Charities Bill [HL]

moved Amendment No. 11:"Page 3, line 32, at end insert—" ““(   )   In carrying out such consultation in relation to charities which charge for their services, the Commission shall consider the extent to which public benefit is thereby affected.”” The noble Lord said: This amendment was the subject of some considerable debate in Committee last time. I do not know whether it is permitted to read into the record what was said on the previous Bill, but I will   try. The report of the second day of Committee on 9 February contains, at cols. 110 to 113, my introduction to this amendment. I do not propose to move the amendment at such length and in such detail on this occasion, not least because many of your Lordships were present on that occasion. The point of the amendment is to put beyond doubt the right of the Charity Commission, in drawing up guidance as to the meaning of ““public benefit””—that is a hugely important part of the Bill, as everyone agrees—to consider the extent to which public benefit is affected by fees charged by charities for their services. Members of the Committee may think that that is obvious and that they are bound to do that in any event, but it is not obvious. In this regard, the law   is not set out on the face of the Bill and as Hubert Picarda, Queen’s Counsel, extremely learned in charity law, put it,"““the mere reversal of the presumption of public benefit””," which is what this Bill effects,"““cannot change the declared law on this point””." The declared law on this point is extremely sparse. Those in the charity world are all agreed that it rests on a single case, Re: Resch, which was a Privy Council case of 40 years ago concerning an Australian hospital run by a religious order. There, and only there, does one have detailed consideration by the High Court of what ““public benefit”” means in relation to what is a   fourth head charity. That would not be too bad if Re: Resch were clear, but it is wonderfully unclear. The head-note, which, as lawyers will know, is the summary of the judgments given in a case, of which there were several in Re: Resch, states:"““it would be a wrong conclusion to draw from the cases that a trust for the provision of medical facilities would necessarily fail to be charitable merely because by reason of expense they could only be made use of by persons of some means””." In effect, that says that the failure of poor and poorer people to have access to the facilities of the hospital was not a matter determinative of its charitable status. That is very relevant today to charitable hospitals in this country and it is relevant to independent schools, to name another category of charities. The finding in Re: Resch was that the hospital was a charity, but the head-note continues:"““the element of public benefit was strongly present since the evidence here showed that the need existed for the type of accommodation and treatment provided by this hospital””." What type of accommodation and treatment was provided by that hospital? Lord Wilberforce, who gave the leading judgment, said that the need was satisfied by reason of the fact that the hospital provided,"““medical treatment in conditions of greater privacy and relaxation than would be possible in a general hospital””." In effect, all one needs is to provide what Lord Wilberforce spoke about—greater privacy and relaxation—and one is through the public benefit hoop. The point I want to make, the point made by many charity lawyers and the point urged on the Committee by the National Council for Voluntary Organisations, for example, is that to rely on that case and those circumstances is a pretty unsatisfactory basis on which to interpret the public benefit test in this Bill. My amendment is extremely modest, rational and not radical. It puts beyond doubt the right, and indeed the duty, of the Charity Commission, when drawing up its guidelines, to look at the extent to which, if at all, public access to the public benefit is affected by the charging policy of the charity. The only other point I want to make concerns independent schools. The Independent Schools Council, through the extremely eloquent witnesses who came before the joint scrutiny committee which considered the draft Bill—I see the noble Lords, Lord   Campbell-Savours and Lord Best, in the Chamber—told us that independent schools have moved on in the past decade. They said to us that the majority were now anxious to provide public benefit to more than merely the pupils at their schools; to share facilities; in some cases to share teaching; in some cases to share playing fields, theatres and the rest of it. We all said, ““Hurrah for that””. The point is that not every such school is making an effort to spread the benefits to the wider public. I am anxious—and I think many of your Lordships will be—that in this case the better and more progressive schools should provide the yardstick and not the laggards. I do not want to find in two years’ time that when the Charity Commission seeks in its scoping survey to determine what public guidance shall mean with regard to independent hospitals it has the case of Re: Resch thrust at it with the argument, ““It is quite sufficient, we’re providing conditions of greater relaxation and privacy, and on top of that we’re relieving the NHS of the cost of treating the people who come to the London clinic, and that’s that, no further requirements””. None of us would want that to be a sufficient response to an inquiry made by the Charity Commission as to the impact on public access of its fee-charging policy. That is all that the amendment is designed to ensure. I hope that it will appeal to the Government now in a way that it did not in Committee last time, although just before the election the Government were minded to allow the amendment had the Bill proceeded through its stages. I hope that the noble Lord, Lord Hodgson, who had some quizzicality about some aspects of the Bill last time, will be less quizzical today. I beg to move.