Charity challenges lawfulness of order made by the Charity Commission

Some of you may have read the Court of Appeal’s recent decision in Regina (Watch Tower Bible & Tract Society of Great Britain and Others) v Charity Commission which found that a charity was entitled to challenge the lawfulness of a production order made under section 52 Charities Act 211, by way of judicial review.

The Watch Tower Bible & Tract Society is a charity aimed at advancing the Christian religion as practised by Jehovah’s Witnesses. Following three trials of former members of Jehovah’s Witnesses’ congregations on charges of historic sex abuse, which were unconnected to the charity, the Commission decided to initiate a statutory inquiry into the charity under section 46 Charities Act 2011. The inquiry related to the charity’s safeguarding policy for vulnerable beneficiaries, particularly children who had been subject to or made allegations of sexual abuse by individuals connected with Jehovah’s Witnesses congregations.

In addition, the Commission also issued a production order under section 52 Charities Act 2011 ordering the charity to produce a wide range of documents.

The charity and its trustees sought judicial review of the Commission’s decisions to initiate the inquiry and to issue a production order on the grounds that:

  1. The Commission had acted disproportionately by commencing an inquiry which was vague in its scope and interfered with their religious beliefs and practices contrary to the European Convention on Human Rights. The Commission had breached its duty to act fairly and the decision was therefore unlawful.
     
  2. The scope of the production order was disproportionate as the information sought was of a personal and sensitive nature and fell within the meaning of the Data Protection Act 1988.  This was in breach of the Convention rights of the individuals affected.

Mr Justice Dove refused the charity permission to proceed with a claim for judicial review against decisions of the Charity Commission on the sole basis that the applicants should have appealed to the First Tier Tribunal. The applicants appealed to the Court of Appeal, who dismissed the appeal in relation to the decision to initiate a statutory inquiry, but allowed the appeal in respect of the production order.

In reaching its decision, the Court of Appeal considered the scope of an appeal under section 320 Charities Act 2011 and whether the jurisdiction exercisable by the Tribunal under section 320 to entertain an appeal against a section 52 production order included a power to address a complaint that the order was unlawful. 

The Court found that a section 52 order had to be connected in some way to the charity in question. It also had to be ‘relevant to the discharge of the functions of the Commission.’  The Court concluded that these words should be given their ordinary, natural meaning. Section 320 did not allow an appeal on the grounds that a section 52 order had been unlawfully made and the Court held that the applicants could raise their challenge to the section 52 order by way of judicial review proceedings.