Recommendation 40 of the Law Commission review argued that it should be possible for authorisation for charity proceedings, under section 115 of the Charities Act 2011, to be sought from either the court or the Charity Commission where the Commission had an apparent or actual conflict of interest.
The sector was supportive of this suggestion, which would provide reassurance for those seeking authorisation, and ensure the Charity Commission is not suspected of refusing authorisation for reasons not to do with the merits of the proceedings.
The government has rejected this recommendation, citing concern that this would lead to more proceedings being taken to the court which could be resolved by a non-legal remedy. While we appreciate this concern, and do not wish to see more of these cases pursued through the court, we think this could be addressed by ensuring that the court takes into account the likelihood of resolution before granting authorisation.
It remains a concern that there could be questions about the role of the Charity Commission in certain cases, and we would encourage the government to reconsider the rejection of this recommendation.
Permission of the Attorney General
The Law Commission also recommended removing the requirement for the Charity Commission to obtain the consent of the Attorney General before making a reference to the Charity Tribunal on a question concerning charity law or its application to a particular case. To avoid duplication, the Commission and Attorney General would instead provide notice when a reference was being sought.
The Charity Commission is well-placed to highlight potential challenging issues within charity law, and the current requirement for consent presents an unnecessary barrier to ensuring issues with charity law can be considered and addressed by the Tribunal.
In response to the Law Commission’s consultation, the Attorney General at the time stated that removing the consent requirement 'would enable the Charity Commission to contribute constructively towards the development of charity law … without the need for the duplication of functions in requesting the consent of the Attorney General.'
We agree with the Law Commission’s original recommendation, and would encourage the government to reconsider its rejection. While the government is entitled to change its mind, given the support of the previous Attorney General for this proposal, at the very least the government should set out clearer reasoning for why it has chosen to reject this recommendation.
Law Commission, Technical Issues in Charity Law – Analysis of Responses, 2017, p364