question is not, as the hon. Gentleman suggests, one of law but more of perception or administration—either the perception of the charities or the administration of the commission, as I shall explain when I have set out the legal position.
The concern seems to be that, at present, separate reports have to be obtained in some cases where land is given to a charity in a will. One report has to be obtained by the personal representatives of the donor—that is, of the estate—and another by the trustees of the beneficiary charity or charities, resulting in unnecessary expense for the charity. I have talked to the Charity Commission about that concern at some length. In its view, the legal position is that there is never any need for double compliance with the regime.
If the estate’s personal representatives sell the land in the course of their administration of the donor’s estate, the charity land disposal regime does not apply. If the administration of the estate has been completed and the land belongs to the charity, the personal representatives can sell it only as agents of the charity, or as its trustees. The charity trustees must comply with the charity land disposal regime, but their personal representatives need not. I hope that that makes clear the legal position on double compliance.
STEP says in its letter—the point was repeated by the hon. Gentleman—that the situation is particularly difficult for legacy-receiving charities with non-executive trustees, because a surveyor’s report and a certification of compliance with the procedures must be obtained by the charity trustee personally. I checked with the Charity Commission on that point, and found that a whole range of powers given to trustees can be delegated to members of staff; the section 36 power is one of them. There is no need for the trustees personally to give approval—that was one of the concerns raised by STEP. I have made the position on double compliance clear, but to enhance understanding on all sides I have agreed with the Charity Commission that it will listen to representations about the practical implementation of the law on the subject, so that we can clear up any misperceptions or administrative problems.
If the intention behind the amendment was the removal of the need for anyone to follow the normal requirements of the charity land disposal regime when selling land left to a charity as a legacy, there would be no justification for it. In other words, charity trustees should not be exempt simply because land has been given to them in a will. The regime is sensible, and it clearly encourages the trustees to carry out their duties properly and effectively; in addition, it ensures that, if charity land is sold, a proper price is obtained, so it is a necessary protection for charities and their beneficiaries. Having said that, the necessary content of the surveyor’s report is set out in regulations that are nearly 15 years old, so there is a question of administration, too. I said in Committee that the Government have undertaken to review those regulations, with a view to simplifying them, thereby reducing the costs of surveyors’ reports.
Finally, although we note the intentions behind the hon. Gentleman’s amendment, as he set them out, I am advised that its wording will have quite a different effect. If charity trustees have followed the requirements set out in section 36(3) of the Charities Act 1993, they need not seek the authority of the commission for the sale. I know that this is not his intention, but if we removed the possibility of complying with those requirements, trustees selling land that they received in a will would always have to seek the authority of the commission. In practice, that would involve complying once again with a bureaucratic requirement.
I am a little unclear about what the Parliamentary Secretary is saying. He seems to say that the charity’s trustees would not have to obtain a valuation when they inherit property that they sell straight away. However, clearly, there must be a cut-off point between inherited property that is sold straight away, and inherited property that is sold at a later stage, and I am not sure what that cut-off point is.
I am saying two things. First, as I understand it, the concern raised by charities, and in STEP’s letter, is that there is a double compliance problem. Their concern is that, after the representatives of an estate have completed the whole process of obtaining an evaluation and so on, the charity must go through the same process. That is duplication. I am assured by the Charity Commission that there was never any need for double compliance—that is a matter of law.
Secondly, to respond directly to the hon. Gentleman’s intervention, it is right that there should be the necessary protections ensuring that, when a charity gets a bequest, it seeks a valuation of the land, so that it can act in the best interests of its beneficiaries. However, one of the concerns raised is that the sale of the land will require the personal approval of charity trustees. That is a particular problem if they are non-executives who are abroad. I reassure the hon. Gentleman that, as with many other functions of a charity, that function can be delegated to members of the charity’s staff.
I am grateful for the Minister’s comments, but they are surprising, given the overwhelming body of legal advice that all the major charities that I mentioned have been receiving for more than a decade. The misunderstanding—if it is that—about the involvement of the trustees is understandable, given what is said in part V of the Charities Act 1993:
“Except where the proposed disposition is the granting of such a lease as is mentioned in subsection (5) below, the charity trustees must, before entering into an agreement for the sale…obtain and consider a written report”.
I can understand why charities believe that it is the trustees who must approve the reports.
On the first point about the legal position, clearly I have infinite capacity to surprise the hon. Gentleman. I am assured that the position is as I said. On the point about trustees, my understanding—I am told this reliably—is that the authorisation can be delegated to members of staff. If I find that that is not the case, for some reason, I will obviously correct it, but that is my strong understanding.
The overall point is that we are discussing a complex area of law. The Charity Commission is clear that double compliance, which is the primary problem that has been raised, is not necessary. The letters read out by the hon. Gentleman, and the letter from STEP, convince me that a lot more work needs to be done on sorting out the perception of the law, and quite possibly its administration by the commission. I have proposed that the commission should undertake such a process, and it has agreed to do so. On that basis, I hope that the hon. Gentleman will withdraw his amendment.
I am grateful to the Minister for his comments, but, as I said, I find them surprising. The people who are concerned about the point of law that we are discussing are not amateur organisations, or junior legacy officers in charities; as he said, they include STEP, which is the professional organisation of trust accountants and lawyers. There is a widespread body of legal opinion that has been shared with most of the top 500 charities, and it suggests that the issue remains a problem in law, hence all the representations that we received. Clarification on the double compliance issue might assist charities, and it will certainly provide them with a defence in law if they are challenged on the lack of a report on a particular occasion, but the overwhelming body of advice from charity lawyers states that there is indeed a problem in law with the personal involvement of trustees and the commissioning of reports.
To expand on my earlier point, I can reassure the hon. Gentleman that it is absolutely clear that duties are given to trustees throughout the law, but there are general powers allowing the delegation of many of those duties, including the duty that we are discussing. I hope that that satisfies him, and that he will withdraw his amendment. I give him a promise that there will be proper dialogue on the issue with the commission.
I am grateful for the right hon. Gentleman’s comment; indeed, I was about to make it, myself. As a charity trustee, I have some interest in the subject, and perhaps I should declare that interest. Although we have good liability arrangements in place, in general trustees have personal liability in that regard. It is routine to delegate administrative functions, including—as the representations from the various charities have made clear—securing section 36 reports. No one is suggesting that trustees are personally talking to surveyors and estate agents and obtaining the reports; such duties are clearly delegated to the proper officers. However, as part of the approval process that must be followed, I guess that it would be a derogation of trustees’ responsibilities if, at a meeting of trustees or of the governing body, there was not, at the very least, a personal vote on whether to approve the report.
I welcome the Minister’s promises to take the matter up with the Charity Commission and to look at perceptions, as well as the simplification of any regulations. However, that does not remove a problem that, according to the advice of the overwhelming majority of charity lawyers, has persisted for a decade or more. It requires the change of law proposed by the new clause, which I wish to press to a Division.
Question put, That the clause be read a Second time:
The House divided: Ayes 191, Noes 284.
Meaning of “charitable purpose”
With this it will be convenient to discuss the following: Amendment No. 124, in page 2, line 16, after ‘religious or racial harmony or equality and diversity’ and insert
‘harmony or equality between races, religions and beliefs’.
Government amendment No. 2.
Amendment No. 125, in page 2, line 27, at end insert—
‘(aa) in paragraph (c) “belief”, and in paragraph (h) “beliefs”, are to be construed in accordance with article 9 in Schedule 1 of the Human Rights Act 1998 (c. 42)’.
Government amendment No. 3.
Amendment No. 122, in page 2, line 35, after ‘exertion’ insert
‘or which, on the day this section comes into force, are sports or disciplines open to competition in games organised by:
(i) the International Olympic Committee;
(ii) the International Paralympic Committee; or
(iii) the Commonwealth Games Federation.’.
Government amendment No. 4.
I shall speak in support of the amendments tabled in my name and the names of other hon. Members from more than one party. I shall talk about Government amendment No. 2 and amendments Nos. 123, 124 and 125. I shall cover in passing amendment No. 122, and I shall say a word about the other Government amendments in the group for another reason.
I accept that I come late to the Bill and I know that a huge amount of excellent work has been done by Ministers and Opposition Front Benchers, not just on this Bill but on a draft Charities Bill and a previous Bill in a previous Parliament. I have followed this particular aspect with interest but I do not claim to be an expert on charity law like other hon. Members who have worked so hard on this impressive piece of legislation.
The issue that I want to speak to is relatively narrow, and the Minister knows that it has been the subject of correspondence with, in particular, the British Humanist Association. I am an honorary associate of the National Secular Society, and I wish to record that. I am also a member of the Joint Committee on Human Rights, which has reported on this matter at least three times, backing in general terms the amendments that I am proposing.
The purpose of the amendments is, as the Minister and other hon. Members know, to widen one of the descriptions of charitable purpose—“the advancement of religion”, in clause 2(2)(c)—by adding the words “or belief”, using a definition of belief that is consistent with previous legislation. That should be the default position. The default position in law generally is that when we talk about religion now, we talk about religion and belief. The Government’s own admirable Equality Act 2006 did just that; the Communications Act 2003 did just that; and of course the parts of the Human Rights Act that deal with these issues, notably articles 9 and 14, are predicated on that basis.
The default position should be that the Bill says “religion or belief”, so that non-religious belief systems analogous to religion but not religious, and not simply non-theistic religious views but non-religious belief systems, are covered. So the Government need to provide an explanation, which I may or may not agree with, of why they have departed from what is the default position in modern legislation. I hope that they will realise that there is not a good enough explanation, and will accept the amendments.
Secondly, not to do that creates an issue of principle, which is that in our legislation, non-religious belief systems are being dealt with differently. There is an argument to be had about whether that has a practical impact; I believe that it has, although the Minister may claim that it has not. But regardless of whether there is as yet a visible practical impact, or has been in the past, there is a principled position, which must be explained.
I have certainly received representations, and I have seen a letter dated 18 September to the Minister from the British Humanist Association, which I shall refer to, setting out the practical impact of the fact that until now charities law has dealt with non-theistic belief systems in a different way, meaning that they have to jump through extra hoops and offer extra justifications to get the treatment under charity law that religious charities get almost by default. I intend to discuss that.
Finally, I shall draw attention to the Joint Committee on Human Rights report on this issue, because that Committee’s recommendation is to draw to the attention of both Houses the ongoing concerns.
I strongly support the hon. Gentleman’s amendments, which I have signed myself. I wondered whether he would give some idea of the proportion of the population who might be excluded in a sense from the coverage of the Bill if the word “belief” were not included.
It is hard to say, because the number of people signed up to humanism per se, through the British Humanist Association and other organisations, is not as extensive as for other religions. But as the hon. Gentleman knows, this is not a question of numbers because the Bill makes provision, as it should do, for small religions—even religions whose adherents are fewer than those who have actually consciously subscribed to a humanist belief system—to be recognised. I am sure that the Minister will be aware that there are significant numbers of people who say—for good reasons, I happen to think, although I am not a member of the British Humanist Association—that they have a non-religious view of life. At a time like this, given what is going on in the world, that is something that should at least not be discriminated against, and some may argue that it is a very laudable thing.
What I do not understand is, what belief system would not be covered by the definition of the advancement of education, health, citizenship or community development, arts, culture, heritage or science, or any of the other purposes listed elsewhere in the clause?
I was going to come on to the point that the Government have made about that. It is not that humanist or rationalist new organisations, for example, may not be able to get charitable status under another part of the clause. Indeed, the Government said in their response to reports from the Joint Committee on Human Rights that the catch-all, which used to be clause 2(2)(l) and is now clause 2(2)(m), and refers to subsection (4), would do. That is not the issue. I agree with the hon. Gentleman that it is not that those are not charitable activities; it is just that they should be dealt with in a straightforward way, in the same way as religious belief systems. It is easier, because of the specific mention of religion, for that to happen with religious belief systems.
For reasons of non-discrimination, the default ought to be “religion or belief”, as defined under the Human Rights Act 1998, introduced by this Government. That definition has stood the test of all the other recent Government Bills that have mentioned religion. This Bill is a curious departure. To argue that the situation is okay because those organisations will be able to do things some other way, which might or might not take them longer, is not an argument of principle, and it is an argument of principle that I want to hear from the Minister.
In the 18 September letter to the Minister, the chief executive of the British Humanist Association, Hanne Stinson, says that the BHA has never been given any reason why the separation of non-religious beliefs from religion is necessary or desirable. That is the key point, and if that is not addressed it will be hard for us to avoid pressing the amendment to a Division. We need some sort of explanation. The BHA says—and I agree—that the situation is objectionable on formal grounds as an obvious discrimination between religion and non-religious beliefs, even if no actual detriment is caused. It says that it would be likely to lead to detriment for non-religious beliefs as different bodies of case law or Charity Commission practice built up, because cases dealing with non-religious beliefs may well not be dealt with by the same staff or in the same context as those dealt with under another sub-heading. That is at least possible—some would say probable.
The BHA claims—I have seen the background to this—that Government assurances that there is no problem and that things will not be any more difficult are undermined by past Charity Commission practice and by Government assurances of special treatment for religion. I will give a brief example. It cites the Minister saying on Second Reading:
“it is right that public benefit must be shown, but…at least for religion, the obligation will not be onerous.”—[Official Report, 26 June 2006; Vol. 448, c. 96.]
As the reference is not to “religion or belief”, that can be taken, and is taken, to show that for religion the obligation may not be onerous, but it may be for things covered by the catch-all, or the items relating to education that were mentioned by the hon. Member for Rhondda (Chris Bryant). We know from other debates that education is a difficult ground for which to show public benefit.
The Government need to be aware that in practical terms, there has been an impact. The BHA goes on to explain that past practice shows that it can be onerous to get charitable status for a rationalist or humanist belief. The Rationalist Association sought registration as a charity in February 2001 and put in an amended application in November 2001. The process took another 15 months after the amended application was made, and there was endless correspondence with a variety of Charity Commission staff, each pursuing different lines of unnecessary inquiry, before at last the application was approved in exactly the amended terms proposed in November 2001. That cost a lot of money and delay.
The commission made the following assertion in the course of that correspondence:
“the promotion of Rationalism and Humanism in themselves … is not a charitable activity”.
Would the commission ever write to a Christian charity to say that the promotion of Christianity in itself is not a charitable activity? I believe that debates will show that if anything, assurances have been given that the straight promotion of, for example, Christianity is to be considered a charitable activity in itself, before the other test about public benefit, which we might debate later, is passed. I share the BHA’s view that that is
“the clearest demonstration of blatant discrimination against non-religious beliefs by the Commission and of the need for the Bill to bring religious and non-religious beliefs together under the same head so as to deter to some extent at least such detrimental treatment of humanist charities in the future.”
It has been argued that because there is a wide variety of non-religious beliefs, they demand special scrutiny. However, the same applies to religion. There are a multitude of religions. The Government have been reluctant—I do not argue with this—to define religion in statute, but have recognised that there will be a number of religions. The non-religious beliefs that qualify under the Human Rights Act as being governed by article 9 are already delimited by case law, and non-religious beliefs are no different from religious ones in being required to show public benefit. One can always argue about Scientology and so forth, but the same arguments that might apply to non-religious belief systems apply to some—some might say all—religious belief systems. I am talking about the questions that need to be addressed.
Just as the Government do not get drawn into giving lists of examples—rightly so—I am not going to be. The understanding of the definition of belief in the Human Rights Act, which is the definition that I have proposed and that the Government use in all other legislation, clearly does not cover political belief systems. There is not a shred of jurisprudence to suggest that it ever would. The definition is meant to refer, does refer, and is understood to refer, to rationalist and humanist belief systems, for example. I am not an expert in these matters. We all have other things to be getting on with rather than worrying about the meaning of life, even at a time like this. However, the people who are affected have written to express their views. There will be humanists and rationalists in the hon. Gentleman’s constituency. I know that he will think about these things deeply before deciding whether to opt for a discriminatory, or apparently discriminatory, approach, and he will have their interests and feelings in his mind as he decides his position.
I want to cover what the Joint Committee on Human Rights has said and then I will draw my remarks to a close. The Committee was clear in its scrutiny of the draft Charities Bill. In paragraph 5.23 of its report of 1 November 2004—its 20th report of that Session—it stated, after setting out the Government’s response that they were satisfied that organisations advancing non-religious beliefs would not be disadvantaged under the Bill as currently drafted:
“We remain of the view that Convention compliance could best be supported by including the advancement of non-religious beliefs as a charitable purpose under clause 2(2)(c)”—
I believe that that is still clause 2(2)(c) several versions later—
“and we draw this matter to the attention of both Houses.”
The Committee went on to comment on that in its report on the Charities Bill in the last Session. It set out its detailed argument in paragraphs 3.11 to 3.15. I will not repeat that, but the Committee did want to reiterate the following point, in paragraph 3.15:
“Whilst we appreciate that clause 2(2)(l)”—
—now clause 2(2)(m), which refers to the subsection (4) catch-all—
“is capable of application in the way suggested by the government, we remain of the view that protection of Article 9 rights on an equal basis could most effectively and clearly be ensured by provision on the face of the Bill, expressly extending clause 2(2)(c) to cover all religious and non-religious organisations which promote systems of belief. As we stated in our report on the draft Bill, at a minimum, guidelines under the Bill must clarify that organisations advancing all forms of both religious and non-religious beliefs protected by Article 9 would be accorded recognition under either clause 2(2)(c) or clause 2(2)(l) on an equal basis.”
If guidelines are going to say, “Use clause 2(2)(c) to cover non-religious belief systems,” why not just include “religion or belief” and make the statute look like what the guidance needs to be?
Finally, the Joint Committee on Human Rights returned to the matter in its latest report on the subject, the first report of the 2005-06 Session. It recognised that there had been some improvement, because a definition of religion had been included. I want to record on behalf of the Committee, informally, our recognition that that was done. In paragraph 1.8, the Committee states:
“We welcome the broad definition of religion in clause 2(3)(a), as supporting the Article 9 and Article 14 rights of those promoting non-theistic or multi-theistic religions. However we support the conclusion of the previous committee that, whilst compatibility with Article 9 and Article 14 could be achieved in practice”—
I believe that that is arguable—by application of the catch-all
“as proposed by the government, such compliance would best be assured by a definition which extended to non-religious belief systems falling within the protection of Article 9 ECHR. We draw this to the attention of both Houses.”
We thus have not only arguments of principle, but the fact that the default is to use a definition such as that proposed. We also have three recommendations of the Joint Committee, which was set up by Parliament to advise it on human rights and discrimination, and a practical impact—and we have heard in return no convincing arguments of principle from the Government about why they are not doing what I propose.
The problem is that there will be attempts—amendment No. 126, which was tabled by the right hon. Member for Maidstone and The Weald (Miss Widdecombe), is an example—to treat religion as not requiring a public benefit test. If that were ever to come to pass it would clearly breach article 14, which addresses the duty of non-discrimination in respect of rights enjoyed under article 9, and exacerbate the existing system. The Government could solve such problems by accepting my amendments today.
May I speak briefly to Government amendment No. 3? I have a close association with the British Chess Federation, which has lobbied the Minister hard on the need not to have a provision in the Bill that would exclude the federation a priori from justifying its pursuit, which is enjoyed by many disabled and elderly people, as a sport of the mind. The federation would wish me to put on record its thanks to the Government and the Minister, who will have free entry to any chess club in the land—and they are pretty wild places—and to the hon. Member for Isle of Wight (Mr. Turner) for raising the matter in Committee. The Government have done a good thing by tabling that amendment, so I hope that they will also do a good thing for the humanists, not all of whom play chess.
The hon. Member for Oxford, West and Abingdon (Dr. Harris) will not be surprised to hear that I wish to speak about the issue that he just raised. I welcome Government amendment No. 3 because it is clearly intended to include activities such as chess in the scope of the clause on the advancement of amateur sport. I applaud that, because the promotion of chess will bring a huge public benefit for not only people who are disabled or elderly, but young people, especially. When we talk about chess, it is often not recognised that it does not require mental agility and concentration alone. At higher levels, a lot of physical effort is required to engage in a match lasting perhaps several hours.
Cheddleton and Leek chess club, which is one of the most successful chess clubs in the country, is in my constituency, and plays at national level in the four nations chess league. It has produced five British junior champions and one visually impaired international player, so I can tell the Conservative Members who are smiling that it is not a joke club.
Charitable status would enable the club to attract even more people into the sport, and would mean that it could put on more events such as its successful annual congress, which draws many people, including international masters and grand masters, to Leek. The club could then also provide much more coaching for young people. It always holds a session on Friday nights for the adult and junior clubs, and also goes into schools to promote chess.
The Cheddleton and Leek club grew out of the passion of many young chess players. Back in 1973, chess was on the junior school curriculum, but there was nowhere for the youngsters to play after they got into high school. They thus pleaded with a teacher, Robert Milner, to set up a club so that they could continue to play. It is absolutely remarkable that the same Robert Milner is leading the club today; he should be congratulated on that.
Chess remains on the curriculum at St. Edward’s middle school, because it is recognised that chess hugely improves pupils’ concentration and benefits their learning potential overall. When I was a school governor in London, a team of young black students took on many private schools in south London and did remarkably well. Many of those students played chess in their playgrounds on the benches provided. Chess gave them huge motivation and massively improved their concentration and learning potential.
The Cheddleton and Leek club now boasts a junior section with 70 members, and its overall membership is more than 100. It has nine teams in the junior league. Many of the youngsters take on older players—frequently beating them—and there is a great rapport between the students, who can be as young as eight, and club members in their 30s, 40s, 50s, 60s, 70s and even 80s. The club does a tremendous job locally and should receive recognition for it. I am extremely grateful for Government amendment No. 3, because it will ensure that the club can get on the road to charitable status, which will allow it to get the support that it deserves and continue its valuable work in the community. I hope that other chess clubs throughout the country will follow its good example.
I speak in support of amendment No. 122, which I tabled. It is essentially a probing amendment, so I do not think that I will press it to a Division, unless I am greatly encouraged to do so by my hon. Friends. In any event, I pay tribute straight away to the Minister for his kindness in talking to me about the matter earlier, which was much appreciated. I hope that he will be able to respond constructively to what I say. In the simplest of terms, the amendment would widen the definition of sport in the Bill so that it included sports or disciplines open to competition in games organised by the International Olympic Committee, the International Paralympic Committee, or the Commonwealth Games Federation.
My right hon. Friend makes a good point. We are all trying to improve the Bill. It might be improved if the clause went wider—I say that frankly—but he will understand that my specific interest today is rifle and pistol target shooting. Given that those sports are recognised by the bodies that I mentioned, I focused my amendment on those bodies.
Has my hon. Friend noted that his particular formulation would exclude the sport of croquet, for example? Although I realise that that sport is legally indulged in only by people on this side of the House, it is a perfectly reasonable sport, with a proper governing body. However, as the international organisations to which my hon. Friend refers think that baseball is a perfectly acceptable sport but not croquet, I feel that an extension of his proposal would be much more even-handed and might receive the support of hon. Members on both sides of the House, even those who are not in the Chamber.
I think that I am right in saying that the hon. Gentleman’s amendment would also exclude rugby. It is certainly not an Olympic sport; neither is cricket, for that matter. Oddly enough, I think that the Olympic champion in cricket is France. More importantly, the hon. Gentleman has fixed the list in such a way that it might preclude sports that come into existence in the future from being covered. For example, triathlon is a young sport, because it did not exist 15 years ago.
The hon. Gentleman makes a good point. My understanding is that rugby union sevens would fall within the ambit of the definition as part of the Commonwealth games. He and I must have a chat some time about my distinguished rugby history, although I did not perform at any of those games.
On the edge of my constituency, Woking, can be found the Great Britain Target Shooting Federation, based at Bisley—a very fine organisation indeed. The federation manages target shooting with both rifles and pistols, and co-ordinates those sports at the Olympic and Commonwealth games. It works hard with and is admired by Sport UK, and has an exemplary reputation. I say immediately for the avoidance of doubt that I am talking about target shooting with rifles and pistols, which has nothing whatever to do with hunting.
The Bill introduces the concept of “the advancement of amateur sport” as being a charitable purpose. Sport is defined, rather narrowly, in clause 2(3). The Government have tabled their own amendment No. 3, which slightly broadens that definition. That is all to the good. The federation, not unnaturally, is concerned about the fact that target shooting with rifles and pistols, which is recognised by the Olympic and Commonwealth organisations as an amateur sport, could be excluded by reference to the current definition of sport, though I hope not by the Government’s new proposed definition.
The sport to which I refer, and its governance, must not be confused with hunting or any gun lobby. Target shooting sport in the UK was founded in 1859 and featured in the first Olympic games of 1896 and every games, bar two, since then. Target shooting is an Olympic, Commonwealth and Paralympic sport. The home nations have a high reputation internationally and regularly win medals. Target shooting provides many opportunities for competitive sport at county, national and international level through recognised international governing bodies.
Target shooting sport, as regulated and governed by the national governing bodies, is an inclusive sport without any discrimination and with special emphasis on encouraging the young. It provides a safe sport requiring physical and concentration skills, and promotes and maintains health. It also provides a safe sport for those with disabilities, including blindness or sight impairment, in some cases on equal terms with the fully able-bodied. It provides a lifelong sports activity for the very young to the very old. It is a sports activity encouraged by many local councils, schools and cadet units. It encourages a responsible attitude to shooting and the handling of firearms from club level upwards, and is therefore a force for good in society.
The listing of target shooting sport as a charitable activity in the advancement of amateur sport is fundamental to the federation, and would help to give it the financial ability to support target shooting not only for its members, but for the blind and the Paralympics, and for the training of Olympic hopefuls. I believe that the Minister of Sport is sympathetic to the federation’s position, for I gather that in relation to the Olympics he has written a paper for the Home Secretary to help facilitate the making of arrangements for squad practice for target pistol shooters in the UK in preparation for 2012.
I agree with everything that the hon. Gentleman has said about target shooting, particularly for disabled shooters and young people, who can compete on equal terms. Is he aware that at present the Charity Commission excludes shooting per se? Does he not think that that is wrong, and that in the Bill we should try to do something about that?
I am grateful for the hon. Gentleman’s intervention. I believe—he must correct me as I go along—that he has something of a distinguished background in and knowledge of these matters, on which I congratulate him. He does not correct me, so I assume he concurs with what I said. Indeed, he is right: there is reference to “shooting”. I shall try in a moment to differentiate between shooting, which can be an emotive word, and the narrower interest on which I am focusing today—target rifle and pistol shooting, which we should try to separate in our minds from shooting in general.
My understanding is that the Charity Commission must issue guidance in pursuance of its public benefit objective. I understand therefore, and I shall be corrected if I am wrong, that the view taken by the Charity Commission concerning target rifle and target pistol shooting will be very important. However, I further understand that the Charity Commission stated in paragraph 11 of pamphlet RR11 that it did not consider that certain sports constitute “sport” within the purposes of the Bill. Among those sports the commission lists “Rifle and pistol shooting”.
I stress two points immediately. We are talking about target rifle and target pistol shooting, which is a different concept. I understand that the Charity Commission may have been advised that shooting should not be or would not be charitable, but in the advice that it received there was no reference to the sport about which I am speaking—target rifle and pistol shooting. This sport is already accepted as a “sport in the community” for the purposes of the community amateur sports club legislation by virtue of being recognised as a sport by the Sports Councils.
For the sake of future success and viability, as I have mentioned, the federation is keen for the sport to be recognised as such under the Bill. Although it is registered as a charity under the long established public benefit precedent, as its activities are
“in the interests of defence”,
it believes that in the current environment it would be much more successful also to be recognised for charity purposes as a sport. As I said, this would help with recruitment of the young to the safe use of firearms for competitive marksmanship.
I stress that we must concentrate on the misunderstanding among some people of exactly what the activity of athletic, competitive target shooting is. The federation justifiably claims that its courses of sporting practice conform to requirements for fitness as they include elements of stamina, strength and suppleness—the qualifying criteria, in many cases. The federation represents a major category of international sport. If those sports are not regarded as a charity activity, they would be the only sports recognised by the Commonwealth Games Federation and the IOC not to be so.
In a letter to the federation, the Minister of Sport stated:
“My understanding is that recognition under the terms of the Charities Bill is a matter for the Charity Commission”,
so I hope the Charity Commission will take careful note of my remarks, and I hope it will be positive in its response to them. I hope also that the Minster will be positive when he responds. Clearly, the Charity Commission pays attention to the intentions of Parliament as expressed in the House, and I would very much welcome from the Minister a positive message about the sport of rifle and pistol target shooting. It is my judgment that he will feel able to give me a positive message. Even a clear recognition that those are nothing to do with hunting would help.
Another misunderstanding has occurred. The Central Council of Physical Recreation produced a document on sports which it suggested would have difficulty qualifying for charitable status, and among those was included shooting. Again, the word “shooting” is so wide as to include a great deal more than the narrow pistol and rifle target shooting on which I am focusing. So, in the hope that the Minister will have something positive and helpful to say to me, I shall finish by quoting from a letter sent on 17 October this year by Disability Target Shooting Great Britain to the federation. It says:
“We understand that at present the Charity Commission does not regard rifle and pistol shooting as charitable activity. We endorse the application for rifle and pistol target shooting sport to be defined as sport for purposes of the proposed Act as being in the ultimate interests of our own organisation. As the governing body for Disability Target Shooting, we are well aware of the importance of disabled people being given the chance to enjoy the sport of target shooting, very often on equal terms with able bodied people.”
That letter says a great deal. I look forward to hearing from the Minister.
I speak as chairman of the all-party group on the voluntary sector and charities, as it used to be called. The all-party group on the community and voluntary sector, as it has been called for the past year or so, takes great interest in the progress of the Bill. I shall deal with amendments Nos. 123 to 125 from a personal perspective, but first I shall comment on Government amendments Nos. 2 and 3. They are good examples of the Government’s having listened to debates and accepted that loopholes need to be closed and anomalies corrected. Neither of the amendments is earth-shattering, but it was clear to those of us who served on the Standing Committee that members of the constabulary, in particular, were worried about the anomalous position of police welfare organisations. Extending the provision to all the emergency services removes any doubt. I therefore welcome the amendments.
I remember the hon. Gentleman teasing members of the Standing Committee about supporting an amendment which he described as
“harmless, albeit not entirely necessary”.—[Official Report, Standing Committee A, 4 July 2006; c. 6.]
Now, that amendment has been introduced as a Government amendment. Should we regard something which is harmless, albeit not entirely necessary, as the High Peak principle?
Was it? Oh, right. [Laughter.] Nevertheless, the Cheltenham principle of advocating a provision that is “harmless, albeit not entirely necessary” was advanced so many times. This provision would not be regarded as “not entirely necessary” by those who will benefit from it.
On chess, I echo the remarks of my hon. Friend the Member for Staffordshire, Moorlands (Charlotte Atkins). I ask her to pass on my best wishes on the success of the campaign to Robert Milner, whom she mentioned as the father of chess in north Staffordshire. I remember him well from my days growing up in Leek, and I also taught alongside him for a short period on teaching practice.
Returning to amendments Nos. 123 to 125, I suspect that the hon. Member for Oxford, West and Abingdon (Dr. Harris) and I have similar views on religious faith—I do not profess to hold religious views, and neither does he. However, I have reached different conclusions about the need for and practicality of legislating on the protection or the charitable status of non-religious views. The first part of the hon. Gentleman’s speech addressed beliefs and belief systems themselves, whereas it seems to me that charitable purposes can apply only to organisations which are involved in promoting those beliefs and belief systems.
One would not want to discriminate on the grounds of lack of religious belief, just as we do not allow discrimination on the grounds of religious belief, but the Bill does not do that, because it contains so many opportunities for an organisation involved in advancing non-religious beliefs to have its rights protected and for its charitable purposes to be recognised. The hon. Gentleman said that the Government were right not to define religion too tightly, but then appeared to accept that non-religious beliefs could be defined sufficiently well to put them in the Bill, which I found particularly difficult to get my head around.
First, I was talking about the advancement of non-religious beliefs. The hon. Gentleman must explain why the advancement of, for example, Christianity or Buddhism should be treated differently from the advancement of humanism. Secondly, one can use terms such as “religion” and “belief” in legislation, because it is understood from previous legislation what they mean. If the hon. Gentleman is concerned about a wide definition of “belief”, he should be concerned about the Equality Act 2006, the Human Rights Act 1998 and the Communications Act 2003.
I agree with the hon. Gentleman about the need to resist amendment No. 126, which would take away from religious organisations the need to justify their charitable purposes. I am sure that the Minister agrees that it would be absolutely wrong to go down that line.
I am one of those non-religious people who do not consider religion to be such an important thing that I want to shout about my lack of religious views or to get involved with such organisations; my personal credo is that my political views are much more valuable and useful to me. However, the Bill includes opportunities for organisations involved in the advancement of non-religious beliefs to have their claim to charitable status recognised.
Does my hon. Friend recognise this anomaly: the Government have chosen to change clause 2(3), so that the definition of religion includes
“a religion which involves belief in more than one god, and a religion which does not involve belief in a god”,
but the provision does not state that a religion might involve belief in a single God?
Either my hon. Friend is thinking along the same lines as me or he has been reading the proceedings in Committee, where I raised that very point. In Committee, the Minister told me that clause 2(3)(a), which covers what religion includes, can include matters besides those listed in sub-paragraphs (i) and (ii). I hope that that is clear—that explanation was clear enough for my satisfaction at the time.
In an earlier intervention, my hon. Friend the Member for Rhondda (Chris Bryant) pointed out that subsection (2)(e) refers to “citizenship or community development”. In this day and age, I do not think it possible to discuss citizenship without discussing belief systems and, indeed, the beliefs that underlie those systems. I therefore think that an organisation that is involved in citizenship or community development from an explicitly and specifically non-religious point of view could justify its charitable status under subsection (2)(e).
Subsection (2)(h) relates to the point raised by the hon. Member for Oxford, West and Abingdon. As
“the advancement of human rights”
is included as a purpose in the Bill, I therefore presume that that includes article 9(1) of the European convention on human rights. Even if that point were not covered, subsection (2)(m) refers to
“any other purposes within subsection (4)”,
“any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within any of those paragraphs…above”.
Surely a non-religious organisation, in so far as it is all about beliefs and the advancement of those beliefs, is analogous to a religious organisation. Those provisions would allow a non-religious organisation to have its purposes acknowledged as charitable.
Does the hon. Gentleman accept that there is a further test—that the purposes
“may reasonably be regarded as analogous”?
Why should humanism be treated like that just in this Bill, when Buddhism is not, simply because it is a religious belief? There is nothing innate about Buddhism that means that it should not have to go through the hoops of the extra test for non-religious beliefs. The hon. Gentleman thinks that the extra test for non-religious beliefs is straightforward, but practice has shown that it might not be.
As the hon. Gentleman has acknowledged, it is not practical to define exactly what we mean by “religious beliefs”. It would be completely wrong to include a schedule to the Bill listing religious beliefs for the purpose of the Bill. Even among humanism, atheism and agnosticism, there are lots of different views, and different organisations may adopt slightly different approaches. I do not think that we should to seek to define “religious beliefs” too closely.
Finally, I have always believed that one of the problems with the funding of political parties is that the public benefit that political parties provide to this country is not recognised in law or charitable law. On another occasion, perhaps we can examine whether political parties are covered by subsection (2), although that may be a discussion for another day.
This is an interesting debate, which illustrates a theme that was clear in the debate on section 36 agreements—that there is a practical advantage in having clarity in such a Bill, because that would avoid the kind of arguments that are reasonably harmless in this place but when conducted in the courts and with solicitors add up to delays and large bills for the charities involved.
Government amendment No. 2, which has not been discussed a great deal, adds a head of charity for
“the efficiency of the police, fire and rescue services or ambulance services”.
We owe the amendment to the inspiration of the hon. Member for Isle of Wight (Mr. Turner), and I am pleased that the Government have tabled it. It is an example of adding clarity to the law in such a way as to avoid onerous debate and discussion by the relevant charities.
I had to be persuaded that amendments Nos. 123 to 125 had such a practical impact as well as the point of principle involved. My personal experience with humanist organisations was always that they had managed to achieve charitable status through the formula of “the mental and moral improvement of mankind”. The Minister pointed that out to me in Committee. The formulation, “religion and belief”, is increasingly widespread not only in human rights law but in Government legislation on several different topics. I even found some regulations that refer to it in their title—the Employment Equality (Religion or Belief) Regulations 2003. Some people worry that this might open the door to Marxism, for example, becoming charitable. However, the meaning of “belief” is well established in this context, as in those regulations and in human rights law—it does not extend to political beliefs but is limited to relevant beliefs such as humanism and secularism.
With all due respect to the hon. Gentleman, the legislation that he mentions concerns unjustified discrimination on various grounds, not belief itself. I am sure that we would all agree that this is not only about there being no circumstances in which it would be justifiable to discriminate against someone on the grounds of their belief, whatever it happened to be, in relation to their job, for example.
The hon. Gentleman makes a reasonable point, so let me cite an example that does not deal with discrimination. It comes from a rather unlikely source—I found it on the Charity Commission’s website only yesterday. The commission recently accepted the promotion of religious harmony for the benefit of the public as a charitable purpose, and it gives some guidance for people wishing to promote religious harmony. Under the heading, “Religion and Other Belief Systems”, it says:
“This new purpose is about promoting harmony or reducing conflict; it is not restricted to promoting harmony between religions that are recognised by charity law. Since “religion” in this context is not confined to the charity law definition we believe this would also embrace “beliefs” as defined in human rights case law. It also includes the promotion of harmony between believers and non-believers.”
So the Charity Commission itself is advising people to regard religion and belief as—
I am grateful to the hon. Gentleman, but that is not quite my point. The formulation, “religion and belief”, is now widely accepted and understood in a variety of different—[Interruption.] The Minister for the Cabinet Office is shaking her head; perhaps she would like to explain why the title of the employment discrimination regulations and the formulation proposed by the Charity Commission are wrong. The fact is that it is now a widely accepted formulation in legislation, in case law and in many other respects. In principle, it means that humanist and secularist organisations do not to have to jump through a series of hoops to prove that they are analogous to religion.
We have heard about some imaginative ways of achieving that. The hon. Member for Rhondda (Chris Bryant) gave a list of the different heads of charity that they might come under. The hon. Member for High Peak (Tom Levitt) suggested that they might squeeze in under the human rights head of charity or fall within the subsection that allows for purposes analogous to those listed previously. I take the point made by my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris). Why should humanist and secularist organisations have to jump through these extra hoops in this area of law alone when it is not required, for instance, in relation to anti-discrimination law or human rights law?
This debate would be so much dancing on pinheads if the confusion did not have a practical impact, but I am persuaded by some of the correspondence that I have received that it does. My hon. Friend the Member for Oxford, West and Abingdon cited the Rationalist Association, which had to wait two years before its registration was eventually accepted, at some cost not only to the association but to the Charity Commission. I dread to think how much of the commission’s staff time was chewed up in arguing over the fine detail of the case.
To follow the High Peak principle, there is another advantage in clarifying the law, even if the outcomes may be the same in that, one way or another, humanist and rationalist organisations will achieve charitable status. This is clearly an area of confusion. Most members of the Committee will be familiar with the example given by Mr. Rosser-Owen of Religions Working Together, who recently wrote about a description that has recently been changed on the Charity Commission’s website in another context. It states:
“Belief in a Supreme Being is a necessary characteristic of religion in charity law which is why the criteria that we use include reference to a Supreme Being rather than a god. The existing law allows theistic, non-theistic and polytheistic faiths to be regarded as religions in charity law and the precise nature of a Supreme Being is not defined. A Supreme Being does not necessarily have to be in the form of a personal creator god; it may be in the form of one god or many gods or no god at all in the accepted understanding of the term.”
The idea that a supreme being may be in the form of “no god at all” is a new one on me, and it illustrates the importance of the Bill in clarifying the position beyond reasonable doubt and allowing us to proceed on a more rational basis. I am happy to support amendments Nos. 123 to 125.
Moving on to the lighter topic of sport, I am happy to support amendment No. 3. I am sure that chess players everywhere will be celebrating, in a cerebral sort of way. It is a positive contribution to the Bill.
Amendment No. 122, tabled by the hon. Member for Woking (Mr. Malins), suggests that we use the Olympic games, the Paralympics and the Commonwealth games as a guide to what constitutes a sport. Given that I am a member of a party led by a former Olympian, it would be churlish of me to oppose the amendment, which provides a neater formulation than the one in the original Bill. Some hon. Members are worried that certain worthwhile sports may be excluded. However, as the amendment adds to the Government’s current formulation in the Bill, we need not worry about the exclusion of any sports apart from those that might have difficulty qualifying under the Government’s formulation of requiring “physical or mental exertion”. The hon. Gentleman clearly has shooting in mind, and I am happy to support that in principle provided that nothing gets killed in the process.
Absolutely. A few others might have had difficulty in getting through under the formulation, “physical or mental exertion”. Synchronised swimming, which is an Olympic sport, certainly involves physical exertion. Curling and, I understand from the Commonwealth games website, 10-pin bowling would unambiguously be brought into the Bill by the hon. Gentleman’s amendment, which is spreading the net rather wide. I say to the right hon. Member for Suffolk, Coastal (Mr. Gummer) that I am sure that croquet is already included under “mental exertion”. I speak with some authority because the Cheltenham croquet club has played host in recent years to the world croquet championships, which I attended. I was disappointed not to see the Deputy Prime Minister there—I gather that he is a fan of the sport. Great mental exertion was in evidence on that occasion, not least because two games are sometimes played simultaneously on the same lawn. That is mind boggling.
I support the group of amendments. I hope that the Under-Secretary will make it clear in any directions that he gives the Charity Commission on the substance of amendments Nos. 123 to 125 that humanist and secular charities will no longer have to jump through the hoops that the Charity Commission has specified in the past. I therefore also hope that, in future, there will be a more level playing field between those organisations and religious charities.
We are considering an eclectic group of amendments. I shall begin by briefly considering those tabled by the hon. Member for Oxford, West and Abingdon (Dr. Harris). He is clear about the beliefs that the amendments do not cover but unwilling to specify those that are covered. That worries me. There is a distinction between belief systems that are essentially non-rational and must therefore be subject to a light-touch public benefit test—I hope that that would happen—and those that are rational and therefore testable. A rational belief system is more testable than a non-rational belief system. It would be unfortunate to couple them under the same heading in clause 2.
I am interested in the distinction that the hon. Gentleman tries to make but, in a sense, all beliefs are, by their nature, not rational. I believe that Bertrand Russell said that he could not prove that there was no God, even if he thought that it was highly likely.
I am grateful for that observation.
Before getting to the meat of my remarks, I wanted to tell the hon. Member for Oxford, West and Abingdon that it was not only the Rationalist Association that had to spend two years obtaining charitable status from the Charity Commission. Many organisations spend two years or more doing that. They include an organisation that promotes the protection of Bembridge harbour in my constituency. I am concerned that it takes the Rationalist Association and many other organisations too long to achieve charitable status.
I warmly welcome Government amendments Nos. 2 and 4 and the inclusion of police charities in the Bill. We pressed for that in amendment No. 1 in Committee. I also welcome the further inclusion of charities that benefit ambulance and fire service personnel and their dependants. I am especially pleased about those amendments.
I want to spend most of my time on Government amendment No. 3 and amendment No. 122, which my hon. Friend the Member for Woking (Mr. Malins) tabled.
Clause 2(2)(g) provides for
“the advancement of amateur sport”
as a charitable purpose when it is defined in subsection (3)(d) as
“sport which involves physical skill and exertion”.
There is already a circular element to the definition. I make no bones about welcoming Government amendment No. 3, which was tabled following remarks on Second Reading by the hon. Member for Birmingham, Northfield (Richard Burden), who listed sports that do not qualify as charities. They appear in the notorious RR11 as:
“Angling, ballooning, billiards, pool and snooker, crossbow, rifle and pistol shooting—
rifle and pistol target shooting, I stress to my hon. Friend the Member for Woking—
“flying, gliding, motor sports, parachuting.”
I see no reason why such sports should not benefit from charitable status subject to their fulfilling the public benefit test. Others, such as darts, are popular but do not appear to fall within the definition in clause 2.
There is a two-hurdle process in acquiring charitable status. The first question is whether an applicant is covered by the definition in clause 2. After establishing that, the second question is whether the activity fulfils the public benefit test in clause 3. There is no point in worrying about clause 3 unless one can be sure of clearing the hurdle in clause 2.
In Committee, we tabled an amendment that would have deleted the restrictive definition in clause 2(3)(d). The Parliamentary-Secretary kindly agreed to consider it. He has devised something that appears both to broaden and restrict the eligibility of different sports. Conservative Members welcome the extension of the clause to cover mental as well as physical skill and exertion, as do the hon. Member for Staffordshire, Moorlands (Charlotte Atkins) and others, because chess will be included. We also welcome the inclusion of games as well as sport, although I should like to know whether a new definition of games is emerging in the bowels of the Charity Commission.
Indeed. However, I am especially worried about the new qualification that sports and games should “promote health”—I emphasise those two words—
“by involving physical or mental skill or exertion”.
I fear that the amendment would introduce an additional bar. That is certainly true when compared with the amendment that I tabled in Committee. Government amendment No. 3 would introduce a “promote health” bar.
It would be difficult for some sports to demonstrate that mental exertion promotes health, yet that requirement will be placed on applicants. I am not sure why they should have to demonstrate that—is not sport a good enough activity in itself for it to be charitable? How does one demonstrate that mental activity promotes health? If health, education and the advancement of religion are good in themselves, why should not that be true of sport? I do not suppose that the Chancellor would spend so much money on sport merely because it provides entertainment. I am sure that he does so because he believes that it is a good thing and not simply because it promotes health.
The hon. Gentleman appears to doubt whether mental exertion can contribute to good health. Does not he accept that it can contribute to good mental health and helping those with depression, which is currently a big health worry in the work force?
When I worked for the Alzheimer’s Society, our director of research, who worked for the Institute of Neurology, more or less believed that any stimulation of the neurones was good for the physical health of the brain. I do not know whether that would cover darts players, but the general principle is good enough.
My hon. Friend says that they are very thin. I am worried that it would be difficult for some less fashionable sports to show that they contribute to mental health. I am not sure that the proponents of those sports should have to demonstrate that they contribute to mental health, because sport is a good thing in itself and should not need the qualification of contributing to health.
I am shocked that the Government’s proposed new measure relates not only to mental sport but to physical sport. When someone drives a car around a track there is physical exertion, but there is no indication that that improves their health, so it would appear to be excluded by the proposed new provision.
I do not think that it would be excluded, because it would be brought in by the “mental” element of the measure. I am sure that driving a car around a track involves mental exertion, so it would probably be brought in by the new provision if those undertaking that activity could demonstrate that it contributed to the promotion of good health. [Interruption.] Well, the Chancellor of the Duchy of Lancaster says that she is not sure whether it is of public benefit. With respect to the right hon. Lady, that is the second hurdle, and for the moment I am still trying to get over the first hurdle.
My concern is simply that the Charity Commission appears to be applying a definition that has emerged from a desire to include sport. It has been asked, “How can we get sport charitable status?” It has thought about that and said, “Well, it does promote good health, so we shall slide it in under that.” However, the Bill was introduced without a definition involving the promotion of health. [Interruption.] The right hon. Lady will find out in a moment. As I said, the Bill came forward with a definition that did not include the promotion of good health, and now the promotion of good heath is to be included again.
Having said all that, let me add that I accept the Minister’s good intent in introducing the amendment. I am grateful and pleased that he has done so, and I believe that, given reasonable efforts on the part of those who shoot at stationary targets—most people shoot at targets of one kind or another—they will be able to demonstrate that that is good for their mental health, if not for their physical health, and they will thereby qualify. However, I would be grateful if the Minister would make it very clear that it is not his intention to make what I have described as the first hurdle—clause 2—artificially high so that it stands in the way of the eligibility for charitable status of normal and widely recognised and practised sports, such as darts, billiards or target-shooting, so long as they cross the second hurdle of the public benefit test, to which the right hon. Lady referred.
I stand corrected, Mr. Deputy Speaker.
I shall speak to amendments Nos. 2, 3 and 4. Amendments Nos. 2 and 4 respond to the debate that we had in Committee about the exclusion of the efficiency of the police from being a charitable purpose. The hon. Member for Isle of Wight (Mr. Turner) moved an amendment that had been suggested to him by the Police Dependants Trust. We have talked to it further, and we propose to insert the promotion
“of the efficiency of the police”
into the list of charitable purposes. We also thought that we should include at the same time
“fire and rescue services or ambulance services”.
That is what amendments Nos. 2 and 4 do, and I hope that that satisfies the hon. Gentleman—I think that he has indicated that it does—and others.
Before I speak to the amendments tabled in the name of the hon. Member for Oxford, West and Abingdon (Dr. Harris), I shall talk about the sport issue. The hon. Member for Isle of Wight tabled an amendment in Committee to probe the Bill’s definition of sport. As the hon. Gentleman has expressed concern, I wish to reassure him that the intention of amendment No. 3 is certainly not to narrow the definition of sport—indeed, it is to widen it, hence the reference to “mental…exertion”. I want to make that clear at the outset.
Let me explain what the aim is of the new definition of sport. First, it makes it clear that what we are talking about, in the context of charitable sport, is sports or games that improve public health—I shall explain shortly why that is necessary. The Bill’s existing definition, with its requirement of physical skill and exertion, implies that, but it does not say so. The new definition takes a direct approach by referring specifically to health. That puts into statute the essence of the current law, and it will allow sports that the commission has not so far accepted to make their case. I shall say more shortly about the processes that will be gone through in that respect.
The new definition also extends to sports or games that involve mental, as well as physical, aspects. There is no justification for continuing to prefer the physical to the mental, given that those two aspects appear to be of similar significance. That responds to a point made by the hon. Member for Oxford, West and Abingdon, and which was eloquently spoken to in this debate by my hon. Friend the Member for Staffordshire, Moorlands (Charlotte Atkins). I should say that I was never a chess player as a child as it was too complicated for me. I was more of a backgammon player, but I am unsure whether backgammon will be able to make its case.
Some Members will ask why there has to be a link to health at all—why not just make all sport charitable? That is the approach that the community amateur sports club legislation takes. For charitable status to apply—regardless of whether it is in respect of schools or sports—there must be a public benefit. Health is the obvious link, and that is why it is flagged up in our amendment. However, I want to make it clear that it will be open to activities that do not qualify under the heading of sports that promote health to put forward their case that they deliver public benefit under one of the other headings that is available in respect of being a charitable purpose. For instance, some sports clubs already qualify because they promote citizenship or community development.
On amendment No. 122, in the name of the hon. Member for Woking (Mr. Malins), we considered over the summer whether we should follow his approach of a list for sports. It is worth explaining to the House the two reasons why we did not go for that option, attractive though it might be in certain respects. The first of them is a matter of principle: community amateur sports club relief is designed for all recognised sports, and included in that are the National Rifle Association, the Clay Pigeon Shooting Association and others. The difference in respect of charitable relief is that there should be public benefit.
I shall in a moment.
The second reason is important and complex, and it is a reason of practice. The clause that we are debating merely establishes a heading of “charitable purpose”. As with all charitable purposes—whether for animal welfare, education or anything else—a test to show that there is public benefit must then be applied by the commission and, ultimately, the court.
In a moment.
The problem with the amendment of the hon. Member for Woking is that even if we were to adopt it—this is why I decided not to go for the list approach—all the sports on the list would still have to show a public benefit such as health before they could qualify as charities. That is the whole basis of charity law. The problem then is that we would be sending a misleading message to those sports that somehow they were all in, when in fact they would still have to go through a process of proving public benefit.
I thank the Minister for giving way. As he might know, I am vice-chair of the all-party group on angling. As such, I am aware that there are thousands of angling clubs across the country that do an excellent job in their communities. Will they be eligible for charitable status, bearing in mind that their members exert themselves mentally and physically—it improves their health—and also that the Government are spending large sums of money through the Environment Agency to encourage people from all sorts of ethnic and social backgrounds to participate in fishing?
The argument is perhaps confusing clauses 3 and 2. The promotion of health is a public benefit and should relate only to clause 3. I do not see why it should be included in clause 2, which simply recognises groups that might—I emphasise might—provide a public benefit. The reference to health ought not to be included.
The hon. Gentleman makes an important point that, although I do not agree with it, is hard to refute. The reference to the promotion of health is really a flag to make it clear that health is an entry point for sports to prove that they can promote the public benefit. If we removed all references to a definition of sport, as was proposed in Committee, or adopted the approach of the hon. Member for Woking, in effect we would be in the same position because the established law—such as it is—focuses on health. However, we would give the impression to lots of sports that they were suddenly going to be covered by the legislation, when that would not be so. I agree that this is a complex point, and I hope that the hon. Member for Wellingborough (Mr. Bone) will accept my assurances.
The Minister referred tangentially to what I might describe as the stimulating exchange that I had on the telephone with a member of the Charity Commission’s staff only yesterday. I understand that health is the current entry point for sports to clause 2; what I do not understand is why, once we have legislated, health will still have to be the entry point to clause 2.
In order to pass the public benefit test there needs to be an entry point of some kind, and the accepted entry point is health. If Parliament wanted to legislate to say that all sports were automatically for the public benefit, it could do so. In my view, it should not take that decision because there should be a proof of public benefit of some kind. There is a whole range of public benefits that it is open to different sports to prove that they possess. There is helping young people and the disabled—I shall deal later with the specific case that the hon. Member for Woking raised—which, at least in part, are charitable purposes, and the promotion of health, with which this part of the Bill deals. Our principal position is that there should be a public benefit, unlike community amateur sports club relief, which applies to all sports. I am afraid that the amendment tabled by the hon. Member for Woking would not achieve the purposes that some Members seek to achieve.
As I tried to explain earlier, we are repeating it partly for the sake of clarity. [Interruption.] The hon. Gentleman looks quizzical, but I spent more hours than I care to report to the House working out whether there was a different way forward. If we did not adopt the Government’s preferred amendment, there would be no difference in practice, but a misleading impression would be given to sporting organisations throughout the country.
I want to make some progress.
In short, the amendment tabled by the hon. Member for Woking would not have a material effect; having said that, I hope that I can offer him some consolation. First, if the Bill passes as it stands, a definition of sport for charitable purposes will have been put in legislation for the first time. The Charity Commission has agreed to undertake a new consultation on that basis, so that all sports can make their case under the charitable heading. Secondly, it will be open to any sport to make its case under any other heading. I received a letter from the National Rifle Association—as I understand it, it is already a charity—stating that it plays a particular role in helping young people, which is another charitable purpose. So it can make that case.
The hon. Member for Woking spoke eloquently about the role that target shooting can play in providing a safe sport for disabled people and others. I am happy to make it clear that that is obviously very different from field sport shooting, and I am sure that the Charity Commission will be aware of that distinction. Thirdly, I have talked to the commission and if the hon. Gentleman has other concerns, it will be very happy to meet him to discuss them.
If I was not aware of it before, I am now, and I congratulate the hon. Gentleman on his advocacy of the work that angling does.
I turn to the amendments in the name of the hon. Member for Oxford, West and Abingdon, which were debated extensively in another place. It remains the Government’s view that they are neither necessary nor desirable, and I want to explain why as briefly as I can. They are not necessary because it is established beyond any shadow of doubt that organisations promoting non-religious belief systems such as humanism and rationalism can be charitable. The British Humanist Association, for example, has been a registered charity since 17 January 1983.
I was slightly confused by the speech by the hon. Member for Cheltenham (Martin Horwood). He said that it had been established that humanist organisations could be regarded as charitable under the provision concerning the moral, mental and spiritual improvement of humankind. So there is a clear charitable purpose in respect of which humanism can make its case; more than that, it is accepted under that provision that humanism is a way of promoting such improvement. The amendment on humanism is unnecessary because humanism’s contribution to charitable purposes is established in law and accepted by the Charity Commission.
I understand what the Minister is saying, but I made a number of points in my speech—not just concerning the point of principle—and accepted that the outcome would be more or less the same. However, there is a very important practical point. The Rationalist Association sounds to me, to all intents and purposes, like an organisation very similar to the British Humanist Association, but it has been put through the various hoops under existing charity law, which will be the basis of the new definition, and it took two years for it to achieve charitable status. So there clearly are cost implications and practical problems.
If the hon. Gentleman had been a little more patient, I would have come on to some of the practical ways in which the Charity Commission deals with humanist organisations.
I shall now explain why the amendment is not only unnecessary but undesirable. The hon. Member for Oxford, West and Abingdon tried to mount a compelling argument, but I did not think that he clarified the way in which belief is defined under the Human Rights Act. Actually, it is not defined under the Human Rights Act. As I understand it, the Human Rights Act reference to belief has been relied on for cases of non-discrimination, as my hon. Friend the Member for High Peak (Tom Levitt) pointed out. If public resources are being made available, however, the order of magnitude is different. We would want to be assured that we were not opening up the definition, through the use of the phrase “religion or belief”, to a wide and uncertain class of individuals or organisations.
I am struck by the debate in the other place, in which Lord Phillips—I do not know whether he is still in the other place—
My hon. Friend says from a sedentary position that Lord Phillips has left. Lord Phillips talked about precisely this issue, and I know how much he is relied on by the Liberal Democrats. In speaking to an amendment in Grand Committee, he said:
“The phrase ‘or belief’ has no constraint to it at all…‘belief’ on its own could embrace eugenics, hunting or a thousand and one other things. Frankly, we would be in a dark, deep, uncharted sea if the amendment were agreed.”—[Official Report, House of Lords, 3 February 2005; Vol. 669, c.GC45.]
I tend to agree with him on that point. The reason why the amendment is undesirable is that it would potentially open up charity law and charitable status to a whole range of organisations. As the noble Lord said, we would be in uncharted territory.
The implication of what the Minister has said is that religion is a shallow, charted sea. Everything that he said about the potential coverage of “belief” applies equally to the various religions. Why must only non-religious beliefs go into uncharted, deep waters, and not the huge variety of, some might say, strange religious beliefs, which, under his formulation, will not have to pass the same extra hurdles as non-religious beliefs?
One of the questions that we will address in the Bill, which we will come on to debate—if we ever move on—is whether a public benefit test should be applied to all organisations, including religious organisations. My point to the hon. Gentleman is that we are some hundreds of years into the establishment of religion in charity law. Yes, the Charity Commission must make decisions about Scientology and other religions, but Parliament, if it is amending legislation and passing charity law, must think carefully before potentially opening up the definition to a whole set of organisations that might come forward and say that they are now for a charitable purpose.
I wholly agree with what my hon. Friend says. For the avoidance of doubt, however, on the matter that I raised with my hon. Friend the Member for High Peak (Tom Levitt), an ordinary person looking at the Bill might think that religion was now defined as involving belief in more than one God, or as not involving belief in a God at all. I presume that that does not preclude religions that only believe in one God. Obviously, it would be odd to include pantheism but not panentheism, and to provide support for those who believe in Diana of the Ephesians but not for those who believe in Jesus of Nazareth.
I reassure my hon. Friend that that coverage is supplementary to that of belief in one God.
Unfortunately—as I recognise the eloquent case made by the hon. Member for Oxford, West and Abingdon and the problems faced by humanist organisations—those are the reasons why we cannot accept his amendments. He has referred to difficulties that rationalist organisations have had in dealing with the Charity Commission, but I do not think that that derives from uncertainty that organisations promoting rationalist beliefs can qualify for charitable status under the law. I have discussed the matter with the commission, as it has been raised in the other place as well as by him. Let me put on the record that the commission accepts that it needs to acquire a greater understanding of the basis of rationalist and other non-religious belief. It has agreed to engage in a consultation process with the relevant representative organisations in parallel with discussions now taking place with religious bodies.
I hope that that explains why we feel unable to accept the amendment. I also hope that it demonstrates the seriousness of the commission’s intent to ensure equal treatment and respect for humanist organisations.
Before the Minister ends his speech, I want to give him an opportunity—freestyle, as it were—to deal with the view of the Joint Committee on Human Rights that the Government are in peril of finding themselves outwith articles 9 and 14 of the European convention on human rights, as incorporated in the Human Rights Act 1998. There has not been a Government response—as there need not be under the current arrangements—to either report on the matter so far.
As a non-lawyer, I should probably turn down the invitation to deal freestyle with the Human Rights Act. However, I believe that the Bill as it stands complies with the Act. Indeed, Ministers must sign documents making it clear that that is the case.
As I have said, I understand where the hon. Gentleman is coming from, and I understand where humanist and other organisations are coming from. The Charity Commission accepts that it needs to raise its game in respect of those organisations and wants to embark on a process of consultation and discussion with them.
I am impressed by what the Minister has just said, but I should like him to restate more clearly what he said earlier, before being interrupted, about the outcome that he desired from the parallel process involving religious and non-religious organisations. I understood that what he was aiming for was equal treatment. Is that correct?
I am happy to make that clear. As I have said, I think the commission has made plain its wish to ensure equal treatment and respect for humanist organisations. However, we do not think that we can do that in legislation in the way that the hon. Member for Oxford, West and Abingdon suggests, and I hope that on that basis he will withdraw his amendment.
We have had several excellent debates within one debate, but I shall refer only to the issue that the Minister has just raised. I said at the outset that, in the face of three warnings from the Joint Committee on Human Rights, he must persuade those of us who support the amendment that there is a principled justification for treating non-religious beliefs differently from religion. That is the test. The Minister said that there were two planks to his argument: that the amendment was not necessary, which is not a principled justification but one based on practice, and that it was not desirable, which was at least entering into the discussions of principle.
In fact, even the practical argument does not apply, because the Minister based it on the fact that there was not a shadow of doubt that non-religious organisations concerned could be charitable. I accept that entirely. The fact that some are charities suggests that they can be charitable. However, it is not a question of whether they can ever be charities; it is a question of whether they can be charities as easily, or according to the same tests, as organisations for the advancement of religious belief. That has not been found to be the case in practical terms.
Let me now deal with the Minister’s argument about the commission’s wish to have discussions with non-religious organisations in parallel with its discussions with religious organisations. That is a practical matter. It is a welcome practical matter, and I do not want to sound churlish. It is about time that it happened, so it is welcome. However, the fact that the discussions will be in parallel with the discussions with religious organisations prompts me to ask why they are not being dealt with under the same heading.
A humanist representative was invited to the first consultation with religious organisations as part of the consideration of the public benefit test, but I thought that there should be separate discussions with the humanist organisations, given that they felt so aggrieved.
The Minister accepts that separate discussions are necessary because he proposes to deal with them separately, under different headings. That is, in fact, my point. In a sense, the concession actually confirms that the treatment of non-religious organisations is different—and, I would argue, unequal and unfair.
I asked the Minister to come up with a principled justification. Coming to his aid, the hon. Member for High Peak (Tom Levitt) said that it was difficult to define belief; but as it is just as difficult to define religion, so any arguments about definition apply to religious beliefs as much as to non-religious beliefs. Just because a god is involved—or even if not—it does not solve the problem. The argument that the hon. Gentleman used as a principled justification for making humanist societies do something different is that they can do something different. But that is not a justification for making them do something different.
The final argument was that it is okay to have equal treatment in discrimination law, but not in this respect. The Human Rights Act 1998 applies to public bodies so that they cannot discriminate in employment, in the disbursement of public funds or the treatment of an organisation—and the Charity Commission is clearly a public body. If a public body discriminated in employment, the victim would have two arguments, one based on the Act and the right to freedom of belief, and another based on employment legislation. The latter does not rely on the Act, but is free-standing under the EU directive and the employment regulations. The fact that employees in the private sector have an extra protection against freedom from discrimination on the basis of race and, now, religion is not an argument that public authorities should be allowed to discriminate disproportionately without justification. That is not an effective argument against the risk of incompatibility that the Joint Committee set out. If the Charity Commission, as a public body performing the public function of deciding which organisations are charitable, discriminates without justification against someone on the basis of their religion or belief—in the words of the Human Rights Act 1998—it will be liable under a claim on that basis.
The Government have said nothing to justify the statement on the Bill that it complies with the human rights legislation. The Minister said that there would have to be a separate consultation because the process would be different. The hon. Member for Isle of Wight (Mr. Turner) argued that the distinction was necessary because rational belief systems would more easily pass a public benefit test and, therefore, that non-rational belief systems, such as religious ones—he said that non-judgmentally—would require a light-touch public benefit test. That would be discriminatory, in a sense, and there would therefore be a good case under the Human Rights Act 1998 for discrimination. Just because someone has a rational point of view, they should not be made to pass an extra test. The fact that the harbour charity in his constituency took two years to gain charitable status is to be regretted, but it is not the right comparator for the point that I made.
The difficulty for those of us who support the amendment—the Minister will note that some Labour Members do—is that the Government have not come up with a principled justification for treating non-religious organisations differently from religious ones, despite three warnings from the Joint Committee that they need to address the issue. I accept the spirit in which the Minister made his remarks, but the only concession that he has made confirms that the process will be different. In a sense, that is the last thing that we wanted to hear. With that in mind, it is my intention to test the opinion of the House on the issue, because the Government will need to be able to show that they have taken that view. I apologise for detaining the House on the matter, but it is a key point of principle.
Question put, That the amendment be made:—
The House proceeded to a Division.
Mr. Michael Ancram (Devizes) (Con): On a point of order, Mr. Deputy Speaker. I do not, of course, complain at all about your, quite rightly, calling for the Doors to be locked, but I ask your advice. When the two major parties are voting together and there are long queues up the Stairs and through the Doors with no way of getting to the Lobby in time, could the House authorities look at ways of expediting the entrance of Members to enable them to get to the Division Lobby in time?
Mr. Deputy Speaker (Sir Michael Lord): This is not a new problem; the situation has arisen before. I understand the point that the right hon. and learned Gentleman has made, which will no doubt be taken into consideration by the appropriate authorities. With respect, the answer may be for Members to leave their offices a little earlier.
The House having divided: Ayes 59, Noes 444.
Amendments made: No. 2, in page 2, line 22, at end insert
‘, or of the efficiency of the police, fire and rescue services or ambulance services’.
No. 3, in page 2, line 34, leave out ‘sport which involves physical skill and exertion; and’ and insert
‘sports or games which promote health by involving physical or mental skill or exertion’.
No. 4, in page 2, line 37, at end insert ‘; and
(f) in paragraph (l) “fire and rescue services” means services provided by fire and rescue authorities under Part 2 of the Fire and Rescue Services Act 2004 (c. 21).’.—[Edward Miliband.]
The “public benefit” test
With this it will be convenient to discuss amendment No. 1, in page 3, line 23, at end insert—
‘(2A) In determining whether that requirement is satisfied in relation to any such purpose, consideration must be given to the effect of placing any undue restriction on obtaining that benefit.’.
I begin by apologising to Members who expected my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) to speak to the amendment. I am sure that if she catches your eye, Mr. Deputy Speaker, she will have the opportunity to speak, but I acknowledge that many Members would have preferred her to do so now.
There are two purposes only to the amendment, and both encompass the removal from the Bill of the presumption that the advancement of religion is a charitable activity. The first purpose, raised by some of my right hon. and hon. Friends, is to question whether the Charity Commission is willing or able to apply the right public benefit test to religions. The second is to ask whether it is possible for certain religions to pass that test.
In Committee, we discussed three different activities in the same debate: education, the relief of poverty and the advancement of religion. Under the Bill, each of those activities loses the presumption of public benefit. It was accepted that the public benefit test varies from group to group. Despite the fact that all those activities have enjoyed the presumption of public benefit, some charities have none the less had to demonstrate public benefit, so public benefit tests vary from group to group. This debate will give us the opportunity to concentrate solely on religion.
In Committee, I said:
“I am told that…it is not those who engage in religious practices who are the public who benefit; the public benefit is the benefit that they bring to society by rubbing shoulders with those who do not so engage…people who engage in religious practices are presumed to become more moral and altruistic as a result, so the public at large benefit when they mix with such people.”—[Official Report, Standing Committee A, 4 July 2006; c. 50.]
On Second Reading, however, the Chancellor of the Duchy of Lancaster said that
“all charities will have to show that they are for the public benefit…an organisation will have to show that it generates identifiable benefits that reach…a sufficiently large section of the public.”—[Official Report, 26 June 2006; Vol. 448, c. 25.]
My concern is that some charities will find it very difficult to demonstrate that.
Does my hon. Friend agree that the good works done by many religious groups depend greatly on their belief? The change would certainly endanger that activity, and could perhaps stop some of the wonderful work being done by our Churches, synagogues, temples, and other religious groups?
Such wonderful work is indeed being done, but not all religious charities undertake it. Some religious charities pray, and that is the key: how can it be demonstrated that prayer is of public benefit? I find it difficult to understand how, rationally, in the face of a reasonably sceptical, but not hostile, group of charity commissioners, a religious organisation that prays can demonstrate that prayer has public benefit.
The hon. Gentleman used the word “pray”, but he did not spell it for us. Would he not accept that there are some people and organisations that prey, and that a distinction must therefore be made between them and organisations that pray? The common-sense approach would be to allow the Charity Commission to consider the question of public benefit.
Curiously, I think that the right hon. Gentleman is wrong. There are of course some who prey. The Scientologists, for example, have not crept through the current definition. They do not count as a charity under the current law, under which religions enjoy the presumption of charitable status. I do not think, therefore, that the fact that some charities may prey is sufficient argument.
I am sure that before the hon. Gentleman moves on he would want to clear up for the House the fact that praying—that is, prayer—is a wonderful activity and is helpful to society at large. I am sure that he would not wish to demur from that point.
My hon. Friend believes that, I believe that and my right hon. Friend the Member for Maidstone and The Weald believes that; I am sure that many right hon. and hon. Members believe it. The question is how that belief can be translated into proof that will satisfy a reasonably sceptical audience, and the charity commissioners may in this context be regarded as a reasonably sceptical audience. I want an answer to that very simple question, and if I get an answer to that very simple question I am likely to be satisfied.
The question whether prayer has benefit in respect of medical treatment has been put to the test in a series of trials—of varying quality, it must be said—and the overall analysis is that there is no significant difference in the prayed-for group and the non-prayed-for group of patients recovering from an operation, regardless of whether they knew that they were being prayed for. If anything, there was a finding, which was not significant, that the prayed-for group did worse. So it can be tested objectively, and so far, at least in that field, there has been found to be no benefit to others, although of course it may help the pray-ers.
I am grateful to the hon. Gentleman, because what he has said is the exact opposite of what the hon. Member for Bishop Auckland (Helen Goodman), who is not in her place, said in Committee. She said that although prayer does not affect people’s propensity to illness, it does improve their recovery rates. The fact that those two completely contrary opinions are held by two perfectly respectable hon. Members illustrates how difficult it will be to demonstrate to the satisfaction of the reasonably sceptical audience that prayer is of benefit.
Does my hon. Friend agree that people in hospital who have the benefit of the hospital chaplaincy service are emotionally comforted by knowing that they are being prayed for? All of us who are churchgoers will know that, most weeks, we shall be asked to pray for individuals who are known to be ill or in distress of some sort, and those individuals derive a very definite benefit from knowing that they are being prayed for; it is an emotional support.
I am grateful to my hon. Friend. I am sure that people do enjoy emotional and perhaps physical benefit from being prayed for. The difficulty is that some people will not know that they are being prayed for—by a closed order, for example—and it is impossible for us, or the Charity Commission, to test the quality of that prayer. The quality of the prayer might have been poor in the case that the hon. Member for Oxford, West and Abingdon (Dr. Harris) cited.
I think that the hon. Gentleman is fundamentally misunderstanding the current status of religion in charity law. Prayer of itself, even under the current presumption, does not qualify a religious charity for charitable status. That is why closed orders are not currently charitable. There is only a presumption of public benefit; in some cases it still has to be proved. So, in restoring the current status he would not be allowing religious charities that only pray to achieve charitable status anyway.
The hon. Gentleman demonstrates that even under the current legislation there is only a presumption. The presumption that we wish to restore is a first step; it is not an open door. It is a presumption. It is rebuttable. If reasonable efforts are made to rebut it, the Charity Commission will, as it did in the case of Scientology, refuse or withdraw charitable status.
I am extremely grateful to my hon. Friend for giving way. Has he any evidence at all that the current workings of the law have caused any difficulty that would be remedied by simply removing the presumption?
No, I have not got any such evidence. I have given the example—there are others—of organisations that have been excluded from charitable status because of the way in which they behave. There are other arguments relating to the Charity Commission’s interpretative paper—shall I say—on how it might exercise its discretion. The position paper “Public Benefit: the Charity Commission’s approach” is secular in tone and states that public benefit must be assessed
“in the light of modern conditions”
and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked. Some religions are quite concerned because they are trying to advance a better world than modern society. If they are to keep up with modern society, in many cases that will mean that they are not to aspire to a higher level, but to descend to a lower level than the ideal.
I have been given the example of a Muslim group that may oppose abortion on the grounds of Islamic teaching. There is also the example of the Scottish chairman of the Muslim Council of Britain being forced out of office in the Scottish Council for Voluntary Organisations because he stated orthodox Muslim views on sexual morality. I am concerned that those modern interpretations will be embraced by the Charity Commission and used as a means of reducing the accessibility of religious organisations to charitable status.
I missed “Thought for the Day”, which I rather enjoy, this morning, but I feel that I have more than made up for it by listening to some of the interesting contributions over the past half an hour. I am inspired by the Prime Minister’s assertion that we are best when we are boldest and it is in that spirit that I want to discuss amendment No. 1. I always think that having tabled amendment No. 1 shows a certain keenness. Together with various progressively minded colleagues in the House, I tabled the amendment in July. I cannot say that I have checked the wording with No. 10, but, in a modest sort of way, it is in the audacious spirit that the Prime Minister calls on his Ministers to display.
The amendment does not attempt to define public benefit; it merely attempts to ensure a robust application of that test of public benefit by the Charity Commission. For the first time, it would give the Charity Commission a statutory base to consider questions of access to public benefit, undue restrictions, and charges—in some cases fairly high charges—made by charities in return for their services. The supporters of the amendment are not trying to say that, for example, independent schools should not be able to claim charitable status. We are saying, as I said on Second Reading, and as we say in Yorkshire, “You shouldn’t get summat for nowt.” The value that independent schools, for example, get from their charitable status is £100 million. We would just like the Charity Commission to be able to encourage them to provide more community benefit for that charitable status.
I congratulate the Minister on being open to discussions on the Bill over the summer and the autumn. I think that he will argue, among other things, that the amendment is unnecessary because the sentiments that it upholds are already incorporated in the concept of public benefit and the Charity Commission will be able, for example, to consider questions of undue restrictions. I want to put three points before the House to explain why I am doubtful about that, and then put three questions to the Minister. Perhaps he can help to reassure me on some of those doubts.
First, there is the legal base of charity law. Without detaining the House for long, I think that most lawyers would say that the available case law is pretty sparse. Andrew Phillips, an eminent charity lawyer, wrote a few paragraphs that sum that up:
“As the Charity Commission lawyers know only too well, at the very best the absence of any inclusion in the Bill of wording indicating the scope of the Public Benefit test will leave the Commission in very uncertain legal terrain when they confront, as they surely will, a few unreformed and intransigent charity hospitals and schools.
Unless Parliament remedies that—and a modest amendment will be enough to give the judges clear discretion—the government are spoiling their own reform, which is potentially a valuable one.
The legal reality, in the absence of that, is that the existing, limited case law, particularly Re Resch, leans in favour of an undemanding public interest test, making clear that there is likely to be sufficient public benefit if, for example, a hospital or school relieves the exchequer and alternative state provisions, or indeed if it provides extra facilities for the user.”
What about the Charity Commission—the regulator—itself? It has had a slightly ambiguous attitude towards my amendment. Andrew Hind, its chief executive, spoke of a “worrying lack of clarity” in the underlying case law, and he confirmed that phrase to me in a conversation just a couple of weeks ago. Geraldine Peacock, who was chair of the commission, said that overriding any public school’s charitable status would not be possible because the Bill would not alter decisions based on case law. However, the new chair of the commission, Dame Suzi Leather, has taken a different approach. She says that she will apply the test robustly and has talked about holding seminars with stakeholders in which there will be a discussion of contemporary social mores, as she puts its, and the way in which public benefit might be defined in the modern day. Although the question of precisely how contemporary social mores would weigh in the balance against the weight of case law was somewhat left hanging in the air at the parliamentary briefing last week, I acknowledge that there are tensions—perhaps creative tensions—in the commission.
What about the voluntary sector? It, too, has taken a somewhat ambiguous position. When the amendment was tabled, Stuart Etherington, chief executive of the National Council for Voluntary Organisations, warmly welcomed it. He said that it would ensure clarity. He said:
“We hope that the government accepts this amendment or comes forward with its own amendment, agreed with the Charity Commission.”
Campbell Robb, director of public policy of the NCVO, went further. As late as September, he wrote in Charity Finance that
“the introduction of a clear and meaningful public benefit test is necessary to uphold public trust and confidence in the charity. To this end we would like to see the Bill amended to see clarity around public benefit, especially in areas where high fees are being charged.”
Hon. Members should remember the name Campbell Robb because a month later the NCVO issued a more ambiguous press release saying that my amendment might be one way of providing the necessary clarity, but that holding seminars and a review after three years, rather than five years, might be another way. That was released on 16 October, and on 18 October, I was pleased to see—it is always good to see public servants doing well—that Campbell Robb was appointed director general of the office of the third sector in the Cabinet Office on a salary of £100,000 a year. I wish him well, but gently reflect on what has happened. Incidentally, I have received a whole host of faxes from voluntary organisations saying that they wished that the NCVO had maintained its original position, including the Royal London Society for the Blind and Community Matters.
I am sure that Campbell Robb will be a very capable civil servant.
I was in the middle of my list of voluntary organisations, which also included the British Trust for Conservation Volunteers and NCH, the children’s charity. Those organisations and many others took a rather different view from the final line of the NCVO.
To answer my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), it is good that civil servants and members and officers of voluntary organisations have close associations with the House and the Government. However, there is a continuing debate in the voluntary sector on how independent of government that sector should be. On reflection, perhaps it was not a good idea that Campbell Robb, director of policy at the NCVO, which at one stage was trying to win concessions from the Government, should already have been on secondment to the Government one day a week. That has started a debate at the NCVO.
To return to the central theme of the hon. Gentleman’s amendment, I am having difficulty in deciding what he is addressing. He has spoken about undue restriction as if that referred to charging and the kind of exclusion to which that gives rise. Will he assure me that the amendment would not affect all the various charitable bodies whose work is directed towards particular groups, whether they have worked in a particular trade or are members of a particular religious group, or, in one way or another, are defined in the purposes of the charity?
This is the argument of unintended consequences. It will be the job of the Charity Commission to decide, case by case, whether a charity is worthy of that status. Nothing in my amendment and nothing that is suggested by the Government will take away from that responsibility. Many charities charge high fees, including one that has been mentioned to me, which deals with autistic children. Clearly, such charities provide a public benefit, and the Charity Commission will be able to make that assessment.
The Minister will no doubt argue that undue restriction is inherent in the concept of public benefit, and the Charity Commission can already make such a judgment, but he cannot have it both ways. He cannot argue on the one hand that the concept of public benefit assumes that the Charity Commission is able to weigh these matters, and on the other hand suggest that if the Bill is more explicit, it will lead to unintended consequences.
Having expressed my doubts about my hon. Friend the Minister’s position, I shall pose three questions to him, which might help to clarify matters. First, does he agree that the Charity Commission can and should consider matters of undue restriction and level of fees charged when it considers whether a particular charity passes the public benefit test?
Secondly, what sort of public benefit should fee-paying schools, especially independent schools, provide to demonstrate their charitable status? Would a token sharing of playing fields, or even an expansion of scholarships on a selective basis—contemporary social mores in all parties are against an expansion of selection—be enough? Should there not be a real sharing of resources and perhaps of teaching time with the wider community? That was suggested by my right hon. Friend the Secretary of State for Education and Skills in a seminal speech in July, when he told the national youth parliament:
“I want to ensure that private schools work more closely with the state sector, sharing facilities and expertise; with the private schools’ greater resources doing much more to improve the life chances of all the children in their community.”
Finally, the coalition between the NCVO and the Charity Commission in July, which fairly unambiguously supported the clause, has somewhat fractured. There is now division, with some supporting my hon. Friend and some taking a different view and supporting the amendment. Sometimes the best one can hope for in politics is to live to fight another day. I hope my hon. Friend is right and the public benefit test will be robust, as it is set out in the Bill. If not, I understand that there will be a review in three years. Will the review explicitly cover the issue of undue restriction and whether the Charity Commission has in practice been able to take that into account when making its determinations?
I have two other things to say. I reflect that it may be only once every quarter of a century that the House grapples with charity law and public benefit tests. If the review in three years shows that there is a need to revisit the concept of public benefit, it will require a particularly determined Minister to do that. I received a letter from Christopher Price, who was a Labour MP in the 1970s. He refers to a Commons Select Committee in 1974 that unanimously recommended a robust test of public benefit. The Committee concluded that that recommendation
“accords both with the spirit in which many of our sixteenth century public schools were founded and with a widespread feeling today that charitable activities should not be manifestly devoted to privilege or exclusiveness. We would therefore expect that our new test of ‘purposes beneficial to the community’ would only admit to charitable status those institutions which manifestly devote the education they provide towards meeting a range of clear educational needs throughout the whole community.”
Those sentiments were present in this House 40 years ago.
I hope that my hon. Friend the Minister is right and that I am wrong. I began by mentioning the Prime Minister, who sometimes says that he wishes that he had gone further with particular reforms. I hope that the Minister assumes higher office in future, when I am sure he will introduce many reforms, but I also hope that in years to come he does not reflect on this, his first big ministerial job, which has given him the chance to reform charities law. I heard him speak passionately in Grimsby on the 50th anniversary of Crosland’s book, “The Future of Socialism”, which touches on charity law and independent schools. When he looks back in years to come, I hope that he does not think, “I wish I had been bolder on that occasion.”
I thank my hon. Friend the Member for Isle of Wight (Mr. Turner), who is leading on this Bill from the Front Bench, for adopting my amendment. I hope that he has set a precedent, and that Opposition Front Benchers will always be keen to adopt my amendments.
I am also grateful to my hon. Friend the Member for Castle Point (Bob Spink). At one stage, it looked as though I would be trapped with the wonderful ladies of the Berkshire women’s institute, and would not be here to move the amendment. My hon. Friend agreed to move it in the absence of an adoption by the Front-Bench spokesman, so I am grateful to him for that, and for the work that he has put in.
Existing law already includes a presumption in favour of religious charities. I am not seeking to introduce something that has never been in the law before, to grant religious charities a privilege that they have never had before or to discriminate in their favour at the expense of everybody else. I am merely seeking to retain in our law something that the Government inexplicably want to remove.
If there were evidence—my hon. Friend the Member for Isle of Wight has already pointed out that there is none—that the part of our law that already makes a presumption in favour of religious charities was not working and was causing difficulty for the Charity Commission, for organised religion or for other charities, I would be much less certain. However, I always work on the principle, “If it ain’t broke, don’t fix it.” That particular presumption has served us for centuries, and I see no reason why it should not continue to do so.
The right hon. Member for Oldham, West and Royton (Mr. Meacher) challenged my hon. Friend the Member for Isle of Wight about the word “pray” and pointed out that organisations such as—although he did not mention them—the Scientologists pray. Some of the more obscure cults also pray—they prey, too—but they are already excluded under existing law, so the point is a red herring and has nothing to do with amendment No. 126, which simply tries to keep in our law a provision that has served us well and has caused no problems.
I have had to ask myself why on earth the Government or the Charity Commission would want to ditch a law that works perfectly well. The agenda is set out in paragraphs 15, 23 and 24 of the Charity Commission report of January 2005, in which the commission states that public benefit must be assessed
“in the light of modern conditions”
and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked. I would suggest that that means that there are already religious charities that would be in danger from the exclusion of the presumption. This is not only about new charities being set up, but existing charities whose status might be revoked.
What exactly are these “modern conditions” and this “modern society” that a charity has to comply with? I do not get the impression that it has anything to do with setting “How Great Thou Art” to rock music. It is far more likely, as my hon. Friend the Member for Isle of Wight said, that modern morals—
In a minute, but not just yet. I will willingly do so when I have finished this section of my speech.
This will be nothing other than the application of modern morals and existing orthodoxy to religion. That is pretty worrying for a charity whose ultimate authority is a 2,000-year-old book—and that is only the New Testament. Many charities are based on much older authority even than that.
I have reason to be sceptical. In the past, I was involved with an application to the Charity Commission for a hospice for babies in the north of the country. It was a very beautiful vision that small, highly disabled children should be able to avail themselves of care in that hospice while their parents obtained respite. Nobody in the world could say that that was not a wonderful idea. The hospice, which was to be funded not by national resources but by charitable donation, was to be run under the auspices of Life, the political wing of which campaigns against abortion. That charitable endeavour, which was, I am pleased to say, ultimately successful, had to go through many hoops to get its status. That alerts me—
If the hon. Gentleman did not understand what I said, I will say it plainly: I will willingly give way when I have come to the end of this section, but not until then.
That alerts me to the fact that the Charity Commission is already heavily influenced by existing moral orthodoxies. If we remove a presumption that is at least some safeguard against that, the prevalence of those existing moral orthodoxies will prejudice applications from some—not all, but some—religious charities. That is the end of my section.
I am extremely grateful to the right hon. Lady for giving way. I have a soft spot for her because she was a generous supporter of Alzheimer’s Society events when I was a director of fundraising there—although that soft spot may have just got a little smaller.
I cannot for the life of me find anywhere in the Bill the phrases relating to modern laws that the right hon. Lady mentioned. As has been demonstrated earlier in the debate, the Charity Commission occasionally gets things wrong. I would be alarmed by such phraseology were it in the Bill, but it is not.
As for Life, if the right hon. Lady is worried about charities that have had a role in trying to change legislation, as Life did, the same applies to many other charities such as Oxfam, which has also had some difficulty in fending off the Charity Commission at various times in its history because it was seen to be trying to change legislation. That is an established part of charity case law; it is nothing controversial.
The second part of the hon. Gentleman’s remarks is wrong. The proposal that I mentioned was straightforwardly for a babies’ hospice. It had nothing to do with the law or changes in it. It was a case of guilt by association. If the Charity Commission is swayed in such a way when a protection is built in, I believe that its removal will enhance that effect, and that religious charities that do not necessarily keep up with “modern society” in some of their teaching will be disadvantaged.
The hon. Gentleman also said that the two phrases that the Charity Commission used do not appear on the face of the Bill. That is true. However, when determining whether the law is right, we need to examine the context in which it has been devised. The two phrases that I cited constituted the Charity Commission’s reasoning for wanting to remove the presumption in favour of religious charities. It has stated its reasoning, which Government Front Benchers have never disowned. We should therefore be alert to how the Charity Commission will apply the law if the protection is removed. I do not believe that the commission should be in the business of adjudicating on religious beliefs. Removing the presumption creates the risk that it will do that.
Surely it is sensible, for the avoidance of doubt in case such matters became actionable before the courts or any tribunal, for Parliament to make its intentions explicit. The law is littered with examples of interpretation being left to judges because the will of Parliament has not been made clear. The amendment would make explicit my right hon. Friend’s intention—and, hopefully, that of the House—so that there will be no doubt about the matter in future.
I will shortly, but I wish to amble a little further before doing so.
I am worried about the inconsistency of ministerial statements about this matter. If a law or a provision in it that has given no trouble is suddenly removed, Ministers’ words become important. On Second Reading, the Parliamentary-Secretary said that removing the presumption of public benefit would “raise the bar” for religious, educational and poverty relief charities. [Interruption.] I see that he disputes that. Let me therefore give him the Hansard reference, which I happen coincidentally to have with me. It is 26 June 2006, volume 448, column 97. However, in Committee, he maintained that
“religious charities and organisations provide public benefit, and I see no reason why that should change.”—[Official Report, Standing Committee A, 4 July 2006; c. 58.]
Either the change raises the bar or it does not. Most of us fear that its purpose is to raise the bar.
I have yet to hear a single argument from anyone against maintaining the status quo. It works. It has never been proved to cause any difficulty. There must therefore be a reason for removing it. If one removes a presumption in favour of religious charities, the inevitable implication is that one is trying to make life harder for them.
The right hon. Lady’s argument has many holes in it, not least the fact that Life is not a religious organisation but independent of religion. So far, she has not presented a single argument for treating religious charities differently from any others. Why should, for example, someone who sets up an arts organisation have to fulfil a public need requirement when a religious organisation does not?
On the issue involving Life, the hon. Gentleman was not following me closely. I was drawing an analogy with enslavement to prevailing orthodoxy. I am saying that that enslavement would be carried over if the protection that currently exists in law were removed from religious charities. I was drawing an analogy; I was not stating that Life is a religious charity.
Secondly, the hon. Gentleman says that I have not advanced a reason why religion should have special protection. I have not done so because that was admirably done by my hon. Friend the Member for Isle of Wight, when he pointed out that religion is special in its nature and is not always easily testable by direct public benefit criteria. Therefore, to have a presumption in its favour is the right starting point. If it can then be shown that the activities of that charity are undesirable—as was the case with Abu Hamza, for example—under existing law, although the protection is still in place, it can be removed. The argument that we are making is that there should be an existing presumption in its favour, because religion is not easily testable on those criteria.
The right hon. Lady is being very generous in giving way, and I think that we are getting to an important point. Fine art might be intrinsically a good thing, just as religion might be—as she and I agree—intrinsically a good thing. But the point in respect of charity law is whether the state should make provision that makes financial benefit for such organisations. That is the point at which it must be shown that there is some public benefit.
The hon. Gentleman adopts a position that I do not share, as he is arguing this point from a particularly secular view. We have in this country an established Church; we already have a very intense relationship between state and religion. I do not know whether the hon. Gentleman thinks that that is a good or a bad thing—I do not know his views on the subject.
I am aware that the hon. Gentleman was ordained in the Church of England, but he left it for this place, which says a lot about his priorities. Although I must say that I left the Church of England in my own way, as well.
What I was saying to the House, in response to the hon. Gentleman’s query, is that it is extremely difficult wholly to divorce state funding from religion in a situation such as that which exists in this country, where there is already an established Church, and there is a long tradition and a lot of law, other than this one, that entwines state and religion.
Can anybody show me one good reason why this provision should be removed—one instance of failure in the application of this benefit? If anybody can show me one good reason for abolishing something that has always worked, and which nobody was worried about until the Charity Commission started waffling on about modern conditions, I might change my mind. But I have heard no good reason, and I believe that there is a great deal to be said in favour of keeping it in our law.
It is always a pleasure to follow the right hon. Member for Maidstone and The Weald (Miss Widdecombe) in debate. As her contribution and that of my hon. Friend the Member for Selby (Mr. Grogan) have demonstrated, the issue of public benefit goes to the heart of what the Bill is about. The measure under discussion is easily the most significant change made by the legislation, and I also think that it is the most controversial. It is certainly the topic on which the House and the other place have expended most energy during the tortuous progress of the Bill over the past few years. Therefore, it is the issue that demands the greatest clarity.
As the Joint Committee that I chaired to examine the Bill in draft form put it:
“Since the purpose of the Bill, according to the Minister”—
at that time, that was my hon. Friend the Member for Slough (Fiona Mactaggart)—
“is to protect the charity brand, it is important that any new law on charity must properly deal with the issue of public benefit.”
Amendment No. 1, tabled by my hon. Friend the Member for Selby, is an honest attempt to do just that—to clarify what is meant by public benefit in the Bill. However, I do not think that his amendment is right or workable. My hon. Friend the Minister, who has already gone some way toward addressing the concerns not just of Labour Members or Members of this House as a whole, but of both Houses, will need to go a bit further in his concluding remarks. He will need to set out how the Government intend the public benefit test to operate in practice. This is a significant change not just for religion, but for the whole of the charitable sector.
What is not in dispute—among Labour Members, at least—is the positive benefit that accrues from the introduction of such a test. I have to say, with all due respect to the hon. Member for Isle of Wight (Mr. Turner), that I am at a loss to understand what the Opposition’s position is on public benefit, having listened at length—I also listened to him at length on Second Reading—to his somewhat tortuous and occasionally toe-curlingly embarrassing attempt to avoid the question of whether the Opposition support the concept. If he gets an opportunity to do so, perhaps he will clarify the Opposition’s position. If I may, I shall offer a small piece of political advice. I should have expected a party that nowadays seeks to claim that mantle of modernity—notwithstanding the concerns of the right hon. Member for Maidstone and The Weald about the modern world—to welcome with no ambiguity what most people think is a long overdue modernisation of charity law.
If we can get the public benefit test right, as I believe we can, it could clarify an area of charity law that every Member knows fine well has been greatly disputed for many centuries, including in the courts. Perhaps even more importantly, it would introduce a healthy dose of common sense into a complex area of charity law. We have to face a very simple fact: what the public think of as a charity and what we define in law as a charity are sometimes at variance. That is why, when asked, only 15 per cent. of the public believe, for example, that a charity such as Tate Modern is indeed a charity. Even fewer believe that Eton is, or indeed should be, a charity—but it is.
So there are issues that we must address, not least in order to sustain what my hon. Friend the Member for Slough rightly called the charity brand, and its reputation now and in future. To be frank, it is in any case right that charitable status, since it accrues significant benefits, should be earned and not simply assumed. After all, organisations that are charities enjoy high levels of public support precisely because they are assumed to provide a meaningful benefit to the public. So in that sense, the good name of charities is at least as important as their good works.
There is a further important consideration—a financial consideration—which my hon. Friend the Member for Rhondda (Chris Bryant) touched on in an intervention a moment ago. Charities do not just receive generous donations from the public individually; they also receive pretty generous financial support from the public collectively. For example, in the latest tax year charities attracted tax relief worth almost £1.9 billion, which is a pretty significant pot of public expenditure. Nowadays, nobody—perhaps with the exception of the hon. Member for Isle of Wight; I do not know—expects public money to be doled out like a free good. It rightly comes with some strings attached. The public have the right to know what they are getting out for what they are putting in. Charities cannot be exempt from those disciplines.
Can the right hon. Gentleman not see that there is an inherent difficulty in applying the concept of earning charity relief to religion? The situation is more straightforward in education, for example, where the extent of public benefit can be shown. That is different from a state agency’s having to decide which religious groups earn, by virtue of their theological views and actions, the status of a charity.
I understand and respect the right hon. Gentleman’s point of view on the issue. As I shall say in a moment, however, it is a complex question in the areas that were previously exempted, and that are about to be unexempted if the Bill is passed, most notably in the case of education.
If we can properly apply the public benefit test, it can help to assure the public that any organisation acquiring charitable status and, therefore, significant financial resources, is providing some identifiable, and preferably quantifiable, benefit, notwithstanding the difficulties in doing that.
I freely confess that I have not had the opportunity of studying the Bill to the extent that I would have wished or should have done. Clearly the right hon. Gentleman is knowledgeable about it, so may I ask him one question? Today, I happen to be wearing the tie of the Army Benevolent Fund, and I note that one of the charitable purposes, under paragraph (l), is
“the promotion of the efficiency of the armed forces of the Crown”.
I think that the test that he has applied of what the public would regard as worthwhile would include the Army Benevolent Fund, but I am not sure whether it is connected with the efficiency of the armed forces. Given that he was in such an influential position to scrutinise the Bill, can he reassure me about that?
I am not sure that it is my job any more to reassure anyone. That is my hon. Friend the Minister’s job, and it is a question for him. I do not know whether he feels reassured by my contribution. In passing, I remember—I do not know whether this reassures the hon. Gentleman—that the Joint Committee took evidence from a variety of Army-related and military-related charities, and we tried to address some of the concerns that they expressed in our recommendations to Government. Incidentally, the Government addressed many of our recommendations in the Bill.
Although much of the debate has centred on the issue of religion, I think that the trickiest issue, certainly politically, has been that of charitable private schools and hospitals, which sit in the middle of a pretty uncomfortable triangle. On one side, they are bound by their obligations as charities, because they have charitable status. On another side, obviously, they owe obligations to the fee-paying parents and patients who provide the overwhelming bulk of their income. On the third side, they have wider obligations to taxpayers, who fund the estimated £100 million-worth, I think, of tax relief that they enjoy as a consequence of their charitable status. Some may have seen the Bill as an opportunity to resolve those tensions by exacting some sort of ideological revenge on such private schools and hospitals by stripping them of both their financial benefits and their charitable status. I do not think that that is the intention of my hon. Friend the Member for Selby, and it certainly is not mine. I am a long-term advocate of partnerships between the public and private sectors.
It is true, however, that charities that charge fees for their services have a special obligation to prove that they can none the less provide a wider public benefit. I, for one, very much welcome the initiatives that many private schools, for example, have taken in recent years to develop meaningful partnerships with state schools. The problem is that while some have an exemplary record, others, sadly, do not. Under the current law, however, all benefit equally from charitable status. That, as Mr. Jonathan Shepherd of the Independent Schools Council—which represents more than 1,000 private schools in this country—wrote in a letter to me dated 22 June,
“has sheltered lazy charities because they did not have to demonstrate public benefit.”
If we get the new public benefit test right, rather than using it to drive a wedge between public and state schools, I believe that it could help drive them still closer together. The worry that some have, including my hon. Friend the Member for Selby and those who have put their names to his amendment—to some extent I share it—is that without a clear definition, public benefit could end up being interpreted as requiring nothing more from private schools or hospitals than the offer of some form of indirect or tokenistic public benefit. For example, they could argue that they save the taxpayer money by educating children or treating patients who would otherwise be taught in state schools or treated in NHS hospitals.
Surely meaningful public benefit must be more than that—and I would argue that it must also be more than the odd sharing of a classroom here or a playing field there. Ideally, it should be a lasting partnership that enables many more state school pupils, regardless of background, aptitude or ability, to benefit from the expertise and resources that private schools often, although not always, have at their disposal. That, after all, is the declared purpose of both Government policy and private schools, as represented by the Independent Schools Council.
The right hon. Gentleman seems to be saying—and I agree with him—that some independent schools do not offer very much. Frankly, a rowing trench near Slough is not contributing greatly to public education. But it seems to be Ministers’ position that the public benefit test is not changed by the Bill, and that that what is being established is existing case law. Is that the right hon. Gentleman’s understanding?
I shall come to that, and I have a point or two to put to my hon. Friend the Minister about it. First, however, let me quote another part of Mr. Jonathan Shepherd’s letter. He wrote
“indirect public benefit is not enough on its own: there must be direct benefit to the public or to a significant section of it.”
So we are all agreed. The Government agree; I think that now, under its new leadership, the Charity Commission agrees; and the Independent Schools Council agrees. The problem is that persuading the sort of recalcitrant school that the hon. Gentleman has identified, or for that matter a recalcitrant private sector hospital—I have to say that there are more than a handful of them if the evidence given to the joint Committee is anything to go by—persuading, that is, the recalcitrant few rather than the noble many, to demonstrate direct and public benefit in exchange for the advantages that they gain from charitable status, requires any test to be clear and understandable to all concerned. At present I am not convinced that the test is clear and understandable, and I am sure that that is what led my hon. Friend the Member for Selby to table his amendment.
The problem with the amendment is that in seeking to introduce clarification, it risks causing more confusion. Although my hon. Friend cited parallel Scottish law, the wording of his amendment is subtly but significantly different from the form of words used in Scotland. The new charity law there refers to the need to ensure that charities are not “unduly restrictive” in the way in which they guarantee public benefit, so allowing a balanced consideration of benefits against disbenefits. The amendment, however, refers to “any undue restriction”, which I think would make such a balanced judgment more difficult to achieve. Indeed, I should be surprised if that wording did not cause a learning disability charity that none the less charged for its services to find itself failing the public benefit test, thereby risking the loss of its charitable status. I am sure that my hon. Friend would not want ambiguous wording to produce such a result.
I do not believe that my hon. Friend’s amendment does the trick. My hon. Friend the Minister has moved the Bill forward substantially, but although the proposal to review the operation of the law after three years rather than five is welcome, I do not think that it does the trick either. To me it seems rather like closing the stable door after the horse has bolted.
The Bill gives us an opportunity to deal with charity law. My hon. Friend is right: it is a once-in-a-generation opportunity. It is a rare event for charity law to be changed by Parliament—I believe that the last occasion was 15 years ago, and the penultimate occasion was probably 20 years before that—and unless my hon. Friend knows something that I do not know about proposals for legislative changes in the future, I should be surprised if we are given another crack of the whip in the imminent future. So we need to get the public benefit provision right now.
That is what led the Joint Committee to conclude that
“while a detailed statutory definition of public benefit would be too inflexible, nonetheless there is a need for a more explicit definition of public benefit in connection with the Bill”.
And of course clause 4 requires the Charity Commission to issue guidance for that purpose. The problem is that we do not have the guidance before us today, so it is difficult for the House to know exactly what it is being asked to support.
Indeed, I was struck by an article by Dame Suzi Leather, the new chair of the Charity Commission, in The Guardian last week in which she argued that the public benefit test was a “slippery concept”. That is not to say that, having spoken to Dame Suzi, I am in any doubt about her determination to see the public benefit test applied vigorously—a view that the National Council for Voluntary Organisations interestingly now shares, as my hon. Friend the Minister knows. Indeed she says in her article that fee-charging charities could be expected
“to assess and report the value of the tangible benefits they bring as well as the value of their tax breaks.”
I welcome that. It is a significant step towards clarity in how the public benefit test will be applied, but there is many a slip twixt cup and lip, as the House knows. That is why I hope that my hon. Friend the Minister, in replying to the debate, can give a very clear indication as to whether he agrees with Dame Suzi’s proposal and how, more generally, he expects public benefit to operate in practice.
Short of a Government amendment, which we do not have, it is important for the Minister to put the Government’s intention on the record, not least so that the Charity Commission and the courts are left in no doubt that public benefit is intended to be direct and meaningful. If he can do that, he can kill several birds with one stone. First, he will bring clarity and certainty—important for the whole sector, which we want to grow—to a vital modernisation of charity law. Secondly, that could help to foster more real partnerships between the public and the private sector in health and education, for the benefit of both patients and pupils. Thirdly, he will be able to offer many of us the assurances that we need to give our wholehearted support to this part of the Bill, just as we already do to the rest of it.
This is a good Bill, which is long overdue. The introduction of a public benefit test is a very good thing, which will make a profound difference to the operation of the charitable sector. I welcome what the Minister and my right hon. Friend the Chancellor of the Duchy of Lancaster have done thus far; I just ask them to go that one little bit further.
As the right hon. Member for Darlington (Mr. Milburn) has just said, this is a very good Bill and the concept of public benefit is central to it. Rather than citing older Charity Commission reports, it is more useful to consider the commission’s current guidance on how it plans to implement the Bill in future. The commission’s website, which is a fertile source of material for this debate, contains a briefing, issued this month, on the approach to public benefit and how it will be treated. The commission promises to apply the public benefit test robustly, and that is welcome. Perhaps I detect the hand of the Minister in that form of words, which is welcome.
The guidance also contains some slightly more alarming words, which underline the fact that the issue is a moveable feast—a slippery concept, as the right hon. Gentleman put it. For example, the briefing contains what appears to be an entirely new concept of the need for continuing improvement. It states:
“Our aim will be to ensure both that charities demonstrate public benefit in what they do and, beyond that, continue to increase the value they bring to the communities they serve.”
That seems to go beyond the Bill and add a dangerous new dimension, because it puts an obligation on any charity to prove that it has satisfied the public benefit test and later to prove that it has increased the public benefit. That is perhaps a similar example to the one cited by the right hon. Member for Maidstone and The Weald (Miss Widdecombe) on modern laws, with the Charity Commission going a little further than the Bill, and also perhaps failing to issue the best possible guidance. The Minister with responsibility for the third sector will have to be on his mettle in managing the implementation of the public benefit test.
The concept is slippery. As the right hon. Member for Darlington also noted, there are areas of spectacular confusion, not least in respect of whether the Bill changes the law on public benefit at all. Many people—including Liberal Democrats in this House and the other place—argue that it does, but my noble Friend Lord Phillips said, in a letter today to The Guardian:
“Many leading charity lawyers beg to differ. Without some leverage in the bill, the judges are not free to innovate, especially as the leading case law endorses the status quo, where the school or hospital can claim charitable status if it saves the taxpayer money or provides extra facilities unavailable in the state sector.”
I confess that I am not a lawyer. Although my interpretation does not entirely match his, my noble Friend is an extremely eminent charity lawyer and the fact that he thinks that that is an arguable case shows that the Bill in its current state leaves matters very unclear. The hon. Member for Selby (Mr. Grogan) said that the NCVO and the Charity Commission appear to be shifting their ground slightly about whether further clarification is needed. Earlier this year, the NCVO issued a briefing that stated:
“According to Guidance published by the Charity Commission, charities that charge high fees for their services merely have to show that ‘the less well-off are not wholly excluded from any possible benefits, direct or indirect’.
NCVO does not believe this goes far enough … However, the Charity Commission itself has said that this is a complex area of the law and it would like further clarification from Government on this issue and particularly in relation to fee-paying charities.”
I am not sure that I follow what the hon. Gentleman means. It is reasonable for the commission to want to know the Government’s intentions in respect of forthcoming legislation, and that is what we are trying to establish in this debate.
The current Charity Commission briefing states:
“We need to articulate and explain the concept of public benefit in a way which is consistent with the law and clear to the public.”
The fact that the briefing itself does not do that shows that matters as they stand are not entirely clear.
My hon. Friend is demonstrating his usual skill, but some of us find the Bill very unclear. The House is delegating the most fundamental concepts to the charity commissioners. That leaves dissatisfied those of us who believe that we need a more robust approach to public benefit in respect of schools and hospitals, while those who worry that the longstanding acceptance of religious charities is threatened remain concerned because the concept behind the proposals is as vague as he has set out.
As ever, my right hon. Friend makes a good point, and he may have some sympathy for the much more detailed amendment that I tabled in Committee. It was based on the established Scottish law, which offers a much clearer way forward, but it was not accepted and we are now debating the more modest proposal introduced by the hon. Member for Selby. However, amendment No. 1 at least contains the useful phrase “undue restriction”, which makes it clear beyond doubt that the bar is being raised somewhat and that all charities would have to earn their charitable status. The amendment would require the word “charity” to be unequivocal, and that no charity could take advantage of a status quo that allows all sorts of bodies to retain their charitable status without having to change in response to the Bill.
I am not sure whether the hon. Gentleman supports amendment No. 126. If the bar is being raised for charities that want the advancement of religion, would it not be a good idea for him to support the amendment, so that religion does not have to pass that test?
I thank the hon. Gentleman for that question, and I shall come to amendment No. 126 in due course.
I was about to say that I have consulted some of the outstanding private educational establishments in my constituency, such as Cheltenham Ladies college, the National Star College for Disabled Youth, Cheltenham college and Dean Close school. I tested out the amendment to see whether those institutions felt that it represented some great threat to their charitable status, and they all thought that raising the bar was a good idea. Given their excellent public service record of sharing facilities with the wider community, they did not believe that it would damage them, and they also believed it would helpfully raise the bar for smaller, perhaps less reputable, organisations that were more or less indistinguishable from businesses in their approach. I am not saying that there is a large number of them, but raising the bar on public benefit would help to clarify that such organisations need to act charitably in order to earn the considerable benefits of charitable status.
There is a good example in my constituency of a small private nursery and pre-preparatory school that underwent some anxiety about whether it would pass a stricter public benefit test. It wondered whether it would be able to share any facilities with the wider community. It was a problem, as it did not offer scholarships in the requisite age range, so it had to think hard about the threat of a stricter public benefit test. In the event, it decided to share music teaching with neighbouring state schools. That seems an excellent result and it happened on account of the threat of a test stricter than the status quo.
The question remains whether the Bill in its present form contains such a test. I do not believe that it does, but I would be interested to hear the Minister’s comments. I wonder whether he will say that there are sufficient incentives, either in law or from the commission, to encourage organisations and institutions such as that school to improve the quality of their public service.
On amendment No. 126, I listened carefully, as ever, to the right hon. Member for Maidstone and The Weald. One of the Bill’s central principles is that it removes the current archaic definitions of charitable purpose, which date back to the mediaeval era and are simply no longer fit for purpose—though I hesitate to use that rather new Labour phrase. The right hon. Lady said, “If it ain’t broke, don’t fix it,” but the overwhelming consensus in the charity sector is that current charity law is broke, at least to the extent that the Bill deals with many areas of charity law and is designed to reform and improve them. That is precisely why it has had such widespread support—[Interruption.] The hon. Member for Castle Point (Bob Spink) shouts out “Not religion” from a sedentary position, but I refer him to his colleague in the other place, Lord Hodgson of Astley Abbotts, who said in support of a level playing field for all charities:
“What we have achieved in the Bill is a delicate balance as regards the public benefit issue. Therefore, for the noble Lord, Lord Borrie, to talk about blanket advantages in the circumstances is not right. As the noble Lord, Lord Phillips, said, we are in fact creating a level playing field here, in which all charities have to meet a public benefit test, no matter what their purposes are, and must do so on a continuing basis.”—[Official Report, House of Lords, 28 June 2005; Vol. 673, c. 154.]
There is, in effect, no divine right to charitable status. The National Society for the Prevention of Cruelty to Children, the Royal National Lifeboat Institution, the Royal British Legion, St. John Ambulance, Save the Children and so forth will all have to pass a public benefit test, and so will the Churches.
Some have put forward thoughtful arguments suggesting that all this will prove detrimental to the Churches. One such argument is that religion does not have a provable public benefit. That is, in effect, arguing that because the charity or organisation is expected to fail the test, it should not have to take it. As the hon. Member for Rhondda (Chris Bryant) and others have mentioned, it is equally difficult in some circumstances to imagine how art, sport or even education can provably increase public benefit—but that is the purpose of case law and the purpose of the Charity Commission in giving guidance.
Indeed, help was provided by the example of humanist organisations earlier. They achieved charitable status in the end by suggesting that they aided the mental and moral improvement of mankind. My guess is that most religious charities would be able to argue robustly that they demonstrated comparable public benefits. Most accepted world religions set out the golden rule of doing unto others as they would expect others to do to themselves. That is clearly to the benefit of the wider community. The example of the Church of Scientology was also mentioned earlier. It was rejected under current law by the skin of its teeth, only because it did not have an act of worship. Without the public benefit test, there would be a real risk of religious organisations that were undoubtedly religious but harmful securing charitable status.
The right hon. Member for Maidstone and The Weald asked for a specific example of an organisation that might fail the test. I offer her Satanism, which, under current case law, would meet the definition of a religion. It unambiguously has an act of worship and a supreme being and it obeys the supernatural principle that the hon. Member for Isle of Wight (Mr. Turner) supported earlier, but I am sure that it would not pass a public benefit test.
The hon. Gentleman is theorising about Satanism. It has been around for a long time and the Charity Commission has never been remotely tempted to give it charitable status. Can he name one occasion when, under existing law, there has been an unsatisfactory outcome, either of a cult or something like Scientology gaining status, or of a genuine charity not receiving status, under that presumption? Can he name one case?
If the right hon. Lady is referring to existing case law she should be reassured, because the charity commissioners have made it explicit, first, that their priority in testing public benefit is fee-paying organisations—as is clear in their guidance and has been the subject of much debate—and, secondly, that existing case law will guide their hand in judging the public benefit test. Under existing case law there is no evidence whatever that the Commission will become an army of political correctness trying to persecute the Churches.
I am grateful to the hon. Gentleman for giving way again, because he has not answered my question. Under the existing provision, can he give me one example of either something like Scientology succeeding—I am aware that actually it did not—or something that should have succeeded and did not? Can he give me one instance of the law—the presumption in favour of religion—not working properly?
To give the right hon. Lady an absolutely straight answer, no I cannot give the precise example for which she asks, but that does not change the argument for a level playing field for all charities, especially as so much of it is based on existing case law. She should be reassured by the fact that I cannot find an example.
Undue restriction, as proposed by amendment No. 1, will not threaten religious charities either. I know of no religion that is closed to converts, so there would be no undue restriction for religious charities. The fundamental principle is that this is in large part an excellent new Bill, which will establish a level playing field on a contemporary basis for all modern charities.
I want to pose a problem for my hon. Friend. The Charity Commission decides to test the law on public benefit on a small Calvinist sect that believes that there is a set number of elect people. In such a case, a small group of people, who had enjoyed charitable status for a considerable time, and whose numbers might be declining, thus falling foul of another Charity Commission definition, would have to go to judicial review against the Commission. That is the problem with producing such a vague concept, which is difficult to apply in such cases.
It is a pleasure to follow the hon. Member for Cheltenham (Martin Horwood), who is extremely knowledgeable and made a good contribution in Committee. I am pleased to respond to my hon. Friend the Member for Selby (Mr. Grogan), who by being modestly bold has created the opportunity for an important debate.
Members on both sides of the House will be pleased about the appointment of Campbell Robb as director of the office of the third sector. From his work in the House with MPs from all parties, he knows that the role of the office of the third sector is not just to do with structures or bureaucracy; it covers the relationships between the Government, the third sector and Parliament. It is a welcome development.
Many people in the charity sector and Parliament have engaged with the question of what public benefit is, and have been tempted to attempt a more precise definition in law. I, too, have been tempted down that road; we discussed it in Committee when the Minister engaged positively with the issue. He has kept his promise to give careful thought to all the options. The trouble is that it is always possible that the courts—or, in future, the charity tribunal—will be limp in how they interpret the intentions of Parliament. Our experience is that case law in the field of charity is sparse. For that reason, MPs such as my hon. Friend the Member for Selby understandably ask what the point is of removing the old presumption and requiring that public benefit be demonstrated clearly by charities, particularly those that charge significant fees for entrance, participation or services, if the requirement does not bite until a judgment is reached in a test case in 158 years’ time.
Either we must be sure that the law and Parliament’s intentions are crystal clear, or we must be sure that those intentions will be given effect robustly and effectively by the Charity Commission, which must work sensibly and progressively but without undue delay. The real downside of choosing to include a more stringent definition is that it would create a risk of unintended consequences. An enormous amount of legislation on the statute book was intended to give tight and precise effect to a definition or requirement, and was supposed to provide limpid clarity, but turned out to be doubtful at best, or did not stand the test of time. Animal welfare legislation has been a running sore for just that reason.
Let us face it, some forms of words are precise and clear, but require constant reinterpretation. In my view, far from being a weakness, that is a strength. “Who is my neighbour?”—the words resonate down the ages, and after 2,000 years they are still clear and precise, yet they are as challenging as they were to the young lawyer to whom they were directed. They provoke debate just as they did when they were first spoken, and they have required careful interpretation in every age. The same applies to the words “public benefit”, and that is why I strongly resist both the introduction of a more precise definition, and the amendment with which my hon. Friend the Member for Selby provoked this constructive debate.
Our discussion has been worth while, but it has shown that the simple test of public benefit, if interpreted and applied in the existing legal framework in a modern context, is the right and simple way forward. Clearly, the meaning of “modern” will be different in decades and centuries to come, but the principle is clear. The question is whether the public benefit test will be applied robustly to charities that have been able to hide behind the historic presumption, or whether they will ignore the challenge. The right hon. Member for Maidstone and The Weald (Miss Widdecombe) is no longer in the Chamber, but I would like to say to her that, as a Christian, I think that Christian charities should be subject to the same test as the rest, and we should welcome that. The use of the public benefit test will depend on how the Charity Commission interprets the law, and not on how Ministers spell it out, although the Minister’s reply in this debate will clearly be important in setting out the basis of Parliament’s view.
When it comes to implementation, the Charity Commission’s view will be crucial. The commission is accountable to Parliament and the public for the way in which it interprets its responsibilities. I asked the chief charity commissioner how she and her advisers envisage their remit once the Charities Bill reaches the statue book. She had already spelled out her response to the Bill in the article referred to by my right hon. Friend the Member for Darlington (Mr. Milburn), and I think that she correctly interpreted Parliament’s intentions. I particularly liked her comment that the public benefit requirement is a call to innovate. She is clearly using the Bill as an opportunity to allow not just Government, Parliament and the commission, but the sector itself, to explore ideas and principles vigorously in a modern context. It is important to mention the brief for MPs, which should be lodged in the Library for future reference, because the notes on how the public interest requirement will be interpreted by the commission are extremely important.
It is clear that organisations will not suddenly be required, overnight, to demonstrate that they provide public benefit, or to rethink their priorities, but there is a clear expectation that charities that previously benefited from the presumption will engage with the issues and, through their attitudes and actions, respond to the change in the law. They will need to show that they provide public benefit but, to be fair, many charities that operate under the existing presumption already demonstrate that they provide public benefit. That is the unwritten deal, and the public clearly understand that charitable status provides reward and encouragement for those who provide public benefit. Each charity must simply ask itself whether it provides public benefit in a way that justifies its charitable status, and whether it shows that benefit clearly, so that the requirements of transparency and accountability are met.
Indirect benefit is not likely to be enough in itself. The Charity Commission believes that the law, as it stands, makes it clear that it will not normally be possible to demonstrate public benefit through indirect benefits alone, such as savings in public expenditure that result from the charity’s provision of education or health services. It is therefore clear that the benefit to the public must generally derive from the organisation’s primary charitable purposes, rather than any secondary activity. Charities that were previously presumed to provide public benefit must show that they satisfy the law, and the Charity Commission must be satisfied that they have done so. Charities that charge high fees for their services must take active and transparent measures to ensure that someone who is eligible to benefit from those services has a reasonable chance to do so. It is sensible that charities should have time to adjust, but it is reasonable to expect them to engage with the changes.
The commission—not the Government—will make the final decisions about charitable status on a case-by-case basis. Their decisions will depend on the circumstances of individual fee-charging institutions following the criteria that I have described. If, after the Bill’s implementation, the Government’s intentions on public benefit are not fully reflected in practice, a review of the legislation must be instigated as soon as parliamentary time allows. In any event, the Minister has made it clear that a review of the public benefit requirements will be initiated three years after the Bill’s implementation.
I asked the chief charity commissioner, Dame Suzi Leather, whether I had interpreted correctly the Bill’s requirements. Would the commission be reasonable, but firm and robust, in ensuring that all charities fulfil those requirements in their day-to-day performance in a realistic period of time? She answered, “Yes”. Only the presumption was changing, and organisations that have not grappled with the issues until now, because they were not required to do so, must show they have done so. The change will not be new for the many charities that have already adapted to the change, which is welcome. All charities, however, must adapt now that the change in the law has become clear.
The commission has published on its website an indicative timetable outlining the steps that it would take to act on the public benefit requirement following Parliament’s approval of the Bill. That indicative programme makes clear the commission’s intentions, and it should be available in the Library so that hon. Members can refer to it. Provided that the Bill completes its passage in the expected time scale, in November, the citizens’ forum will begin research on public perceptions and expectations, and in January next year, the commission will launch a three-month consultation. Next September it will begin a pilot assessment of public benefit, producing detailed guidance for specific types of charities and consulting on the guidance, and in summer 2008, it will report progress to Parliament.
The chief charity commissioner stated her understanding that the Bill gives the commission a clear role in ensuring public trust and confidence in charity. I believe that that answers the problems raised by my hon. Friend the Member for Selby in his amendment. The commission regards the public benefit requirement as a key component that makes a clear and explicit link between public benefit and charitable status, and which strengthens public confidence in the charity sector. It will apply the public benefit test rigorously to ensure that that goal is achieved, and fee-charging charities will be expected to demonstrate how they provide benefits.
I accept that my hon. Friend the Member for Selby wants to gain as much as possible from our debate, but I am sure that the response from the chief charity commissioner, the commission itself and the Minister will allow him to reach the right place, which is not only as far as the Minister could go but as far as he should go.
The hon. Member for Selby (Mr. Grogan) will agree that there are none so generous as Yorkshire folk. He will forgive me for providing the more common version of the Yorkshireism that he cited to the House—“If tha does owt for nowt tha does it for thissen.” That is the opposite of the selfless work undertaken by many volunteers for the wonderful charities that we are seeking to control in the Bill.
Amendment No. 126 is straightforward as it simply retains the presumption that the advancement of religion is in the public benefit. The right hon. Member for Darlington (Mr. Milburn) mentioned common sense, and most people in the country would regard that proposal as simple common sense. However, the Bill would remove that time-honoured presumption and therefore represents a major change, and I suggest that it could seriously damage religious liberties and our traditions and even damage our benevolent and tolerant society.
Moreover, the clause is entirely unwanted, at least by the majority of the public, who despise political correctness. Under the law as it stands, many worthwhile religious charities have been registered in the UK, and as my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) said, “If it ain’t broke, don’t fix it.” If a charity, even a religious charity, has been acting improperly and is found not to be acting for the public benefit, it can be deregistered. That has happened plenty of times, such as in the case of Abu Hamza and the Finsbury Park mosque. Under the existing statutory regime, the Charity Commission has successfully regulated religious charities and does not, nor should it, challenge or question their underlying doctrine—but that is what the Bill will inevitably lead to, and it is wrong. The proposed, more aggressive approach of the Bill is unnecessary and could be yet another step towards destroying the traditions of our society.
As we have heard, the commission states unequivocally that the public benefit must be assessed
“in the light of modern conditions”
and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked. It is the word revoked that is so challenging and worrying. It means that the intention is to remove charitable status from some religious charities, and I wonder whether the Minister would spell out exactly which ones he is thinking of.
Christian charities, of course, take guidance from the Bible, written in ancient Israel, but I happen to believe, and so do many people in the House and in the country, that that Bible is still as relevant today, and its words as meaningful today, as they ever were. The Bill gives the commission massively increased powers. The current commissioners may be good people, but how can we be sure that they will always be benevolent and reasonable in the future? They will be required to make very subjective judgments about the ethos and ethics of different religions and religious activities. As there is nothing in the Bill that sets out any objective criteria for their judgment, their judgments will be subjective. How can they decide which religious groups are “beneficial” and which are not? On what criteria will they base that decision?
In any event, why should the commission—or, indeed, the law in interpreting the Bill—be rational and consistent when even the Government are not rational and consistent in proposing the Bill? The Government’s statements on this issue have been confused and contradictory. As we heard from my right hon. Friend the Member for Maidstone and The Weald, on Second Reading in this House the Minister said that removing the presumption of public benefit would “raise the bar” for religious, educational and poverty relief charities, while in Committee he maintained that
“religious charities and organisations provide public benefit, and I see no reason why that should change.”—[Official Report, Standing Committee A, 5 July 2006; c. 58.]
Those statements cannot both be true. So the Minister has himself been inconsistent in presenting the arguments for his own Bill.
Time is short, so I shall curtail my remarks. I believe that we should not inflict this clause on good people who are simply serving their communities through a religious charity. Political correctness must not become the new test of charitable status. I commend amendment No. 126 to the House.
I shall speak for no more than a minute.
My anxiety about the Bill is that, in the best of parliamentary traditions, we have confronted an issue, and then avoided it and devolved decision making to another body. That is why I welcomed the amendment tabled by my hon. Friend the Member for Selby (Mr. Grogan) and wish that he had pursued it. It would have been a good test of the power of prayer—unless the Minister fell on his knees.
Because this is the only opportunity that we shall have at this stage to influence the guidance, I would welcome it if the Minister were to read into the record his concurrence with the views of my right hon. Friends the Members for Cardiff, South and Penarth (Alun Michael) and for Darlington (Mr. Milburn) and my hon. Friend the Member for Selby, because in that way we shall assist in shaping that guidance.
The second critical stage will be when that guidance is published in 2008. It would be useful to have an assurance that the guidance will be brought back to the House, at least for a parliamentary debate in which we can again express our views. If there is a promise of a three-year review, it would be useful for that debate to trigger the review, so that it becomes a parliamentary review rather than one that is again devolved or sent off to a separate commission. In that way, we will have an assurance that this is not a once-in-25-years review of the whole process, but an ongoing process in which Parliament will have a direct and meaningful role.
It has been an interesting debate with contributions from distinguished Members of the House, including the right hon. Member for Maidstone and The Weald (Miss Widdecombe), my right hon. Friends the Members for Darlington (Mr. Milburn) and for Cardiff, South and Penarth (Alun Michael), and other hon. Members. In the time that I have available, I want to deal with both amendments.
First, I want to bring together the questions of religion and of education, and the central burden of the remarks made by the right hon. Member for Maidstone and The Weald. She asked, “Why?” Why should we have the principle that all charities must pass the test of public benefit, without a presumption in favour of a few? My answer to her is: fairness. Whether we are talking about the National Society for the Prevention of Cruelty to Children, Eton college or a religious charity, all should have to pass the public benefit test. That seems a pretty basic principle.
The right hon. Lady might say, “I agree with your principle, but I think that the practice is going to overwhelm the principle. I am really worried about what this will mean for religious charities.” That was the second part of her remarks. I hope that I can reassure her on those points. First, I want to reassure her that removing the presumption that the advancement of religion provides public benefit is not intended to lead to a narrowing down of the range of religious activities that are considered charitable. Nor is the process intended to be onerous for individual religious institutions.
The right hon. Lady talked about social mores. The hon. Member for Cheltenham (Martin Horwood), not for the first time in my experience, made an excellent speech on that point. Case law is the foundation of what we are debating in the Charities Bill and of the legislation on which we are moving forward. We have not put it all on the record in the Bill because that is simply not possible—that is the complexity of charity law. Yes, modern social mores play a role—the courts have determined that—but the foundation is case law.
I appreciate that it will not be a formal Pepper v. Hart statement, but will the Minister say briefly whether it is his understanding that the fact that a particular religion teaches a traditional and certainly non-modern sexual morality could never be held by the Charity Commission to disqualify that religion from charitable status? It is as simple as that.
I can certainly give the right hon. Lady that assurance. Of course, the Charity Commission has to make a case-by-case judgment on those points. She is raising a hypothetical example, but of course it is the case. I thought that her description of what modern social mores meant suggested a grand conspiracy between ourselves, the Charity Commission and the whole of the charities world.
I am answering. I do not think that the commission will be able simply to say that, on the basis of the change in modern social mores, somehow a religious charity is ruled out. I hope that that gives the right hon. Lady the reassurance that she wants.
I am afraid that I have to make progress. I need to give the hon. Member for Isle of Wight (Mr. Turner) some time to reply and I do not have much time left.
I want to reassure the right hon. Member for Maidstone and The Weald on the point of principle. I also want to reassure her that the burdens will not be onerous for religious charities. As with all charities, public benefit has two dimensions. First, there must be an identifiable benefit. Secondly, it must be accessible not only to the adherents of a particular religion, but to the wider community. However, the Government, the courts and the Charity Commission have recognised that religious activities bring benefits not only to those who take part in them, but to the whole of society. Religion has an important role to play in society through faith and worship, motivating charitable giving and contributing in other ways to stronger communities. Both those dimensions will thus usually be apparent from the doctrines, beliefs and practices of a religion. The Charity Commission is clear that most established religions should not have any difficulty in demonstrating their value to society from their beliefs.
I apologise for not giving way to the hon. Gentleman, but I need to make progress.
The commission has already begun discussions with the major religions of our country precisely to give them reassurance. I hope that the right hon. Member for Maidstone and The Weald will accept my reassurance, too.
I am pleased that my hon. Friend the Member for Selby (Mr. Grogan) has tabled amendment No. 1 because it gives us the chance to talk about another aspect of public benefit. On Second Reading, I set out several principles of the Government’s approach to the charitable status of fee-charging institutions, including private schools, and I want to reiterate them today. I say in passing to the right hon. Member for Maidstone and The Weald that while I think that the bar will be raised, especially for fee-charging institutions that were not subject to the scrutiny of the Charity Commission because of the presumption, I do not believe that I said the words that she attributed to me. However, perhaps we can take that up on another occasion.
Our first principle is that all charities must pass the public benefit test and be continually tested on that by the Charity Commission. The removal of the presumption will lead to that big change. The presumption meant not that there was no public benefit test in all circumstances, but that existing charities were not scrutinised by the commission. The measure is designed to bring about consistency, as the commission has confirmed. The history of this is that when the register of charities was established in 1960, private schools were automatically put on it if they had previously been granted charitable tax relief by the Inland Revenue.
Our second principle is that indirect benefit—the claim that private schools save money for the taxpayer by educating pupils, for example—should not be enough to justify charitable status. That is right, and the view is shared by not only Labour and Liberal Democrat Members, but the Independent Schools Council, which says that indirect benefit savings to the taxpayer should not be enough, given that private schools enjoy the benefits that come with charitable status.
Some hon. Members asked what private schools will have to provide; my hon. Friend the Member for Selby asked whether token benefits would be enough. The Charity Commission will have to make a case-by-case examination, but reassurance is available on the point of principle. The commission said in its briefing earlier this week:
“It will not normally be possible to demonstrate public benefit through indirect benefits alone, such as savings in public expenditure”.
The schools must thus normally provide direct benefits. However, can those benefits be simply for wealthy people who can afford the fees? Again, the commission’s briefing helpfully indicates the way in which it wants to move forward. It says:
“Charities which charge relatively high fees must demonstrate accessibility to those facilities or services”.
Even at this late stage, I hope that when the hon. Member for Isle of Wight winds up the debate, he will announce the Conservative party’s conversion to such a basic principle of fairness.
The benefits will need to be extended beyond the narrow class of people who are able to afford fees, and it is unlikely that a token provision will be sufficient. To answer a question asked by my right hon. Friend the Member for Darlington, the Government believe that the benefits should be direct and meaningful. Generally, we believe that a school that does a range of things to widen access through partnerships with state schools and educational initiatives in the local community—I pay tribute to the many private schools that do this—will find it easier to demonstrate a public benefit.
Our third principle is that the Bill will raise the bar for private schools. I tell the right hon. Member for Maidstone and The Weald that the key point is that this is about fee-charging institutions that previously benefited from the presumption that charitable status was automatically conferred on them. That is why I do not believe—if I said this, I misspoke—that the bar will be raised for religious charities or charities dealing with poverty. This raising of the bar relies on a Charity Commission with a robust plan to implement it, as the Charity Commission has shown. It is embarking on a worthwhile process, involving the development of principles around the implementation of public benefit. It has promised to look specifically at the fee-charging sector, and it will consult the public about their attitudes. In the case of fee-charging charities, there has not been a directly relevant case for almost 40 years, as we heard, so the commission is right to develop its approach by consulting the public, taking account of the passage of time since in re Resch. The Bill seeks to establish confidence in the charity brand.
The fourth principle of the Government’s approach—again, this is important—is that it is for the Charity Commission to take individual decisions about particular institutions. This is necessary because a rural private school miles from a neighbouring state school has a different ability to co-operate with the state sector than an urban private school, for example. Similarly, the private school for disabled children or those with learning difficulties, which my right hon. Friend the Member for Darlington mentioned, may face different pressures, compared with other types of private school.
All those differences need to be taken into account by the commission. That has made framing a specific amendment to the Bill hard, as has been found by many hon. Members who have tried to do so. The dilemma is between an amendment so wide as to add little to existing law or so precise as to have unintended effects. Over the summer we considered the matter and we were not able to find an amendment that satisfied all the demands.
The amendment tabled by my hon. Friend the Member for Selby, if I may say so, falls into the first category. It does not add to the existing law. His amendment states that in determining whether a body provides public benefit, regard must be had to
“any undue restriction on obtaining that benefit”.
The nature of the public benefit test, though, is that charitable status is not established if relief is accorded to a selected few out of a larger number equally willing and able to take advantage of it—in other words, if there is undue restriction on those able to obtain that benefit.
My hon. Friend said in a recent letter explaining his amendment that the Charity Commission should have to weigh public benefit provided by the school against the restricted access to those benefits. I agree with that, as I have said. From our point of view, the amendment is unnecessary, but we want to see proper implementation of the principles. That is why we will review the effect of the public benefit provisions not five years, but three years after implementation, and if they are not having the intended effect and are failing to raise the bar, we will consider all necessary options. My hon. Friend is concerned to ensure that regard must be had to any undue restriction on benefits. As I have made clear, this is part of the public benefit test. It will be part of the review to determine whether our intentions have been met.
This is a good Bill and we should resist the two amendments.
The Minister has eaten into my time a little, but we have eaten into his quite a lot today.
The first point is about religion. Most religions contain beliefs and values that positively affect the relations of believers to their society and to their fellow man. The tangible results of that are much more difficult to prove than results such as poverty reduction or the advancement of education. For that reason, I was happy to move amendment No. 126 and will press it to a Division.
To answer the right hon. Member for Darlington (Mr. Milburn) and the hon. Member for Rhondda (Chris Bryant), who is not in his place, in Committee we pressed for the retention of the public benefit presumption in a number of other areas—not because we believe that people are entitled to money for nothing, but because we believe in less bureaucracy, rather than more, and we know that the Charity Commission is well placed to challenge charities that are not delivering the public benefit that they should be delivering. The right hon. Gentleman says that the commission is not so well placed.
I am unhappy with the words that emanate from the Charity Commission and from Dame Suzi Leather, whom the hon. Member for Selby (Mr. Grogan) quoted, that she will interpret the provision in the light of current mores. That is very frightening to many religious organisations. It is the Government’s ambivalence between proposing change and saying that there will be no change that worries people.
Question put, That the amendment be made:—
It being after Six o’clock, Madam Deputy Speaker put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [26 June].
Government amendments Nos. 5 to 12, 118, 13 to 16, 119, 120, 17 to 57, 121, 58 to 87 and 89 to 116 agreed to.
Order for Third Reading read.—[Queen’s Consent, on behalf of the Crown, and Prince of Wales’s consent, on behalf of the Duchy of Cornwall, signified.]
Motion made, and Question proposed, That the Bill be now read the Third time.—[Mr. Michael Foster.]
The Bill underpins a vibrant and exciting sector, which has a huge growth rate. Since it was conceived, nearly 30,000 new charities have been registered, along with more than 30,000 linked charities. In total, charities spend over £30 billion a year on good causes, and employ more than 600,000 people. There are more than 1 million trustees for such organisations—volunteers who give up their time, and money from their own pockets, to help others. Many Members are involved in charities and causes that are dear to our hearts. It is up to us to ensure that they are regulated in a modern, efficient and easy-to-understand manner.
Although there has been lively and thorough debate about some of the more controversial areas, there seems to be a consensus in the House, in the sector, and among the public at large, that the Bill is a good thing. All Members in this House and Members in another place agreed that the legislation governing charities needed to be updated, and it has been reassuring to know that we are all working towards the same ends.
The Charities Bill has been working its way through both Houses for rather a long time. It was conceived in 2002 in the Prime Minister’s strategy unit and has been mentioned in no fewer than three Queen’s Speeches. Between both Houses, it has enjoyed over 80 hours of debate, and it was considered in draft by a Joint Committee that was ably chaired by my right hon. Friend the Member for Darlington (Mr. Milburn). Therefore, I think that we can safely say that it has been well scrutinised.
The Bill provides, for the first time in English law, a full statutory definition of charity and charitable purposes. In doing so, it removes the centuries-old presumption that some purposes—relief of poverty, education and religion—are for the public benefit. Removal of that presumption will not cancel the charitable status of poverty relief, or of educational or religious charities. But it will require those charities to show that they provide a public benefit, instead of that being simply taken for granted. That will put those charities on the same footing as all other charities, which already have to show—