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23 September 2020

13: Charities and judicial review

The case of the Wimbledon and Putney Commons Conservators attracted attention over the summer, when it was reported that the Charity Commission had watered down criticisms of the charity’s trustees in an inquiry report after one of them threatened the regulator with judicial review (JR). The allegations were denied on all sides, but the stories made JR look rather impressive, with the mere mention of a claim apparently having prompted a reversal by the Commission.

There is no doubt that JR is a powerful tool for influencing public bodies. Defendants to a JR know that their decision-making processes will be subjected to intense scrutiny in public, and any finding by the court that the defendant has acted unlawfully can be hugely embarrassing for all involved; on top of that, a significant diversion of resources will be required, in management time and legal costs, to ensure that a proper defence is put up. A realistic challenge can, therefore, concentrate minds and cause a public body to look again at its actions through the prism of a court’s gaze.

The usefulness of JR as a tool for challenging the Commission is, however, limited in that most categories of charity-specific decisions made by the Commission are identified in Schedule 6 to the Charities Act 2011 as being subject to review or appeal in the First Tier Tribunal (General Regulatory Chamber). In such cases, an aggrieved charity’s recourse would have to be a challenge under the 2011 Act – an application for JR which sought to bypass the Tribunal would fall at the first hurdle (the permission stage).

That said, any decision that is not specifically identified in Schedule 6, including Commission policy decisions with a broad sectoral impact, will be amenable to JR; the Independent Schools Council’s successful 2011 challenge to the Commission’s guidance on public benefit is a notable example.

And in the Wimbledon case, it appears that the trustee had (probably correctly) concluded that the publication of the Commission’s report fell outside the scope of Schedule 6 – albeit he could have simply been betting that the Commission would not call his bluff.

Charities and JR more broadly

JR can be used to challenge decisions made by any public body, including the Commission (or any other body exercising public law functions). It can be a powerful way for a charity to advance its objects when they come into collision with public policy.

 A JR can only be pursued by someone with a ‘sufficient interest’ in its outcome, but the courts’ relatively loose interpretation of that phrase has generally allowed charities to bring proceedings as claimant. The recent challenge by Friends of the Earth and Plan B to the Department for Transport’s decision to authorise a third runway at Heathrow – successful in the Court of Appeal, but being considered by the Supreme Court next month – is a good example. (JR features particularly heavily in the arsenal of environmental charities, since environmental claims attract additional costs protections).

Alternatively, charities can seek to assist the court by ‘intervening’ in claims brought by others. Charities are often uniquely placed to advise on the broader, ‘macro’ implications of a policy or decision which is being challenged at a ‘micro’ level, and can use their intervention to advocate for a particular outcome in line with their objects.

Interveners do not recover their legal costs, and since 2015 they have been at risk of adverse costs orders if their submissions are deemed insufficiently helpful – but parties have to seek permission to intervene, and it will be a rare case where the court grants permission but subsequently decides that the intervention was unhelpful after all.

The government’s review

 The government has asked a panel of experts to ‘look at’ JR, with a view to reforming it. The newly-published call for evidence confirms that standing to bring a claim is one of the matters under review, as is ‘costs and interveners’.

We can perhaps expect a revival of the approach taken by the coalition government in 2013, when it proposed sweeping changes to JR, including a provision that claims could only be brought by people with a ‘direct interest’ in their outcome (which would have prevented most claims by charities).

Pushback at the time, first from consultation responses and then from the House of Lords, saw the harsher proposals dropped from the Criminal Justice and Courts Act 2015. Having seen the government lose high-profile JRs in the Supreme Court over Brexit and prorogation, however, the current administration seems determined to have another go at restricting the scope for challenges to be brought – which in itself illustrates how powerful JR is.

The panel is due to report later in the year. Whatever it concludes, JR will remain: it is a creature of the common law, created by judges, and now entrenched in our unwritten constitution. But all indications so far have been that the government is intent on making it harder for claims to be pursued. The symbiotic relationship between charities and JR remains in place – but the clouds are gathering.

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