Case No. 3/13

THE CHARITIES ACT (NI) 2008

THE CHARITIES ACT 2008 (TRANSITIONAL PROVISION) ORDER (NI) 2011

THE CHARITY TRIBUNAL RULES (NI) 2010

IN THE CHARITY TRIBUNAL FOR NORTHERN IRELAND

BETWEEN:

TREVOR MCKEE

Applicant

-and-

THE CHARITY COMMISSION FOR NORTHERN IRELAND

Respondent

_________________________________________________________________________

DECISION

The Tribunal strikes out the purported application filed by the Applicant.

STATEMENT OF REASONS

1.      This matter concerns the affairs of the Lough Neagh Rescue Limited (“the charity”). The Charity Commission (“the Respondent”) on 3 May 2013, acting pursuant to Section 22 of the Charities Act (Northern Ireland) 2008 (“the 2008 Act”) instituted an inquiry into the affairs of the charity.

2.      In pursuance of that inquiry, and in exercise of its powers under Section 22(3)(a) and (b) of the 2008 Act, the Respondent directed Mr Trevor McKee (“the Applicant”), a long-serving member of the charity, to produce to it the documents specified in a notice to him dated 3 May 2013 (“the Direction”).

3.      In his initial application to the Tribunal, the Applicant stated that handing over the documents would not best serve the interests of the Charity and its beneficiaries. As hereinafter appears, the Applicant later also made clear that he challenged the Respondent’s decision to institute the inquiry.

4.      In this matter, the Applicant appeared in person and Mr Richard Shields of Counsel appeared on behalf of the Respondent.

5.      This matter was listed before the Tribunal on 25 June 2013 by way of preliminary hearing, pursuant to Rule 14 of the Charity Tribunal Rules (Northern Ireland) 2010 (“the 2010 Rules”), to determine whether or not the Tribunal has jurisdiction to hear what might neutrally be described as the Applicant’s complaint in respect of the Direction.

6.      This matter was first listed before the Tribunal on 23 May 2013, when the Tribunal gave directions with a view to the parties making and exchanging written submissions on this question in advance of the preliminary hearing. These submissions were duly made and exchanged. The Tribunal records its thanks to the parties, both for these written submissions and for their oral submissions before the Tribunal at the preliminary hearing.

7.      It was common case that under Schedule 3 to the 2008 Act, the Tribunal did not have any express or specific power or jurisdiction to entertain a complaint in respect of the Direction.

8.      As appeared from his written submissions, the Applicant contended that that apparent omission from the legislation contravened his rights under the European Convention on Human Rights. The Applicant drew specific attention to Articles 6 (right to a fair trial); Article 8 (right to privacy); and Article 10 (right to freedom of expression).

9.      In his written submissions, Mr Shields’ primary contention was that the 2008 Act was clear in its terms: there was no right of appeal or review or other complaint against the Direction. He also contended that the Applicant’s “civil rights”, within the meaning of Article 6 of the ECHR were not determined by the Direction.

10. At the hearing, the Tribunal raised with Mr Shields whether it might be that, even if Mr McKee’s civil rights were not being determined, a civil obligation – i.e. the obligation to produce the documents – was being determined, without any apparent means of redress. In response to that point, Mr Shields drew attention to Sections 174 and 176 of the 2008 Act which provide that in the event of non-compliance with a Direction, the Charity Commission may apply to the High Court to have it deal with disobedience to a Direction of the Respondent: in such circumstances, the propriety of the Direction would fall to be considered. When the Tribunal queried with Mr Shields whether a person in the Applicant’s position could apply for leave to apply for judicial review of a decision of the Respondent to issue a Direction, Mr Shields appeared to accept that that step could be taken.

11. The Tribunal invited the Applicant to respond to these points. The Applicant accepted that he could apply for judicial review of the decision to issue a Direction, and that he could defend any application to compel him to comply with a Direction – both of which courses would allow the High Court to look at the Direction. However, the Applicant made the point that such apparent avenues of redress were academic so far as he was concerned, given the inevitable cost of such proceedings.

12. In addressing this question, the Tribunal was mindful of that fact that it is a statutory Tribunal with a statutorily defined and prescribed jurisdiction. The Tribunal does not have the right or power to take unto itself a jurisdiction which has not been conferred upon it by the legislature.

13. Equally, the Tribunal was mindful of its duties under the Human Rights Act 1998. However, when, on the one hand, the scheme of the 2008 Act is analysed, and on the other hand, the judicial review jurisdiction of the High Court is appreciated, it is clear to the Tribunal that the Applicant is not without remedy in the face of a Direction from the Respondent. He does have remedies, but the legislature has decided that they are not to be provided by the Tribunal.

14. On this basis, the Tribunal unanimously concludes that it does not have jurisdiction to entertain the Applicant’s complaint about the Direction.

15. Mindful of its obligations to deal with the matters before it in a just, expeditious and economical manner, the Tribunal used the opportunity of the hearing to address another aspect of the concerns of the Applicant. The Applicant had purported to file an application for a review, on behalf of the charity, in respect of the decision of the Respondent to instigate an inquiry into the affairs of the charity. At the directions hearing, Mr Shields had indicated that the Respondent would challenge the right of the Applicant to take any such proceedings under the 2008 Act in the name of the charity.

16. In the light of that anticipated challenge, as part of their written submissions in the context of the issue to be determined at the preliminary hearing, each party had set out in writing its position on the question of the Applicant’s standing. The Applicant had produced a document which showed the service which he had provided to the charity and, by extension, the public, over many years. It was also clear that the Applicant is a director of the company by which comprises the charity.

17. As against that, Mr Shields adduced an email from the company secretary of the charity, Mr Terry Walsh, to the Respondent, dated 3 June 2013, which confirmed that the Board of the charity did not oppose the Respondent’s decision to instigate an inquiry.

18. At the hearing, the Tribunal drew attention to Rule 5 of the 2010 Rules which allows the Tribunal if it thinks fit to order any appeal notice (which includes an application) to be struck out at any stage of the proceedings, on a number of grounds, including that it discloses no reasonable grounds for bringing an application.

19. In the light of that provision, both parties confirmed that they were in a position to address the question of the Applicant’s standing as regards any appeal or application on behalf of the charity. Notwithstanding that indication, the Tribunal rose for a time to allow the Applicant time to marshal his representations on this point.

20. When the Tribunal reconvened, the Applicant gave evidence as to his role in the charity, as to composition of the Board, and as to the views of members about the role of the Respondent. It is fair to say that the Applicant painted a picture of a charity which, regrettably, endures significant differences of opinion as between its members.

21. In cross-examination by Mr Shields, the Applicant accepted that the email from Mr Walsh accurately reflected the views of the majority of the members of the Board of the charity, albeit he qualified this by saying that he did not accept that the Board necessarily reflected the views of the members of the charity.

22.  In these circumstances, the Tribunal unanimously concludes that the Applicant does not have standing to bring an application in respect of the Respondent’s decision to initiate an inquiry: on the contrary, it is clear that the Board of the charity does not wish any application to be pursued. On that basis, the Tribunal determines that there are no reasonable grounds for the Applicant to bring the application for a review.

23. Accordingly, the Tribunal strikes out the purported application filed by the Applicant.

Mr Adrian Colmer BL
Chairman of the Charity Tribunal

2nd July 2013