My Lords, Section 16(4) of the Charities Act 2011 sets out the commission’s general duties and Schedule 1 provides that it should have regard to and report annually on its performance on accountability, consistency and transparency. I will present a case from my own experience for why we need to strengthen this section to require the Charity Commission to report on the extent or degree to which it has actually done so. As I say, I am influenced by a particular case and, whether or not I technically need to declare this as an interest, I certainly do so.
The case in question arises from the fact that I have had a long-standing interest in why the then Secretary-General of the United Nations, Dag Hammarskjöld, died in a plane crash, or immediately afterwards, in Northern Rhodesia in 1961 on his way to meet the leader of the breakaway Congolese province of Katanga, Moise Tshombe, and the British Under-Secretary of State, Lord Lansdowne, along with the British high commissioner to the Central African Federation, Lord Alport, and his private secretary, Sir Brian Unwin.
There was immediate and widespread speculation as to whether or not it was an accident. The United Nations carried out an internal inquiry, which reported in 1962, with an interim verdict of not proven—as they would say in Scotland—but the United Nations General Assembly then resolved that, if cogent new evidence came forward, the Secretary-General was empowered to draw it to its attention.
Fast-forward to 2011 and a book was published by Dr Susan Williams which produced some cogent new evidence. I, with others, established in 2012 the Hammarskjöld Inquiry Trust, a legal trust. I do not need to explain to everybody here that lawyers will distinguish a legal trust, which anyone can establish just like that, from a registered trust, which is registered by the Charity Commission. Its purposes were:
“To advance public knowledge and understanding, by seeking to ascertain first the true circumstances of the death of the Secretary General of the United Nations, Dag Hammarskjöld, in 1961 and secondly the true circumstances leading thereto; to make available the results thereof to the United Nations and more widely as the Trustees shall determine”.
This was in the preliminary submission of the purposes of the trust, of which I have a copy, but more of that in a few moments. Suffice to say that it was the start of my experience over the past three years with the Charity Commission.
The modus operandi was that having first appointed a group of trustees of good standing from Europe and Africa, our first job was to appoint an “international commission of jurists”—I use the phrase descriptively—to carry out, over a 12-month period, an examination of new evidence on this matter of national and international importance; and to put together the resources needed for it to carry out its work. I chaired the trust.
The commission of inquiry that we appointed was chaired by the right honourable Sir Stephen Sedley, a Lord Justice of Appeal from 1999 to 2011 and a member of the Judicial Committee of the Privy Council. Its members were Judge Richard Goldstone—inter alia the first chief prosecutor of the UN international criminal tribunals for the former Yugoslavia and Rwanda; Hans Corell from Sweden, a former deputy secretary-general for legal affairs of the United Nations; and, last but not least, Wilhelmina Thomassen, a judge in the Supreme Court in the Netherlands who had been a judge of the European Court of Human Rights.
We told the Charity Commission right from the start, very clearly, that this was a time-limited exercise. If there was cogent new evidence found, our idea was that the commission of inquiry would report by the autumn of 2013 and that there would be no need for the trust to carry on much longer than that once it had presented the report to the United Nations in New York.
In being time-limited it is perhaps an unusual trust—perhaps the Minister will comment on how unusual it is or is not—but it is none the worse for that. Again I stand to be corrected but there is certainly nothing in the legislation that states it is not possible to register a short-term trust. The significance of this consideration will become clear.
To cut a long story short, seemingly endless obstacles were put in our way. First was the contention I mentioned in the previous debate that the trust was “political”.
I return to the point made by the noble Lord, Lord Wallace of Saltaire: no one would remotely say that there was anything party-political about it. However, inter alia, one of the objections raised was on the grounds that it was “political”. Secondly, there were various arcane discussions about the objectives and whether or not we would meet, for example, the test of promoting a sound administration of a law. Where that came from I do not quite recall.
Then we were told that the commission had ascertained that the United Nations was not interested. I will come back to that because it turned out to be not only untrue but the total opposite of the truth. In the background, there was a growing sense among the trustees that, as in a novel by Kafka, this process would never reach a conclusion. This is my answer to the tendentious explanation now given by the Charity Commission that we simply omitted to put in a formal application. I use “tendentious” because it had been made clear to us that, first, we had to satisfy a sequence of tests put to us before it was likely that we would get the green light. That was the process that it presented to us. It was the commission, which, when we had dealt with one objection in preregistration which would stand in the way of a successful application, simply came up with a new one. All that took place over 12 months from August 2012.
I fast-forward to the publication of the report in September 2013 from the commission that the trust appointed. The commissioners found that there was cogent new evidence that the crashed plane had been the subject of some form of attack as it circled Ndola airfield and that the key to this would be to access intercept records from the Cyprus listening post of the United States National Security Agency—likely to be held in its archives in Washington.
I presented the report to the United Nations in New York in October 2013. In the spring of 2014, the Secretary-General wrote a memorandum to the General Assembly recommending that it be an item for the agenda of the session of the General Assembly commencing last September. This was agreed and, in December 2014, a resolution drafted by the Swedish Government was adopted. It ultimately carried signatures of some 60 countries, including South Africa, and 35 European countries, including Germany, Italy, Spain and the Netherlands, but not the United Kingdom, France and Belgium. It decided inter alia that the UN should establish its own panel to carry out follow-up investigations. These have just concluded but its report and any further recommendations from the Secretary-General have not yet been published.
Despite all this, at no point in the last 18 months have we received—until yesterday and I am just coming to that—any acknowledgement, let alone an apology, from the Charity Commission, in terms of retracting its contention that there was no evidence of interest on the part of the United Nations. The importance of that is obvious: it has made that a sine qua non of continuing. Indeed, one of our colleagues, the noble Lord, Lord Malloch-Brown, a former Foreign Office Minister and a former deputy secretary-general of the
United Nations, wrote on our behalf to the Charity Commission on this very point, with no substantive reply.
I shall complete the story. I wrote to the current chairman of the commission, Mr William Shawcross, on this aspect on 26 February this year and received no reply—until, surprise, surprise, I received a reply from him yesterday dated 25 June. He partially changed his tune by acknowledging the UN’s considerable interest, which was palpable, but still did not acknowledge that it had made a big deal out of this, that we had been right about it—and that the commission had certainly been wrong to be dogmatic about it, or that perhaps it had received its steer from biased sources.
In his letter, Mr Shawcross apologised for the delay in answering my letter—after four months; make of that what you will—but then went on to the now all-too-familiar routine along the line that the attitude of the United Nations to the work of the trust was only one aspect of its consideration and that there were others. However, even on the narrow point, how did it come about that we were advised that a positive message of support from the UN would be very significant for the commission’s decision? We have now, as a trust, given up chasing after the moonbeam of Charity Commission registration, so this is by way of a valedictory set of observations from me, regarding a time-limited trust which has now completed its work, given that the follow-up procedures within the UN are now well in hand.
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The Charity Commission’s commitment to the standards of probity referred to in the 2011 Act has, in our case, been seen in the breach rather than the observance. Indeed these standards have gone a long way to being replaced by their converse, such as arbitrariness, secrecy and economy with the truth. In practice, there is no accountability at all. It is a law unto itself. So how are we to make a difference? How are these required standards of behaviour to be benchmarked in practice? As provided in the amendment, the commission would need to elucidate how far it has, it in its opinion, actually met these tests. Maybe an independent watchdog should play this role.
I have to underline the point that these procedures are a lot more difficult to meet, especially when a trust is on a short timescale. Trying to work out how to go through an appeals procedure is simply an invitation to throw good money after bad. In our case, we expended £6,000 in legal fees on the application costs; we could not afford any more. Our total costs were some £70,000, contributed mainly by the trustees, with about half expended on employing a full-time administrator for the 12 months in question, working directly to the chairman of the inquiry. Both the commissioners and the trustees worked pro bono.
It may be asked how far the experience of our trust is a more general one. Obviously, the answer is that we do not know. However, being in a somewhat privileged position as a Member of the House of Lords, I thought this a proper opportunity to put on the record the hurdles we encountered. Paradoxically, this may turn out to be one of the most productive trusts to have
been established in recent years, but this is certainly with no thanks to the Charity Commission. The issues which currently arise are: first, the apparent inability of the commission and its staff to appreciate that a time-limited trust needs a procedure which sorts out any issues very quickly; secondly, the frequently changing nature of its requirements, which made the exercise of seeking registration a bit like Catch-22; and thirdly, the high degree of subjectiveness regarding whom the commission consulted about the application, which may reflect what I can describe only as bias in the system.
In addition to considering the merits of the 2011 Act being amended in the way I have suggested, will the noble Lord respond directly, on behalf of Her Majesty’s Government, to some issues? First, did they, though departments of state or any of the agencies, have any contact with the Charity Commission on the handling of our application? After all, it was the commission, not us, which has described the issues as “political”. Secondly, are they aware of the contacts between the Charity Commission and the United Nations itself? Even though my third and final question is not a matter for the Bill—and I am aware that a separate reply may need to be made on this point—it does follow on from what I have been explaining. Now that the United Nations General Assembly has asked all member states to co-operate on the follow-up to its resolutions, are Her Majesty’s Government actively supporting those steps? The noble Lord may wish to take away some of these issues and write to me, putting a copy in the Library. I trust this will be in good time before Report. I beg to move.