The Charity Commission board member Orlando Fraser QC wanted the statutory inquiry he called for into the Joseph Rowntree Charitable Trust to have a remit similar to one that is under challenge in the courts for allegedly being a "fishing expedition", Third Sector has established.
In an email sent to some colleagues in February, and disclosed in a recent court case, Fraser recommended "the opening of an urgent Watchtower-type look-see statutory inquiry" into whether JRCT funding for the advocacy group Cage ended up supporting Mohammed Emwazi, who is believed to have beheaded hostages in Syria and became known as Jihadi John.
Fraser’s reference to "Watchtower" concerns the commission’s decision last year to open a statutory inquiry into the Watch Tower Bible and Tract Society of Britain, the national governing body of the Jehovah’s Witnesses.
The decision coincided with a statutory inquiry into the New Moston congregation of the church in Manchester, which concerned a historic case of alleged child abuse. Statutory inquiries give the commission wide powers over the conduct and assets of a charity.
A month after Fraser's email was sent, the Court of Appeal granted leave for the WTBTSB to appeal against an earlier High Court decision that turned down its application for judicial review of the commission’s decision to open the inquiry. The Court of Appeal hearing will be held in February.
A spokesman for the WTBTSB said it was appealing against the decision to open the inquiry primarily because it was discriminatory but also because it was "drawn widely, is too broad in its scope and is a disproportionate response to a few isolated historic abuse cases.
"As part of its inquiry, the commission is seeking evidence by demanding production of documents. We see this as amounting to a ‘fishing expedition’ calculated to fuel the inquiry."
The Rt Hon Lord Justice Elias, who granted the appeal, said it was arguable that the High Court judge who turned down a first appeal last December was wrong to say that an appeal to the charity tribunal was an adequate remedy to either the production order or the challenge to the scope of the inquiry. "Also, the implications are wider than just this case," he added.
The commission did not in the end open a "Watchtower-type look-see" statutory inquiry into the JRCT, as urged by Fraser and other participants in an email exchange that came after a press conference at which Cage revealed that it had advised and supported Emwazi before he went to Syria in 2012.
Instead the commission put pressure on the charity and obtained an undertaking that it would never fund Cage again, which prompted Cage to seek a judicial review on the grounds that the commission had exceeded its powers.
The judicial review was withdrawn by Cage two weeks ago after a High Court hearing at which the commission made a statement recognising that "it has no power to require trustees to fetter the future exercise of their fiduciary duties under its general power to give advice and guidance. In consequence, there is no obligation on the trustees of JRCT to fetter the proper and lawful exercise of their discretion in the future."
The internal emails by Fraser and others were disclosed as part of the proceedings. A spokeswoman for the Charity Commission declined to comment on them.