R (Watch Tower Bible & Tract Society of Britain) v Charity Commission

The Court of Appeal has given judgment in an important case on the approach to alternative remedies in judicial review.

In 2014, the Charity Commission opened a statutory inquiry into the leading Jehovah’s Witness charity in the UK under section 46 of the Charities Act 2011 (“the 2011 Act”). The inquiry is to investigate how the charity safeguards vulnerable beneficiaries. The Commission also made an order under section 52 requiring the charity to provide copies of relevant documents.

The charity sought judicial review of the Commission’s two decisions. The Commission resisted the claim, including on the basis that the charity ought to have pursued alternative remedies in the First-tier Tribunal (“FTT”), which has jurisdiction under the 2011 Act to review decisions to open inquiries and to hear appeals against section 52 orders. At first instance, Dove J held that the charity had failed to exhaust effective alternative remedies in respect of both decisions and accordingly refused permission to apply for judicial review.

The Court of Appeal dismissed an appeal by the charity in respect of the inquiry decision. The FTT’s review jurisdiction under section 321 of the 2011 Act requires it to apply the principles which would be applied by the High Court on an application for judicial review. The charity’s argument that the FTT’s powers of relief were more limited than those of the High Court was incorrect. Although the FTT’s power is a “power to direct the Commission to end the inquiry”, rather than to quash the decision to open the inquiry, the FTT nevertheless has equivalent powers to the High Court in addressing a complaint that an inquiry is unlawfully broad in scope.

The Court of Appeal allowed the charity’s appeal in respect of the section 52 order, on the basis that, properly construed, the FTT’s jurisdiction under section 320 to hear appeals against section 52 orders does not allow the FTT to rule on whether the order was lawful. Section 320 prescribes only two grounds on which the FTT may allow such appeals, namely that the information or document sought does not “relate to a charity” or is not “relevant to the discharge of the functions of the Commission”. The latter phrase requires the FTT to ask whether, as a matter of fact, there is any connection between the order and the discharge of one or more of the Commission’s functions; it cannot be read as referring to the lawful discharge of those functions.

The Court of Appeal therefore ordered that the case be remitted to the High Court for a decision on whether permission should be granted in respect of the challenge to the section 52 order.

The judgment is available at:
http://www.bailii.org/ew/cases/EWCA/Civ/2016/154.html
 
Iain Steele acted for the Charity Commission.