THE CHARITIES ACT (NORTHERN IRELAND) 2008
THE CHARITIES ACT (NORTHERN IRELAND) 2013
THE CHARITY TRIBUNAL RULES (NORTHERN IRELAND) 2010
The Charity Tribunal for Northern Ireland
Application Reference: 9/15
Sitting in Chambers
THE CHARITY COMMISSION FOR NORTHERN IRELAND
The application of Trevor McKee ('the Applicant'), received on 21 February 2017, for permission to appeal to the High Court of Justice in Northern Ireland ('the High Court') the decision of the Tribunal made on 10 February 2017 refusing to extend time to admit for hearing an application brought by the Applicant on 22 December 2015 to challenge the opening of a statutory inquiry ('the Inquiry') by the Respondent, on 3 May 2013, pursuant to section 22 of the Charities Act (Northern Ireland) 2008 ('the Act') into a charity known as Lough Neagh Rescue ('the Charity') is refused.
1. The Applicant lodged an application on 21 February 2017 for leave to appeal to the High Court against the decision of the Tribunal dated 10 February 2016 ('the Decision'). This application was defective in that it was unsigned by the Applicant and did not state his address. It did not, therefore, comply with Rule 35(2) of the Charity Tribunal Rules (Northern Ireland) 2010 ('the Rules'). However, I have decided that these irregularities may be waived.
2. In his application, the Applicant alleges, in summary terms, the following errors of law in the Decision:
(1) that the decision to open the Inquiry on 3 May 2013 was taken not by the Respondent but by an officer of the Respondent for which there was no lawful authority and was, therefore, ultra vires and void;
(2) that the Respondent was incorrectly identified by the Tribunal in the Decision as the Charity Commission for Northern Ireland ('the Commission');
(3) that the Commission has no power to delegate the exercise of its statutory powers to its staff;
(4) that the Tribunal failed to recognise that an officer of the Commission had no power to open the Inquiry;
(5) that the finding of the Tribunal that the application of the Applicant, made on 22 December 2015, was a new application, rather than the resurrection of a former application brought by the Applicant on 9 May 2013, to challenge the opening of the Inquiry was an error of law;
(6) in those circumstances, the application brought by the Applicant on 22 December 2015 should have been treated as the application made on 9 May 2013 and time extended;
(7) that the Tribunal erred in finding that the avenue of an appeal to the High Court against the said decision of the Tribunal made on 2 July 2013 had been open to the Applicant;
(8) the finding of the Tribunal that no remedy was available to the Applicant exposed potential for an abuse of process by the Respondent and it was irrelevant that the Inquiry, or any statutory inquiry, had ended at the time the application to challenge the Inquiry was made;
(9) that this finding was incompatible with the provisions of the Human Rights Act 1998;
(10) that the Tribunal erred in accepting the submission of the Respondent that the Inquiry had been opened by the Commission and rejecting the submission of the Applicant that it was opened by an officer of the Respondent.
3. I have carefully considered each of the grounds of appeal advanced by the Applicant. I am satisfied that none of those grounds raise any arguable error of law, as alleged, for the reasons set out in the Decision. I also add the following specific reasons:
(1) On the oral submission made by the legal adviser for the Respondent at the hearing on 3 February 2017, I was satisfied that the Inquiry was opened on 3 May 2013 by the Respondent, that is, by a resolution of the Charity Commissioners in meeting. The fact that the Order to that effect, when issued to the relevant parties, was signed by an officer of the Respondent does not mean that the said officer made that Order or that the Order was not made at a meeting of the Commissioners. The only argument to the contrary was an oral submission made by the Applicant at the hearing. The Tribunal accepted the submission made by the Respondent.
(2) In all matters that come before the Tribunal, whether by way of appeal or by way of application, the Commission is always a Respondent (and almost invariably will be the only Respondent). If the Applicant is submitting that the Tribunal should have found that an officer of the Respondent (that is, the Commission, rather than the corporate Commission) should have been the Respondent, then that submission is rejected as being misconstrued in law.
(3) The only statutory power of the Respondent at issue in this matter was the power of the Respondent to open the Inquiry. I accept that this power cannot be delegated to an officer of the Respondent. However, the Inquiry was opened pursuant to a decision of the Respondent.
(4) The application before the Tribunal was an application lodged by the Applicant on 22 December 2015 purporting to challenge the opening of the Inquiry on 3 May 2013. It was, therefore, not only very considerably out of time (by some 1287 days) but, in addition, the Inquiry was no longer extant, having ended on 20 January 2015. Accordingly, even if time had been extended by the Tribunal to admit the application, the only remedy that available to the Applicant, if he were to have been successful in his substantive application, pursuant to statute, was that the Tribunal would order the Respondent to end the Inquiry. This is a matter of statute law and was not a discretionary decision made by the Tribunal. Accordingly, no human rights issue was engaged in the proceedings before the Tribunal in respect of this discrete issue.
(5) The Applicant's argument that his application lodged on 22 December 2015 was not, in fact, a new application, but was a 'resurrection' of his former application brought by him on 9 May 2013 and dismissed by the Tribunal on 2 July 2013, that decision not having been appealed by the Applicant to the High Court, was also a misconceived argument in law. The decision of the Tribunal made on 2 July 2015, not having been appealed to the High Court, remained an extant and valid decision of the Tribunal.
(6) It was at all times open to the Applicant to appeal the decision made by the Tribunal on 2 July 2015 in respect of the Applicant's former application to the High Court. This avenue is clearly set out in statute. IIt is important to note that the Applicant trades as Probityaccni, an organisation that offers its services to persons who wish to challenge decisions of the Respondent before the Tribunal. Accordingly, the Applicant, in particular, must be taken to be fully aware of an Applicant's right of appeal to the High Court from decisions of the Tribunal. The Applicant clearly decided not to avail of his statutory right of appeal (subject to leave being granted by either the Tribunal or the High Court).
4. In accordance with Rule 36(4) of the Rules, the Applicant is advised of his right to make application to the High Court of Justice in Northern Ireland in writing for permission to appeal the decision of the Tribunal dated refusing to extend time to admit the application of the Applicant lodged on 22 December 2015 challenging the decision of the Respondent made on 3 May 2013 to open the Inquiry, within one month of this decision being issued.
Damien J. McMahon
Date: 13 March 2017