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: 8/16
Sitting in Chambers
THE CHARITY COMMISSION FOR NORTHERN IRELAND
The application of Sean Caughey ('the Applicant'), received on 28 February 2017, for permission to appeal to the High Court of Justice in Northern Ireland ('the High Court') one of the decisions of the Tribunal made on 20 February 2017 refusing the appeal of the Applicant against an Order made on by the Respondent on 30 November 2016 pursuant to section 66(2) of the Charities Act (Northern Ireland) 2013 (‘the Act’) directing the Applicant, as sole remaining trustee of a charity known as Newry and Mourne Carers Limited (‘the Charity’) to give an auditor appointed by the Respondent access to books, documents and other records of the Charity is refused.
1. The Applicant’s representative lodged an application on 28 February 2017 for leave to appeal to the High Court against the decision of the Tribunal made on 20 February 2017 ('the Decision'). This application was defective in that it was unsigned by the Applicant and did not state the Applicant’s address, nor that of his representive. It did not, therefore, comply with Rule 35(2) of the Charity Tribunal Rules (Northern Ireland) 2010 ('the Rules').
2. Without prejudice to the foregoing, in his application, the Applicant’s representative alleges, in summary terms, the following errors of law in the Decision:
(1) that the decision of the Respondent to open a statutory inquiry on 11 July 2016 into the affairs of the Charity, pursuant to section 22 of the Act 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 an officer of the Respondent had no lawful authority to make Orders on behalf of the respondent;
(3) that neither section 19 of the Interpretation Act (Northern Ireland) 1954 nor sections 7-10 of the Act permitted officers of the Respondent to make Orders on behalf of the Respondent, nor did those provisions permit the Respondent to delegate powers to its officers;
(4) nothing in the Act required the Respondent to refer to the provisions of the Interpretation Act (Northern Ireland) 1954 in carrying out its functions;
(5) nothing contained in sections 7-10 of the act permitted the Respondent to delegate its decision-making to its officers;
(6) that the Tribunal in the decision failed to take account of pertinent authorities put forward by the Applicant in support of his case;
(7) that it was in the public interest that the issue of the lawfulness of the section 66(2) decision made by the Respondent should be examined by the High Court as that issue had wider implications than the interest of the Applicant.
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 in respect of paragraph 2 of this decision (without prejudice to refusal of the application pursuant to paragraph 1 of this decision):
(1) the only decision of the Tribunal made on 20 February 2017 that is the subject of this application for permission to appeal to the High Court is that refusing the appeal brought by the Applicant against the decision made by the Respondent on 23 November 2016, pursuant to section 66(2) of the Act directing the Applicant, as sole remaining trustee of the Charity, to give an auditor appointed by the Respondent access to books, documents and other records of the Charity by 12.00 noon on 5 December 2016.
(2) In particular, the submission of the Applicant’s representative alleging that the decision of the Respondent to open a statutory inquiry into the affairs of the Charity on 11 July 2016, pursuant to section 22 of the Act, was unlawful, is not the subject of the application for permission to appeal to the High Court.
(3) There is nothing in the Act that prevents an officer of the Respondent, in pursuit of the requirements of the Respondent, making an Order pursuant to section 66(2) of the Act as part of ongoing investigations by the Respondent, pursuant to a statutory inquiry having been opened by it, pursuant to section 22 of the Act.
(4) In addition to the provisions of sections 7-9 of the Act, the Respondent has power, pursuant to section 10 of the Act, to do anything which is calculated to facilitate, or is conducive or incidental to the performance of any of its functions or general duties. This may include the making of a section 66(2) Order by one of its officers duly authorised to do so. This did not mean that the Respondent had delegated its decision-making powers to one of its officers in the case of the making of the section 66(2) Order dated 23 November 2016 directed to the Applicant.
(5) The Respondent is a body corporate, pursuant to section 6 of the Act. Accordingly, section 19 of the Interpretation Act (Northern Ireland) 1954 vests in the Respondent, as a corporate body, the right to have a common seal; the right to regulate its own procedure and business and the right to employ such staff as may be found necessary for the performance of its duties (the latter power also existing by virtue of Section 6(7) and paragraph 4(1) of Schedule 1 to the Act).
(6) Section 22(3) of the Act states that, for the purpose of a statutory inquiry into a charity (as was the case here), the Respondent, or any person appointed by the Respondent to conduct the inquiry, may, inter alia, direct any person to furnish documentation in relation to any matter at issue in the inquiry. It was open to the Respondent, having regard to other provisions of the Act and to section 19 of the Interpretation Act (Northern Ireland) 1954 to arrange its affairs to have an Order made by one of its officers who was duly authorised to do so and to which the seal of the Respondent was affixed: this did not amount to the Respondent delegating its decision-making power to one of its officers.
(7) The Tribunal was satisfied that the making of the said section 66(2) Order against the Applicant was lawful. The said Order clearly stated on its face that the officer of the Respondent who signed the Order was authorised to act on behalf of the Respondent and the Order itself was sealed by the Respondent.
3. The Tribunal, in determing the Applicant’s appeal, took into account all of the evidence and written and oral submissions presented by both parties. The Applicant made various submissions, and referring to various authorities, correctly addressing the issue of delegation of decision-making by statutory bodies. The authorities submitted by him were not, ultimately, determined by the Tribunal to be of relevance to the determination of the Applicant’s appeal.
4. In accordance with Rule 36(4) of the Rules, the Applicant is advised of his right to make application to the High Court, in writing, within one month of this decision being issued, for permission to appeal the decision of the Tribunal dated 20 February 2017 refusing his appeal against the decision of the Respondent to make an Order on 23 November 2016, pursuant to section 66(2) of the Act directing the Applicant, as sole remaining trustee of the Charity, to give an auditor appointed by the Respondent access to books, documents and other records of the Charity by 12.00 noon on 5 December 2016, within one month of this decision being issued.
Damien J. McMahon
Date: 20 March 2017