Attorney General V The Charity Commission for Northern Ireland

A little known case was heard recently in the High Court in Belfast. Little known but with significant implications for the Charity Sector in Northern Ireland.
The case was taken by the Attorney General against the Charity Commission for Northern Ireland. The circumstances relate back to a finding of the Charity Tribunal on the 24th March 2015 in William Allen & The Charity Commission . The case focused on statutory construction, specifically  the Tribunal drew attention to the contents of the Table in Schedule 3 to the 2008 Order, and specifically that part which makes provision as to who are the persons who may challenge a decision to institute a statutory inquiry: The table relates;
 The persons are (a) the persons who have control or management of the institution, and (b) (if a body corporate) the institution itself.
The decision of the Tribunal is a well thought out argument and grounds its determination in the fact that the Act shows that no other interpretation may be possible as other decisions that may be challenged by applicants are indicated to be in the plural as well as the singular. The Attorney General however contended that the reference to “persons” in the table should be construed with regard to Section 37(2) of the Interpretation Act (Northern Ireland) 1954 (“the 1954 Act”) which provides as follows:
In an enactment (a) words in the singular shall include the plural; and (b) words in the plural shall include the singular.
Challenge to a Section 22 Inquiry
The outcome of this debate will be keenly watched by the Charity Sector and especially the Commission. If this challenge by the Attorney General is successful then the scene may be set for retrospective decisions of the Tribunal to be challenged by way of judicial review, or even late applications to the Tribunal itself.
A striking element of the Allen case which was part of the wider Disabled Police Officers Association Norther Ireland inquiry, and the potential consequence to the regulator is the way in which the Commission were alleged to have acted. It might appear to the observer  that the Commissions strategy in the Allen case was to weight trustees in their favour and thereby seek an outcome that could not be reviewed, as indeed was alleged to have happened previously in the Lough Neagh Rescue case.

In fact Mr Malachy Magowan counsel for Mr Allen In his closing written submissions to the Tribunal, contended that to confine the potential challengers to the institution and the “persons (plural) who have control or management” effectively allows the Respondent to institute an inquiry, to remove unsympathetic trustees, to appoint other sympathetic trustees and thereby to prevent a challenge to the initial decision to institute an inquiry. Mr Magowan contended that such an interpretation offended against a number of rules of statutory interpretation, quite apart from Section 37(2): statutes should be interpreted so as to serve the public interest; statutes should be interpreted in a manner that is just and fair; and no-one should be a judge in their own cause. Mr Magowan went further and contended that not only should the concept of “persons” include a person singular who has control or management of the charity, it should also include persons who formerly enjoyed, but no longer enjoy, say by reason of suspension, such control or management.

Whatever the decision of the High Court, there are clear and important lessons for the sector generally and the Commission specifically. Questions will and should be asked, can the defence of a position by the Commission that ends up in the High Court with little or no opportunity of success, be seen as proportionate regulation? Can a potential £250,000 cost to the Public purse be justified in what may ultimately be seen as vexatious litigation?
The Attorney General in his submission pointed to the Charity Commission for England & Wales, the counterpart of the CCNI with broadly similar legislation, and who on two occasions accepted challenges to a Statutory Inquiry by a single Trustee with “hardly a murmur”. It remains to be seen how this decision will play out, if the Attorney is successful the Commission may have cause to revisit their strategy, effective decapitation of a Charity is not regulation, it is unacceptable and inappropriate. It may be that given a salutary lesson by the High Court, we may yet see the Commission evolve and begin to understand, Charity volunteers do what they do and quite often for free. To subject them to an apparent policy of regime change with no opportunity to challenge the decision cannot be construed as proportionate in any jurisdiction.   


ProbityaacNI

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