I thank the noble Baroness for that point. The power would be discretionary and on a case-by-case basis. I refer her to test 3, which says that a,
“disqualification must be desirable in the public interest in order to protect public trust and confidence”.
It goes on to say that that the,
“test will, for example, allow the commission the flexibility to take account of circumstances in which the risk of (further) damage to charity is minimal and it would not be in the public interest to act against the individual”.
I am happy to write to the noble Baroness and illustrate this issue further, as she makes a good point.
As I was saying, condition F is a comparatively broad criterion, but we consider it necessary to enable the Charity Commission to address conduct that could seriously damage public trust and confidence in charities but which would not be caught by one of the other criteria. The condition needs to be considered in context of the other limbs of the exercise of the disqualification power—those that I have just described: fitness, and that disqualification is desirable in the public interest to protect public trust and confidence in charities—and the safeguards relating to the operation of the power, including the right of appeal to the Charity Tribunal.
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The Charity Commission’s draft guidance on how it would exercise the power should provide reassurance that it will use the power only when there is a clear case for doing so, that the commission would clearly explain what it would take into account before using the power, and that in exercising the power the commission would provide an explanation identifying the conduct in question and why it thought the conduct met condition F. Crucially, the commission has committed to consulting widely before it finalises its guidance on the use of this power and will do so before the commencement of the relevant provisions.
I shall also address the point made by the noble and learned Lord, Lord Hope, about the political views of charitable trustees and whether the clause might potentially infringe upon freedom of association and expression. Charity trustees are entitled to their own political views in private. However, they must never use a charity as a vehicle to promote any party political views. That is not permitted under charity law. In relation to extremist views, all charities obviously must comply with UK law and so must not promote or support terrorism or extremism or other illegal conduct such as racial or religious hatred. Nor can a charity’s name, premises or money be used to promote extremist and other activities that are inappropriate under charity law. Furthermore, the Charity Commission has published detailed guidance on charities and extremism to raise
awareness among trustees of the legal requirements placed on them in relation to both criminal law and charity law so that they can properly discharge their duties in the interests of their charity.
The disqualification power may appear to be broad, but is not so when considered in the context of the other requirements of the disqualification provision, and the commission has been clear that it will be narrow in its application. I repeat the point I made earlier about the need for powers in the Bill to be usable by the Charity Commission: if we attempt to so narrowly draw criteria for the regulator’s intervention, we will end up with powers that would go unused and abuse that would go unaddressed, and we may find ourselves back in a few years’ time having this debate all over again. We have to trust in the regulator to use these powers proportionately and in a targeted way. On that basis, I hope that the noble Baroness will be persuaded to withdraw the amendment.