The validity of up to 170 orders made by the Charity Commission for Northern Ireland (the “Commission”) could be challenged as the Court of Appeal recently upheld the High Court decision that the Commission’s functions cannot be delegated to employees. The Commission have stated “The Commission’s regulatory work is continuing. While some decisions may be delayed and the volume of decisions made has been temporarily reduced, please be assured that work on applications, requests and queries is ongoing at this time.”
The background to this case is that in May 2019 Madam Justice McBride held, in McKee & Others v Charity Commission for Northern Ireland and Department for Communities  NICh 6, that the Commission can only make decisions when the organisation meets as a whole body, and such decisions cannot be discharged by employees.
The 2019 High Court case considered three appeals which concerned the interpretative powers of the Commission as outlined in the Charities Act (Northern Ireland) 2008. The Commission argued that the core legislation read in line with the Interpretation Act (Northern Ireland) 1954 allows for delegation of decision-making powers.
The High Court found that allowing the Commission to interpret the legislation so widely would be contrary to the intention of the legislature and would essentially allow the Commission to renounce all decision-making powers. The Judge also rejected the Commission’s proposal that such a power of delegation should be implied if not explicit in the legislation.
In upholding the High Court judgement, Lord Justice McCloskey determined that the role of the Commission as a body is to make all decisions required to fulfil its statutory powers, obligations and functions as outlined in legislation. The Charities Act (Northern Ireland) 2008 gives the Commission far reaching powers to determine whether or not institutions are charities, to facilitate the better administration of charities, and to use its resources in the most efficient, effective and economic way when performing its functions. The Court of Appeal judgement stated that such duties differ substantially from the role of the Commission’s employees whose responsibility “is one of research, information gathering, briefing, advice and recommendation…”
In the Commission’s recent legal update it stated that “The Court of Appeal ruling relates to how the Commission makes decisions. The Commission will now consider the ruling in full and will not be providing any further comment at this time.”
Catherine Cooney, Partner with Worthingtons Solicitors advising charities and businesses on a daily basis. Regularly advising on charity trustee duties and liability, good governance, mergers and collaborations, serious incidents, concerns and insolvency. Catherine has been ranked in Chambers for the last two years in Charity Law in Northern Ireland and delivers board training to charity trustees and directors. For any charity law advice please telephone 02890279500 or email firstname.lastname@example.org
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