DRAFT Charity Law Association Speaking Note re Charities Bill 2005
-Amendment 92 : Page 9, line 25
Remove subsection (3) - Why do we need Schedule 4
1. Subsection (3) and Schedule 4 are essential, because Schedule 4 provides the general right of appeal against Charity Commission decisions to the new Charity Appeal Tribunal.
2. However, Paragraph 1(1) of Schedule 1C of the 1993 Act, to be incorporated into that Act by Schedule 4, continues to limit the general right of appeal by:
2.1 limiting it to specific provisions, now set out in a detailed table; and,
2.2 still not extending it to instances of delay or impasse in the decision-making process of the Commission.
3. The CLA strongly agreed with paragraphs 7.79 and 7.80 in the Strategy Unit Report - Private Action, Public Benefit , which, in recommending the introduction of the Tribunal, envisaged that it would:
3.1 hear appeals against legal decisions of the Commission (Paragraph 7.79); and
3.2 be able to make determinations in the case of delay or impasse in the Commission decision-making process (Paragraph 7.8).
4. The consultation draft of the Charities Bill, instead, included a right of appeal restricted to specified major orders of the Commission.
5. The current draft Charities Bill provides a significantly extended right of appeal, but with the following remaining problems:
5.1 in being so specific in the Schedule 4 Table, there is a danger of significant omission, or inappropriate provision, which may only be corrected by order of the Secretary of State approved by each House of Parliament (Paragraph 6 of Schedule 4). This is an inflexible model for a major new institution and decision-making procedure;
5.2 still the right does not extend to instances of delay or impasse;
5.3 it is not expressly stated, in general terms, that an appeal may be against a decision etc resulting in no-action as well as one resulting in action and an express statement, to that effect, is desirable.
6. CLA Recommendation
Paragraph 1(1) of Schedule 1C of the 1993 Act, incorporated into that Act by Schedule 4, should be amended (with consequential subsequent re-numbering) to establish a full general right of appeal, with the Table being reduced to the status of guidance to the Tribunal, as follows
1 (1) An appeal may be brought to the Tribunal, by the persons specified in Paragraph (2):
(a) against any final decision, direction, or order of the Commission (whether the outcome is action or no-action by the Commission), except in the case of a reviewable matter (see paragraph 3); and
(b) for a determination in any matter which is subject to unreasonable delay, or any indecision, or impasse in the decision-making process of the Commission, preventing, or unreasonably delaying any final decision [etc].
(2) The following persons shall, as is appropriate in the circumstances, which shall be determined by the Tribunal taking account of the guidance in column 2 of the Table, be entitled to exercise the right of appeal under Paragraph (1) in relation to a decision [etc}:
(a) [ the charity trustees, of any affected charity, or the persons who have control or management of any other affected institution];
(b) [an affected charity, or other institution, which itself has legal identity];
(c) [ any person who, or which, is the subject of, or is, or may be, otherwise affected by any decision [etc].
(3) The Tribunal shall, as appropriate in the circumstances, which shall be determined by the Tribunal taking account of the guidance in column 3 of the Table, have power in respect of any appeal under Paragraph (1) to:
(a) uphold, or quash any decision [etc] of the Commission;
(b) amend, or vary, any decision[etc] of the Commission;
(c) make any decision [etc] within the powers of the Commission, whether in place of, or substituting for, a Commission decision [etc];
(d) remit any matter to the Commission, with or without directions;
(e) direct the Commission in its decision-making process in respect of any matter arising in relation to the subject-matter of the appeal.
Note: A similar amended reference to the Table would be required in relation to Reviewable Matters under Schedule 1C3 of the 1993 Act, incorporated into that, Act by Schedule 4.
