COMMUNITIES COMMITTEE Wednesday 4 May 2005 Session 2 £5.00 Parliamentary copyright. Scottish Parliamentary Corporate Body 2005. Applications for reproduction should be made in writing to the Licensing Division, Her Majesty‟s Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ Fax 01603 723000, which is administering the copyright on behalf of the Scottish Parliamentary Corporate Body. Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body by Astron. CONTENTS Wednesday 4 May 2005 Col. CHARITIES AND TRUSTEE INVESTMENT (SCOTLAND) BILL: STAGE 2 ................................................................. 2137 COMMUNITIES COMMITTEE 14th Meeting 2005, Session 2 CONVENER *Karen Whitefield (Airdrie and Shotts) (Lab) DEPUTY CONVENER *Donald Gorrie (Central Scotland) (LD) COMMITTEE MEMBERS *Scott Barrie (Dunfermline West) (Lab) *Cathie Craigie (Cumbernauld and Kilsyth) (Lab) *Linda Fabiani (Central Scotland) (SNP) *Christine Grahame (South of Scotland) (SNP) *Patrick Harvie (Glasgow) (Green) *Mr John Home Robertson (East Lothian) (Lab) *Mary Scanlon (Highlands and Islands) (Con) COMMITTEE SUBSTITUTES Shiona Baird (North East Scotland) (Green) Christine May (Central Fife) (Lab) Mike Rumbles (West Aberdeenshire and Kincardine) (LD) John Scott (Ayr) (Con) Ms Sandra White (Glasgow) (SNP) *attended THE FOLLOWING ALSO ATTENDED: Johann Lamont (Deputy Minister for Communities) Christine May (Central Fife) (Lab) CLERK TO THE COMMITTEE Steve Farrell SENIOR ASSISTANT CLERK Katy Orr ASSISTANT CLERK Jenny Goldsmith LOCATION Committee Room 6 2137 4 MAY 2005 2138 memorandum of understanding will be drawn up Scottish Parliament about a delegated function generally. Nevertheless, amendment 42 will formalise the Communities Committee requirement to inform OSCR when any specific decision that is subject to review is made. Wednesday 4 May 2005 Amendment 43 is consequential on amendment 42. It will ensure that the duty to provide [THE CONVENER opened the meeting at 09:31] information on the appeals process applies only to the notice that is sent to the person who is subject Charities and Trustee Investment to the decision and not to the notice that is sent to (Scotland) Bill: Stage 2 OSCR. Amendments 44 and 45 will make it clear that a The Convener (Karen Whitefield): I open the delegated decision to suspend a charity trustee Communities Committee‟s 14th meeting of 2005. I under section 31(4) can be appealed to the Court remind all who are present that mobile phones of Session and that the court has the same power should be turned off. over such a decision as it has to quash OSCR‟s decisions and to direct the person who took the The first and only agenda item is consideration delegated decision to take such action as the court of the Charities and Trustee Investment (Scotland) thinks fit. Bill at stage 2. I welcome the minister, her officials and Christine May, who has joined the committee I ask the committee to support the amendments for today. Members should have a copy of the bill, in the group and I move amendment 42. the marshalled list of amendments and the Amendment 42 agreed to. groupings list for day 3, which was issued on Friday. Amendment 43 moved—[Johann Lamont]—and agreed to. Members may be aware that I received a letter from the Deputy Minister for Communities Section 71, as amended, agreed to. yesterday about our discussion of misconduct and mismanagement as it relates to section 103 and Sections 72 to 74 agreed to. about related amendments. Copies of that letter Schedule 2 agreed to. were sent to all committee members yesterday. Section 75—Appeals to Scottish Charity Section 70—Decisions Appeals Panel Amendments 107 and 108 not moved. The Convener: Amendment 160, in the name of Section 70 agreed to. Christine Grahame, is grouped with amendments 78, 109 and 110. I point out that if amendment 160 is agreed to, amendments 78 and 109 will be pre- Section 71—Notice of decisions empted. If amendment 160 is not agreed to and The Convener: Amendment 42, in the name of amendment 78 is agreed to, amendment 109 will the minister, is grouped with amendments 43 to be pre-empted. 45. Christine Grahame (South of Scotland) The Deputy Minister for Communities (SNP): Amendment 160 seeks to delete section (Johann Lamont): The amendments relate to the 75(6), which states: notification of decisions and the appeals process “The Panel may not award expenses to OSCR or to any for decisions that are made by a person to whom person who appeals a decision.” the Office of the Scottish Charity Regulator‟s functions have been delegated under section 38. In law, it is usually the position that success can lead to an award of expenses, although a court or Amendment 42 will make it clear that notification tribunal can vary that award, depending on of a decision that is listed in section 70 and which matters such as the extent of the success, what was made by a person to whom OSCR‟s functions has been heard in evidence and how the parties have been delegated must be given to OSCR as have behaved. It is not necessary to insert in the well as to the person about whom the decision bill an explicit statement that the panel may was made. That will keep OSCR aware of action that is being taken and of the possibility that it will “award expenses incurred as a result of participation in the appeals process”, have to review a decision. as amendment 109, in the name of Cathie Craigie, We expect any body with delegated authority to seeks to do—as does amendment 78, in the name liaise closely with OSCR over regulatory action of Donald Gorrie—because that is the usual that is taken under powers in the bill. A position in law. 2139 4 MAY 2005 2140 The idea that OSCR should pay compensation playing field, so that financial considerations do is superficially attractive, but I hope that Donald not prevent small charities from arguing their case Gorrie and Cathie Craigie will forgive me for as well as they can if there is an argument saying that the way in which they have framed between them and OSCR. The process should be their proposals is clumsy. What would happen if a simplified and if a charity has a good case, it charity had a partially successful appeal and, even should not expect to come out badly in financial though OSCR had operated and behaved terms. appropriately, the charity sustained losses as a As Christine Grahame said, OSCR‟s well- result of OSCR‟s actions? How much of those intentioned efforts, if based on faulty information, losses—25 per cent, 50 per cent or 100 per cent— can do great harm to charities. Charities are rather should OSCR cover? One could argue that a like unfortunate ladies in the Victorian era; if ladies charity was unable to do street collections ever lost their good name, they were in big trouble, because the fact that it was being investigated by and charities are the same. If people get the OSCR meant that people stopped putting money impression that there is something dubious about in the collecting tins. How on earth could one a charity, great harm is done, however wrong that quantify such losses? Even if one overcame those impression might be. We want to ensure that hurdles and managed to quantify the losses, OSCR does not enter into disputes or take action would there be a subsequent compensation against charities unless it is sure of its grounds. hearing? If so, when would it take place? I do not think that it is appropriate to put together the My amendment has two aims: to ensure that awarding of expenses and the payment of neither the charity nor OSCR acts unreasonably; compensation for some of the reasons that I have and to ensure that the financial considerations of outlined, which are fairly substantial. arguing the case are set aside. However, there is substance in the point that Christine Grahame and I feel that there might be remedies elsewhere; I others have made, which is that the process that I have no doubt that the minister will address the suggest is too laborious. I do not intend to press issue. If OSCR acted in bad faith, there might be a my amendment, but it is important for the minister case for bringing a damages action in a civil court. to tell us the Executive‟s views on the matter. I ask If OSCR behaved negligently towards a charity, her to tell us the Executive‟s aim and to confirm did not investigate properly or acted in breach of whether there will be further discussion to make its regulations, I think that a civil action could be the arrangements between OSCR and charities of brought. There would have to be a separate various sizes as clear and fair as possible. hearing, which would take time to prepare for. One would have to plead fault, quantify the degree of Cathie Craigie (Cumbernauld and Kilsyth) fault and say what OSCR ought or ought not to (Lab): Amendments 109 and 110, in my name, have done. One would have to have pleadings have the support of the Scottish Council for and answers to those pleadings. Productions Voluntary Organisations. Donald Gorrie would have to be lodged and evidence heard. That highlighted the fact that we have been contacted might not be a minor matter. We might be talking by a number of organisations that have concerns about 100,000 quid, not 500 quid. about this aspect of the bill. There was unanimous agreement that the appeals process is right. It is There are practical difficulties with what Donald thorough and there are checks and balances to Gorrie and Cathie Craigie are proposing.