Mactaggart: I’ll resolve the disagreement
Third Sector Magazine
By Joe Gill
The future of the draft Charities Bill was hanging in the balance as the scrutiny committee hearings drew to a close last week, with pressure growing on the Government to insert a definition of public benefit into the Bill or risk losing it altogether.
Voluntary sector minister Fiona Mactaggart, facing the committee, admitted that the split between the Government and the Charity Commission over how the new public-benefit test would be implemented would have to be resolved.
She admitted the disagreement over public-benefit tests was ‘a problem’, but added: ‘I have sought legal advice which I can confirm is of the highest quality, and I am sure that the evidence I have given to the committee about the impact of the Bill is correct.’
She refuted committee chairman Alan Milburn’s suggestion that the Home Office was ‘twisting arms’ at the commission to get it to change its view that case law would mean that all independent schools and hospitals would pass the test and remain as charities.
Mactaggart said that the situation – described as a ‘dog’s breakfast’ by Milburn and other committee members – would be resolved before the committee reports in September.
Committee member Lord Phillips of Sudbury told Third Sector after the hearing last Wednesday that he believed the Government was ‘two-thirds of the way’ to putting a reserve power in the Charities Bill for the Home Secretary to define public benefit.
A Home Office spokesman said that he was not aware of this, but added that if it were included in the final report of the joint committee, it would be given consideration.
Mactaggart told the committee that the Government was considering issuing non-statutory guidance – to be agreed with the commission and the sector – on public benefit.
Committee members warned that, without some definition of public benefit, it would not be possible to make the commission ‘fit for purpose’ as adjudicator of charities’ public benefit, with the power to remove charitable status to those that failed the test.
Milburn pressed Mactaggart on how she thought the Home Office would get the commission to, accept its view that public benefit would not be assured in the case of independent schools because of case law, but would face an effective public-benefit test.
‘Are we going to see a merging of very disparate views by a process of osmosis, transcendental meditation and eventually consensus and agreement?’ said Milburn.
The NCVO, Acevo, the Independent Schools Council and others have argued that the draft Bill would need amendments to enforce public-benefit testing on private schools if the commission’s position was correct.
The Charity Law Association, however, argued in its submission that ‘the necessary public benefit tests are present within the existing case law and… the case law cited by the Charity Commission does not prevent the tests being applied to independent schools.’
Last week, committee members questioned the commission’s ability to be ‘fair and proportionate’ in its treatment of voluntary organisations, and some members pushed for the words to be included in the Bill.
Mactaggart said all public bodies were under obligation in law to be fair and proportionate and such a move would give lawyers something to ‘ferret away at’. The new tribunal would provide means for redress against unfair decisions.
Milburn told the Minister: ‘You are asking us to trust the Charity Commission. What we have had so far from the commission has not been as confidence-inspiring as we would have hoped.’