The
validity of up to 170 orders made by the Charity Commission for Northern
Ireland (the “Commission”) could be challenged as the Court of Appeal recently upheld
the High Court decision that the Commission’s functions cannot be delegated to
employees. The Commission have stated “The Commission’s regulatory work is
continuing. While some decisions may be delayed and the volume of decisions
made has been temporarily reduced, please be assured that work on applications,
requests and queries is ongoing at this time.”
The
background to this case is that in May 2019 Madam Justice McBride held, in McKee
& Others v Charity Commission for Northern Ireland and Department for
Communities [2019] NICh 6, that the Commission can only make decisions when
the organisation meets as a whole body, and such decisions cannot be discharged
by employees.
The
2019 High Court case considered three appeals which concerned the
interpretative powers of the Commission as outlined in the Charities Act
(Northern Ireland) 2008. The Commission argued that the core legislation
read in line with the Interpretation Act (Northern Ireland) 1954 allows
for delegation of decision-making powers.
The
High Court found that allowing the Commission to interpret the legislation so
widely would be contrary to the intention of the legislature and would
essentially allow the Commission to renounce all decision-making powers. The
Judge also rejected the Commission’s proposal that such a power of delegation
should be implied if not explicit in the legislation.
In
upholding the High Court judgement, Lord Justice McCloskey determined that the
role of the Commission as a body is to make all decisions required to fulfil its
statutory powers, obligations and functions as outlined in legislation. The Charities
Act (Northern Ireland) 2008 gives the Commission far reaching powers to
determine whether or not institutions are charities, to facilitate the better
administration of charities, and to use its resources in the most efficient,
effective and economic way when performing its functions. The Court of Appeal
judgement stated that such duties differ substantially from the role of the
Commission’s employees whose responsibility “is one of research, information
gathering, briefing, advice and recommendation…”
In
the Commission’s recent legal update it stated that “The Court of Appeal
ruling relates to how the Commission makes decisions. The Commission will now
consider the ruling in full and will not be providing any further comment at
this time.”
For any charity law advice please telephone 028 9043 4015 or email info@worthingtonslaw.co.uk
