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Lord Evans of Temple Guiting: My Lords, I will attempt to answer all the questions raised. As usual, if I miss any out, we will write.
The noble Duke, the Duke of Montrose, asks why not have a Sewel Motion rather than taking the Section 30(2) route. We need to use the order-making power as Sewel Motions relate only to UK primary legislation going through Parliament. This order relates to the legislation already passed.
He also asks why road traffic regulations are being transferred to Scottish Ministers. Scottish Ministers are already responsible for traffic regulation in Scotland. This order balances the devolved aspect of traffic regulation with a need to consider the reserved matters dealing with terrorism. Approval of the order will place Scotland in a position equivalent to that of the National Assembly for Wales for making ATTROs (anti-terrorist traffic regulation orders).
The noble Duke, the Duke of Montrose, asked for examples of special premises under Part 1 of Schedule 1 to the Fire Certificates (Special Premises) Regulations 1976. A few examples are manufacturing premises using highly flammable liquids and premises storing liquid gas in very large quantities.
The noble Duke also asked whether every aspect of food was included as a result of the order. Scottish Ministers have devolved competence to act in relation to food as defined within the parameters of the GB Food Safety Act 1990 at the time of devolution. The definition of food in the 1990 Act and other legislation regulating food safety and food standards was amended to reflect the new European food law framework on 7 December 2004.
As the devolution settlement is fixed in part by reference to the scope of the 1990 Act as it stood on 1 July 1999, and as certain substances considered drugs and medicine under our domestic law now fall within the European food law framework, this technical measure is required to ensure that Scottish Ministers can continue to regulate food safety and food standard matters for Scotland in respect of all food within the new definition.
The noble Duke, the Duke of Montrose, also asked why for transferred functions under the Road Traffic Regulation Act 1984 there was an obligation to obtain the consent of the Secretary of State. He asked whether that meant that the powers were not actually devolved. Section 63 of the Scotland Act specifically envisages the transfer of functions to be exercised with the agreement of the Secretary of State.
The noble Lord, Lord Maclennan of Rogart, raised general points about how the orders are handled. It is difficult to make such highly technical orders intelligible. He might like to think about how we can share them with the public before we introduce them in the House, as he suggested, and we certainly will. As the noble Earl, Lord Mar and Kellie, pointed out, these technical orders
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are complicated and challenging. However, we take on board the point made by the noble Lord, Lord Maclennan.
The noble Lord, Lord Maclennan, asked a similar question to that of the noble Duke, the Duke of Montrose: why is the agreement of the Secretary of State required for orders made by Scottish Ministers in relation to anti-terrorist traffic regulation orders? The Scotland Act specifically envisages the transfer of functions where they are to be exercised with the agreement of the Secretary of State when they relate to reserved matters. In matters of general policy—on roads, for example—the function is devolved. The noble Lord also asked whether the review of fire safety was happening at the same time, and by coincidence, as in England and Wales. The review is taking place at a similar time, as there are certain cross-border issues that are relevant to both the ODPM's Regulatory Reform (Fire Safety) Order and the Scottish Executive's Fire Bill.
The noble Lord, Lord Maclennan, asked why the definition of "persons detained" was being changed, and about the intention of the changes to the definitions. The current definitions in the Scotland Act have become out of date, and the order seeks to ensure that the definitions are brought up to date to give full effect to the Act.
The noble Baroness, Lady Carnegy, asked what a fire service pensions order would do. The transfer of functions will enable Scottish Ministers to make detailed arrangements for one or more pension schemes for fire service staff. She went on to ask about the financial implications of such pensions. The answer is that there are no direct financial implications. Fire service pensions are funded on a pay-as-you-go basis by contributions from the local authority, employers and staff. The situation will not change because of the transfer of functions.
The noble Baroness, Lady Carnegy, also asked how often Scottish Ministers expect to exercise the ATRRO functions in Scotland. It is impossible to determine frequency. The Scottish Executive have advised that they do not believe that ATTROs will be used on anything like a regular basis in Scotland. Local roads authorities already have extensive power to make traffic regulation orders. An ATTRO would be used only in extreme circumstances, which, in all probability, would be sanctioned by the local road authority.
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The noble Earl, Lord Mar and Kellie, asked about the financial implications of the road traffic regulations power already exercised by Scottish Ministers under the Road Traffic Regulation Act 1984. The order simply serves to clarify their ability to exercise those powers for the purpose of countering vehicle-borne terrorist threats. The Scottish Executive do not expect to increase public spending and no transfer of funds is proposed in connection with the order.
At least two noble Lords asked where the initiatives on these orders come from. They come from legislative proposals in the UK and Scottish Parliaments. The noble Earl, Lord Mar and Kellie, asked whether recent announcements on asylum and immigration override the Fresh Talent initiative. The Scottish Ministers have supported the recent announcements and have said that they believe that the Government's proposals should not impinge on Fresh Talent. As I said at the beginning, if I have missed anything out I will write to noble Lords.
On Question, Motion agreed to.
Scotland Act 1998 (Modifications of Schedule 5) (No. 2) Order 2005
Lord Evans of Temple Guiting: My Lords, I beg move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 25 January be approved [8th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.
Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005
Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 18 January be approved [6th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.
House adjourned at thirteen minutes after nine o'clock.
Official Report of the Grand Committee on the
Charities Bill [HL]
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
Clause 2 [Meaning of "charitable purpose"]:
Lord Hodgson of Astley Abbotts moved Amendment No. 9:
"( ) in paragraph (c) "religion" includes belief in a supernatural being, thing or principle, and acceptance and observance of canons of conduct in order to give effect to that belief;"
The noble Lord said: We had a preliminary canter over this ground when we discussed Amendment No. 4, tabled by the noble Lord, Lord Wedderburn. From reading Hansard, given the length and depth of the debate, it was not so much a preliminary canter as a full-scale cavalry charge. I shall endeavour not to repeat much of what was said then.
I have no wish to provoke the noble Lord, but I have not always found it easy to follow his line of argument. An example is his intervention on my Amendment No. 8 on animal welfare. I did not understand what he was trying to get at. Fearing it might be my hearing or comprehension, I held my peace. Having read Hansard, I am not sure that I am any clearer. I am aware that he awarded the luckless noble Lord, Lord Bassam, a beta minus for his response, so I fear that I shall have to contend myself with a gamma for this.
Amendment No. 9 is concerned with Clause 2 and the meaning of "charitable purpose". The Committee knows that one of the original four "heads" of charitable purpose that existed before the number of such purposes was increased to 12 was "the advancement of religion". That remains under Clause 2(2)(c). The amendment inserts, in Clause 2(3), a definition of "religion".
We have had briefings on the subject from a number of people and groups, including Daoud Rosser-Owen, who is the co-founder of Religions Working Together and president of the Association for British Muslims. The Joint Committee's third recommendation was that the Bill should include a definition of religion in Clause 2, making it clear that non-deity and multi-deity groups can satisfy the definition of religion for charitable purposes. Indeed, it might help to satisfy the noble Lord, Lord Wedderburn. It seems eminently sensible because, according to the Charity Commission's current criteria, Buddhism, some aspects of Hinduism and even some
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Christian denominations such as Unitarians and Quakers are excluded from the definition of religion in charity law.
The Government disagreed, however, seeing it as unwise to include such a definition in the Bill. Their reasons were explained in their reply to the report from the Joint Committee, which stated:
"The Government considered, in preparing its response to the Strategy Unit's review of charity law and regulation (September 2002), whether or not there should, for the purpose identified by the Joint Committee, be a statutory definition of 'religion' in charity law. The clear evidence we found was that non-deity and multi-deity groups can already satisfy the (common law) charity law definition of a 'religion' and thus qualify for charitable status. There are, for example, over two hundred charities registered with the purposes of advancing the Buddhist faith, and a similar number with the purposes of advancing the Hindu faith. The Charity Commission began registering some such organisations from the time the register of charities was being created in the 1960s, so their recognition as charitable is well-established. The Government's conclusion in considering the Strategy Unit review was that there was no need for a statutory definition of 'religion' in charity law. That remains our view. We therefore do not accept this recommendation".
It has been pointed out to us that, for the past four years, the Charity Commission has asserted that there is a definition of religion peculiar to charity law, and that that definition required belief in a supreme being and worship of a supreme being in a certain fashion. The Charity Commission's current documents unequivocally state that religions that do not meet those criteria are not religions for the purpose of charity law. Daoud Rosser-Jones provided for the Joint Committee an extract from the current Charity Commission booklet CC21 Registering a Charity, which states in the section which deals with the advancement of religion:
"For the advancement of religion to be charitable the religion has to be founded on a belief in a supreme being or beings; and involve expression of that belief through worship".
That definition is reiterated by the Charity Commission and other publications including one published on 4 October 2004 specifically commenting on descriptions of charitable purposes in the draft Charities Bill. In that document the commission states:
"The criteria that we use to decide whether an organisation is advancing religion, as that is understood by charity law . . . are [that] adherents have belief in a supreme being [and] adherents worship the supreme being".
Given such criteria, Buddhism and the various other religions that I have already mentioned would not fall under the definition of religion in charity law. Moreover, although as the Government observed, the Charity Commission has registered such groups in the past, it also states on its website that it intends to go through the register and ensure that all currently registered charities meet its criteria. The Charity Commission's existing published statements do not agree with the Home Office's regarding the definition of religion in charity law. That is surely an untenable position which raises the further question, who will make the final call when decisions on religious matters are made—the Home Office or the Charity Commission?
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Since their views on religion as a charitable purpose appear to be incompatible, that area could cause conflict. That is probably one of the reasons why the Joint Committee recommended that a statutory definition of religion had to be included in the Bill. I have no doubt the noble Lord, Lord Phillips, will want to comment on that because he was on the scrutiny committee.
Additionally, contrary to the Home Office's assertion that there is no clear English common law judicial decision on the meaning of religion—which includes non-deity religions—although it is true that common law countries such as Australia, New Zealand, the United States and Canada have all adopted broad definitions, there is no similar judicial decision yet by an English court.
The simple way to sort this out is the amendment that the Charity Law Association provided which is the definition of religion as accepted in Australia and New Zealand. It would insert into the Bill a new paragraph which would read,
"in paragraph (c) 'religion' includes believe in a supernatural being, thing or principle, and acceptance and observance of canons of conduct in order to give effect to that belief".
The amendment would provide a straight definition of religion on the face of the Bill and remove any potential difficulty that could result from the contradictory definitions given by the Home Office and the Charity Commission.
The Bill as drafted appears also to have not insignificant human rights implications. Many well-known religious denominations are in the position of not knowing whether they are accepted in English law as a religion or if they are entitled to charitable status. Some argue that to leave that state of affairs is a violation of Article 9 of the European Convention on Human Rights as it inhibits the freedom to manifest one's religion. It is also argued that it is a violation Article 14 which prohibits discrimination since some religious denominations face this problem while others do not. It is a dilemma that surely should be resolved and one that can best be resolved by amending the Bill as suggested by including the definition of religion as given in Amendment No. 9. I beg to move.
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