NI: High Court finds single trustees have standing to seek review of Charity Commission for Northern Ireland decisions
The High Court of Justice in the Northern Ireland Chancery Division has found that the Charity Tribunal incorrectly ruled that individual charity trustees did not have standing to seek review of decisions by the Charity Commission for Northern Ireland.
The background to the case concerned a decision by the Charity Commission to institute a statutory inquiry under s.22 of the Charities Act (Northern Ireland) 2008 into the management of the Disabled Police Officers Association Northern Ireland.
This resulted in a decision to suspend one the Association’s trustees, Mr William Allen. Mr Allen applied for a review of both the initial inquiry and his suspension to the Charity Tribunal, but was informed the Tribunal did not have jurisdiction to hear his application.
Although Mr Allen has since resigned as a trustee, the Attorney General for Northern Ireland appealed the Tribunal’s decision, arguing that it erred in law in deciding that it did not have jurisdiction to hear Mr Allen’s application.
The right to seek review is contained within Schedule 3 of the 2008 Act, and provides that review can be sought by the Attorney General, the persons who have control or management of the institution, and (if a body corporate) the institution itself.
The Attorney General argued that the reference to “persons” within the Schedule should be taken to include a singular person, therefore including an individual trustee, while the Commission claimed that the right to seek a review is restricted to those persons who have control or management of the charity.
The Charity Tribunal had held that the Commission’s interpretation was correct, finding that the wording had been chosen to limit the range of applications.
Furthermore, it found that as the Commission’s ability to institute an inquiry is an intervention against the charity as a while, 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, it found that as the Attorney General was able to apply for a review, any possible abuse of the Commission’s power would not go unchallenged.
However, the High Court found that the Tribunal had erred in this finding.
Citing the Interpretation Act (Northern Ireland) 1954, they noted that when that Act applies, words in the singular shall include the plural, and words in the plural shall include the singular. While Acts could explicitly state that the Interpretation Act did not apply, this was not the case in the 2008 Act.
Further, the High Court disagreed with the Tribunal’s belief that interventions by the Commission are exclusively against the charities, as the power to intervene could involve the suspending of a trustee.
As the Court held, “After all each and every trustee of a Trust legally holds a property or rights in trust for another or others. A Tribunal cannot be expected to look at whether a trustee, if there is more than one, on any particular issue concerning the Trust property was in the majority or the minority.”
The Court also noted that as a review was an alternative statutory remedy to judicial review, and as a trustee would undoubtedly have standing to seek judicial review, a situation could arise where the Commission would argue that the trustee should have exhausted alternative remedies, following e.g. Watch Tower Bible, Tract Society of Britain v Charity Commission EWHC 4135, but the trustee would have been unable to do so. This result could not have been intended by the draftsmen.
Finally, the Court found that a broader interpretation better furthered the ends of justice.
“For example, where the majority on the Board of Trustees have sought to unlawfully persuade the Commission to hold an enquiry to disadvantage a single trustee or minority trustees, then that trustee or those trustees in the minority would be unable to take advantage of the right to seek a review of any decision to hold a statutory enquiry which was based on bad faith or an improper motive.”
The Court cited Bennion on Statutory Interpretation (6th Edition) at page 727, which states that:
“It is a principle of legal policy that laws should be just, and the court decisions should further the ends of justice. The court, when considering, in relation to the facts of the instant case, which of opposing constructions on the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.”
Although the result of the case was academic, due to Mr Allen’s resignation, the Court noted that neither side had attempted to argue that the appeal was one to which the decision in R v Secretary of State for the Home Department (ex parte) v Salem 1 AC 45 applies and that the court should decline to hear the case.
Thus, the 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 a review of a decision to hold a statutory inquiry under Section 22 of the 2008 Act.