Northern Ireland High Court finds that single trustees do have standing to seek review of decisions made by the Charity Commission for Northern IrelandJanuary 15, 2016
The High Court of Justice in Northern Ireland has recently held that the Charity Tribunal for Northern Ireland (“the Charity Tribunal”) incorrectly ruled that individual charity trustees did not have standing to seek review of the decisions by the Charity Commission for Northern Ireland (“the Commission”).
The case concerned a decision by the Commission to institute a statutory inquiry under section 22 of the Charities Act (Northern Ireland) 2008 (“the 2008 Act”) into the management of the Disabled Police Officers Association of Northern Ireland. This inquiry led to the suspension of one of the Association’s trustees, Mr William Allen, who was also Chairman of the Association. Mr Allen applied to the Charity Tribunal for both a review of the decision to institute a section 22 inquiry, and the decision to suspend him, but was informed that the Charity Tribunal did not have a jurisdiction to hear his application. Subsequently Mr Allen resigned from his position as trustee of the Association with immediate effect.
While the matter was no longer of consequence to Mr Allen, the Attorney General for Northern Ireland appealed the Charity Tribunal’s decision.
The right to seek review of a Charity Tribunal decision is contained within Schedule 3 of the 2008 Act which provides that review can be sought by (i) the Attorney General, (ii) ‘the persons who have control or management of the institution’, and, (iii) if a body corporate, the institution itself.
The Attorney General argued that the use of ‘persons’ within the right to review provision must be taken to include person singular, as the Commission’s contention that it was restricted to the plural would be unduly restrictive. The Commission countered by stating that the right to seek review was restricted to those persons having control or management of the charity and that it was not extended to an individual trustee unless they could demonstrate that they were in control of the charity.
The Charity Tribunal had previously held that the Commission’s interpretation was correct, finding that the particular wording of the legislation had been chosen to limit the number of applications for review. The Charity Tribunal had held that as a decision by the Commission to institute a statutory inquiry into a charity is an intervention against the charity as a collective whole it is “consonant with the nature of the inquiry that the right to challenge the decision to institute its statutory inquiry should be vested in the charity acting as a collective whole.” Finally the Charity Tribunal had held that as the right to apply for review of the decision was also extended to the Attorney General, any possible abuse by the Commission of its power to instigate a statutory inquiry would not go unchallenged.
However, on the Attorney General’s appeal the High Court held that the Charity Tribunal had erred in its finding.
The High Court noted that when the Interpretation Act (Northern Ireland) 1954 (“the Interpretation Act”) applied, words in singular include the plural and words in plural should include the singular. While legislation could explicitly disapply the Interpretation Act, this was not the case with the 2008 Act. In addition, the High Court disagreed with the Charity Tribunal’s view that in these cases the statutory inquiry intervention by the Commission would be exclusively against the charity itself, as it was noted that the Commission’s action could and would also affect any individual trustees who were carrying out the governance of that charity. The High Court also noted that the right to seek a review is in effect an alternative statutory remedy to judicial review through the Courts and there could surely be no doubt that a single trustee would have the necessary standing to seek judicial review in a matter such as the case presented. Therefore, if the narrow interpretation sought by the Commission was accepted, the applicant would not have been able to seek the statutory relief on offer under the 2008 Act, and instead would have had to apply to the Court for judicial review. It was concluded that this could not have been what was intended by the draftsmen. Finally, the High Court held that a broader interpretation would further the ends of justice, for example where the majority on the Board of Trustees sought to unlawfully persuade the Commission to hold an inquiry to disadvantage a single trustee or a minority of the trustees, then that trustee or those minority trustees would be unable to take advantage of the right to seek a review of any decision to hold a statutory inquiry which was based on bad faith or an improper motive.
In conclusion the High Court found in favour of the interpretation put forward by the Attorney General and confirmed that a single trustee does have the necessary standing to seek review of a decision by the Commission to hold a statutory inquiry under Section 22 of the 2008 Act.