On 19 February 2020, the Court of Appeal delivered its judgment in the case of McKee & Others v Charity Commission for Northern Ireland, upholding a legal challenge to the delegation of decision-making powers by the Commission to members of staff.
The case addressed a technical point of law, namely that all Commission orders and decisions must be made by the Board of Commissioners or a committee to include Commissioners with delegated authority, rather than Commission staff following manuals approved by Commissioners.
The court ruling said all Commission decisions must be made by the Board of Commissioners, or a committee with delegated authority, rather than by Commission staff.
The Commission’s Response
The Charity Commission has published a statement on its website which you can read in full here. According to the Commission, if your charity was registered prior to May 2019, it is likely that the decision was made by a member of staff and not a panel of Commissioners and is therefore considered to be void at this time.
According to the Frequently Asked Questions section of the statement, charities “do not need to take any action, and may continue to operate as normal. The Commission is working with the Department for Communities to seek a permanent resolution to the issue as soon as possible and will provide guidance on this once a way forward has been identified. The fact that you are a charity in law is not altered by your temporarily not being a registered charity.”
Statement from the Department for Communities
The Department for Communities issued the following statement:
“The Department accepts the Court of Appeal Judgment. The determination of the Court raises complex issues in respect to charity regulation in Northern Ireland from 2013 when the Charity Commission began registration and going forward. As such, the Minister will want to understand all of the potential impacts of the Judgment on past decisions to determine what is in the best interests of all stakeholders and to ensure that any future arrangements are fully considered as they will set the course for charity regulation in Northern Ireland and must be in the wider public interest.
“The Department is assured that the Charity Commission has introduced interim procedures to ensure decisions can be taken in compliance with the Judgment. The Minister will shortly determine how the Department intends to respond to the issues raised by the Judgment. In the meantime the Department can give an assurance to those charities that were unlawfully registered that they remain charities in law and need do nothing differently in the interim.”
NICVA is lobbying the Department for Communities to get a resolution to this situation. However, this will require a change to the Charities Act (NI) 2008 and that should be completed as quickly as possible. Although we recognise that this will take some time.
In the meantime, NICVA recommends that Charities continue to operate as normal. It advises that charities continue to submit their required accounts and reports by the deadline as a matter of best practice. Charities are advised to proceed with caution when they need to make major decisions and that they seek legal advice where necessary.
You can read NICVA’s full article here.