About this case:

• Court:
  High Court
• Judge:
  Madam Justice McBride

Rejecting the Commission’s contention that there was express provision to delegate its functions as it found necessary, Madam Justice Denise McBride also refused to find that there was an implied delegation.

Three appeals

The High Court dealt with three appeals all of which raised the same question of law: whether employees of the Commission acting alone can lawfully discharge the functions attributed to the Charity Commission for Northern Ireland by the provisions of the Charity Act (Northern Ireland) 2008.

In two of the appeals, the Charity Tribunal found that employees of the Commission could make decisions, but in the third appeal, it held that the Commission could not delegate the discharge of its decision-making functions to a member of staff.

No express provision for delegation

Section 6(8) of the Charity Act (Northern Ireland) 2008 applies section 19 of the Interpretation Act (Northern Ireland) 1954 to the Commission, and as a consequence, all the rights and powers set out in section 19 are vested in the Commission, being a body corporate:  This includes the right of the Commission to regulate its own procedure and business, and the right to employ such staff as may be found necessary for the performance of its functions. 

Madam Justice McBride noted that one of the objects of the Interpretation Act (Northern Ireland) 1954 was to reduce the “gobbledygook” in other Northern Ireland Acts so that they can be “confined to essentials without the tedious repetition of phrases which are only necessary to avoid misunderstanding”. 

Accordingly, Madam Justice McBride rejected the submission that the court should only have regard to section 19 if the provisions of the Charity Act (Northern Ireland) 2008 were ambiguous or there is a gap in its provisions. 

Madam Justice McBride said she was satisfied that the powers given to the Commission by section 19(1)(a)(v) “to regulate” its procedures did not provide the Commission with an express power “to delegate” any of its decision-making functions to staff.  

Madam Justice McBride also said that the power given by section 19(1)(a)(v1) to “employ such staff as may be found necessary for the performance of its functions” simply provided that the Commission has the power to employ staff to assist it in carrying out the functions of the Commission, and rejected the Commission’s submission that this provision gave it an express power to delegate its functions to staff. She added that to interpret it in the broad manner contended by the Commission and the Department for Communities would mean that the Commission would have a “blank cheque” to delegate all the functions entrusted to it by the Charity Act (Northern Ireland) 2008 to other persons or bodies when it so wished. 

Disagreeing with the submission that section 19 was equivalent to the provisions in England and Wales which permitted staff acting alone to make decisions, Madam Justice McBride said paragraphs 8 and 9 of Schedule 1 to the Charities Act 2011 (the legislative provision establishing the Charity Commissioners for E&W) expressly permitted this and that if section 19 allowed such an interpretation, those paragraphs would have been unnecessary. It was also relevant that the factual background there was different as Commission staff in E&W previously acted as lay commissioners.

Madam Justice McBride also rejected the submission from the Commission that sections 9 and 10 of the Charity Act (Northern Ireland) 2008 were consistent with the interpretation of section 19 that the Commission had been granted broad powers to regulate its own procedure. She said section 9 imposed a duty to use resources in the most efficient, effective and economic way and to be accountable and consistent, and that “it was difficult to see how consistent and accountable decisions could be made if the Commissioners were not themselves involved in decision making”. Furthermore, section 10, while permitting the Commission to take steps to assist, help, or ease the discharge of its functions; could not be interpreted as a general “escape” clause from the other statutory controls set out in the Charity Act (Northern Ireland) 2008.

Implied Delegation

The Commission and the Department submitted that if the court found that the Charity Act (Northern Ireland) 2008 did not make express provision for delegation of functions to staff, the court should find there was implied delegation. 

Madam Justice McBride considered that a strict approach to implied delegation should be taken and found there was no implied power to delegate to staff. 

She said that if she was wrong in this finding, the court then had to consider the extent to which the Commission would be entitled to delegate its powers and in particular whether there was an implied power to delegate the specific functions arising in the three appeals under consideration.  

Madam Justice McBride said that by introducing the Charity Act (Northern Ireland) 2008, the legislature had thought it necessary that there be proper oversight of changes to a charity’s objects and constitution and that an implied power to delegation would not extend to such matters.  She found that even if there were an implied power to delegate some functions, it would not extend to the decisions in the present appeals.

Statutory Corporation

The Commission submitted that an incorporated body is a body corporate and as such can act through its directors or employees. 

However, Madam Justice McBride said she had found that the Charity Act (Northern Ireland) 2008 did not grant the Commission an express power to delegate to staff and that there was no implied power of delegation.

As such, Madam Justice McBride said the only way for the Commission to carry out its decision-making functions was “either when it meets as a complete body or acts in accordance with the powers set out in paragraph 9 of Schedule 1 to the Charity Act (Northern Ireland) 2008”.

• by Seosamh Gráinséir for Irish Legal News