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Communities Committee, 04 May 2005

04 May 2005 · S2 · Communities Committee

Item of business

Charities and Trustee Investment (Scotland) Bill: Stage 2

Grahame, Christine SNP South of Scotland Watch on SPTV

Amendment 160 seeks to delete section 75(6), which states:"The Panel may not award expenses to OSCR or to any person who appeals a decision."In law, it is usually the position that success can lead to an award of expenses, although a court or tribunal can vary that award, depending on matters such as the extent of the success, what has been heard in evidence and how the parties have behaved. It is not necessary to insert in the bill an explicit statement that the panel may"award expenses incurred as a result of participation in the appeals process", as amendment 109, in the name of Cathie Craigie, seeks to do—as does amendment 78, in the name of Donald Gorrie—because that is the usual position in law.The idea that OSCR should pay compensation is superficially attractive, but I hope that Donald Gorrie and Cathie Craigie will forgive me for saying that the way in which they have framed their proposals is clumsy. What would happen if a charity had a partially successful appeal and, even though OSCR had operated and behaved appropriately, the charity sustained losses as a result of OSCR's actions? How much of those losses—25 per cent, 50 per cent or 100 per cent—should OSCR cover? One could argue that a charity was unable to do street collections because the fact that it was being investigated by OSCR meant that people stopped putting money in the collecting tins. How on earth could one quantify such losses? Even if one overcame those hurdles and managed to quantify the losses, would there be a subsequent compensation hearing? If so, when would it take place? I do not think that it is appropriate to put together the awarding of expenses and the payment of compensation for some of the reasons that I have outlined, which are fairly substantial.I feel that there might be remedies elsewhere; I have no doubt that the minister will address the issue. If OSCR acted in bad faith, there might be a case for bringing a damages action in a civil court. If OSCR behaved negligently towards a charity, did not investigate properly or acted in breach of its regulations, I think that a civil action could be brought. There would have to be a separate hearing, which would take time to prepare for. One would have to plead fault, quantify the degree of fault and say what OSCR ought or ought not to have done. One would have to have pleadings and answers to those pleadings. Productions would have to be lodged and evidence heard. That might not be a minor matter. We might be talking about 100,000 quid, not 500 quid.There are practical difficulties with what Donald Gorrie and Cathie Craigie are proposing. That is why I oppose amendments 78, 109 and 110. I ask members to support amendment 160, which seeks simply to delete the provision that says that expenses cannot be awarded, so that the rule that expenses are usually awarded when a case is successful, subject to the court's discretion, is followed.I move amendment 160.