Rachel Toner: Decision-making authority of Charity Commission curbed
Rachel Toner, solicitor at Carson McDowell, explores a recent court judgment on the powers of Northern Ireland’s charity regulator.
The Court of Appeal have affirmed the decision of the High Court that the staff of the Charity Commission Northern Ireland (CCNI) do not have any decision making powers when acting alone.
CCNI filed the appeal in respect of the decision of Madam Justice McBride in May 2019 in the case McKee & Others v Charity Commission for Northern Ireland and Department for Communities  NICh 6. It is claimed that the lawfulness of up to 170 orders previously made in the name of the CCNI could now be open to challenge. Should such challenges arise, it will place further strain on the CCNI’s waning resources and distract from its other functions.
The Charity Act (Northern Ireland) 2008 brought widespread reform to charity law in Northern Ireland. Pursuant to the provisions of the 2008 Act, the CCNI was established in 2009 as the independent regulator of charities in NI. It is a non-departmental public body sponsored by the Department for Communities and seven part-time Commissioners were appointed. The CCNI is the independent regulator of all charities in Northern Ireland and its extensive powers are set out in the 2008 Act, which include, determining whether institutions are charities, facilitating the better administration of charities and investigating apparent misconduct or mismanagement of charities and taking remedial or protective action thereto.
McKee & Others v CCNI 2019
The proceedings dealt with three appeals from the Charity Tribunal, all of which centred on the same issue of law, being the statutory interpretation of the 2008 Act and the Interpretation Act (Northern Ireland) 1954 and whether same provided that the functions of the CCNI can be lawfully discharged by CCNI staff acting alone.
Madam Justice McBride considered how section 6(8) of the 2008 Act applies section 19 of the 1954 Act to the CCNI and as a consequence, all powers set out in section 19 are vested in the CCNI, which includes the right to “regulate its own procedure and business”.
It was held that the power to “regulate” did not give CCNI an express power to “delegate” its functions to staff following consideration of the definitions of each power. Further, Madam Justice McBride stated that if the provisions of the 1954 Act were interpreted in the manner submitted by CCNI, it would be a “blank cheque” for the CCNI to delegate all functions and “abdicate all decision making responsibilities” and such a broad interpretation would not align with the legislature’s intent.
The CCNI and the Department submitted that if the court found that the 2008 Act did not make express provision for delegation of functions to staff, the court should find there was implied delegation. However, Madam Justice McBride considered that a strict approach to implied delegation should be taken and as such found there was no such implied power to delegate.
CCNI and the Department of Communities appealed the decision, but the Court of Appeal upheld the High Court decision and accordingly the CCNI only have authority to make decisions when it meets as a complete body. Lord Justice McCloskey made the distinction that the role of the CCNI staff was that of research, briefing and making recommendations yet it is for the CCNI to make all decisions in the discharge of their powers.
The importance of the function of the CCNI in overseeing charities in Northern Ireland was underscored within the judgment, owing to the correlation between public confidence in charities and confidence in their regulation.
In response to the Court of Appeal decision, the CCNI have stated they “will now consider the ruling in full and will not be providing any further comment at this time.” Delays are anticipated in the processing of any further decisions, whilst the CCNI adjust their processes in compliance with the ruling.