Francesca Quint, senior barrister at Radcliffe Chambers, is among lawyers saying how they think the charity tribunal could be made more effective
The review of the Charities Act 2006 has reopened the debate about the effectiveness of the charity tribunal and whether its remit is sufficient to provide proper accountability.
The charity tribunal's stated aims are to provide a low-cost, accessible forum for people to challenge decisions made by the Charity Commission and to develop charity law and regulatory practice.
The tribunal's website provides details of 16 appeals heard between January 2009 and February 2012. Half of these were struck out because they did not meet the criteria set out in Schedule 1C of the Charities Act 1993. This says which of the commission's decisions on issues such as removing a trustee or requiring an audit can be the subject of appeals.
Writing in Charity Law and Practice Review last year, the tribunal's principal judge, Alison McKenna, said that the "one area of dissent" in discussions leading up to the creation of the tribunal in the 2006 act was whether it should have powers to hear appeals against any decision of the commission, including "non-decisions", or if there should be a list of challengeable decisions as in Schedule 1C.
"The government of the day went for the 'list of decisions' approach, but in the light of the strike-outs we have made, it seems appropriate for the sector to revisit this debate," she wrote.
McKenna described Schedule 1C as "esoteric" and suggested the cases that had been struck out "should be looked at carefully by the sector in considering whether the tribunal's remit is sufficiently wide".
Commenting on the low number of cases generally, McKenna suggested some charities were simply "litigation-averse", and might prefer to use the regulator's internal review process. The commission's "lighter-touch" regulatory approach, she wrote, also meant that fewer decisions were subject to challenge in the tribunal.
McKenna said she hoped the review of the Charities Act, chaired by Lord Hodgson, would prompt a "good debate within the sector about what sort of appeal, review and reference rights it would want to see in place to take account of its current circumstances".
In its submission to the review, the Charity Commission says it "fully supports the concept of a tribunal", but argues that it "has not so far been wholly successful" in meeting either of its objectives.
But it is against widening the scope of the tribunal to review any of its decisions, which it says would undermine the commission's independence and "pose risks" to its capacity.
Francesca Quint (right), senior barrister at Radcliffe Chambers, has worked on high-profile sector cases at the tribunal. She says: "Several applications have been dismissed because they fell outside of the tribunal's jurisdiction, leaving appellants frustrated. The present detailed list of decisions that can be appealed or reviewed appears arbitrary in some ways."
Quint points out in particular that no redress is available to charities that wish to complain about the commission's refusal to exercise its decision-making powers.
The consensus among lawyers is that the tribunal's remit should be reviewed. Geoff Trobridge (right), head of the charities team at Lester Aldridge LLP, says "the jurisdictional rules are complex for a forum that was intended to be accessible for the litigant in person", and some seem illogical.
"Simplifying rules and removing anomalies would be better than indiscriminate expansion of the tribunal's jurisdiction," he says.