Interview: Alison McKenna, president, the Charity Tribunal

The Charity Tribunal is open for business. Its president tells John Plummer why she wanted to take the helm at the new appeals body right from the start.

credit: David Devins
credit: David Devins

Alison McKenna repeats a certain phrase as if it were a mantra for the Charity Tribunal, of which she is president: "Swift, low-cost access to justice."

The tribunal is indeed being hailed as a cheap way for charities to challenge Charity Commission decisions. There is no charge for bringing cases and those who do can get free legal help from a pool of pro bono lawyers. But it could also become a battleground for some of the most contentious issues of charity law, including, perhaps, the public benefit test.

The new tribunal has had a stuttering, low-key start. It opened after a short delay on 18 March without fanfare and without anyone ready to sit in judgement. McKenna, who previously led the charities division at Salisbury-based solicitors Wilsons, was appointed president in February but took up the post only in June.

All five legal members and seven lay members have now been appointed on daily rates of £450 and £255 respectively and the first cases are, well, trickling in.

"There is one case that is definitely going forward," says McKenna. Nagendram Seevaratnam, who was removed from his post as trustee of a London Hindu charity called Sivayogam, brought the case. McKenna says two or three other inquiries didn't fall under the tribunal's jurisdiction because they related to decisions made by the commission before the tribunal opened for business.

The tribunal is resourced on the basis of 50 cases a year, which looks generous now that the commission is investigating fewer charities. "It may take a couple of years to get up to that level," says McKenna. "I've talked to presidents of other recently created tribunals who tell me they have tended to be a bit slow for the first year, but tend to take off in year two or three. People need to see a few cases going through before they can see the value of the tribunal."

The Government first mooted the idea of the tribunal in 2003 and legislated for it in the Charities Act 2006. Most attention has focused on how the tribunal could save charities a fortune on High Court appeals against the regulator's judgements.

But the Charity Tribunal has unusual powers that have not been conferred on most of the other 31 tribunals in the Tribunals Service, an executive agency of the Ministry of Justice. Most notably, it can consider points of law referred to it by the Attorney General, currently Baroness Scotland, or the Charity Commission without a case being brought. So it might not be left to individual charities to challenge rulings on issues with sector-wide importance, such as public benefit or political campaigning; the Attorney General could decide to step in and use her enhanced powers to bring cases. She could even choose to do so at a charity's behest.

McKenna says the Attorney General's intervention is one of the ways public benefit could be considered by the tribunal. But she says the provision is "not specifically there for the public benefit test".

The Cabinet Office says the tribunal's enhanced powers will help it develop case law that has not always kept pace with changes in society and the charity sector. McKenna says her experience as a charity lawyer, which included a spell as legal adviser to the commission, bore this out. "Contrast it with the commercial sector, where people are always bringing cases because people have the money to do it," she says. "This opens up the possibility of charities going to the Attorney General and saying 'we want to do this, there is a good reason for it and the law prevents it'.

"The Government clearly sees the third sector as really important in society and wants charity law to develop."

The tribunal aims to complete 75 per cent of cases within 30 weeks. Three of the 12 tribunal members will sit in judgement and few hearings are expected to last beyond a day. "I want everyone to get experience of sitting, so I won't sit on every case," says McKenna, who is also a president of the Mental Health Review Tribunal.

Individual tribunals have traditionally administered themselves, but the system is being restructured to bring them all under the same jurisdiction: all tribunals will be sub-divided into groups of five, known as chambers. The Charity Tribunal will be part of the general regulatory chamber, which also includes the Gambling Appeals Tribunal and the Consumer Credit Appeals Tribunal.

As part of the shake-up, tribunal members will no longer sit on only one tribunal. However, the eligibility criteria for the Charity Tribunal says members must have "experience and expertise in relation to charities", so mobility will be restricted.

McKenna admits the restructure is confusing, but says charities should not notice any difference. "The aim of the transition is that changes won't be discernible to service users," she says. "They will still have their cases heard by specialists in charity law."

The appointment of McKenna, a barrister, was widely welcomed, but some lawyers felt appointing a judge would have given the position more prestige. Others were surprised someone so young would be attracted to the relatively modest £123,000 salary.

McKenna says plenty of other tribunal presidents are not judges. "This is about tribunal justice rather than the court system," she says. "I would have been surprised if a judge from the court system had taken this role." As for her youth, she is 45. "Not that young," she jokes.

She says the job appealed because, having combined a job at Wilsons with a position on the Mental Health Review Tribunal, she felt it was time to decide between a full-time career in either private practice or the judiciary.

"It's a completely new thing for the sector," she says. "I wanted to be in at the beginning and make a contribution to shaping it."

The tribunal is an unknown quantity in the eyes of many charities. Its performance will be assessed as part of the review of the Charities Act in 2011. McKenna says being "hugely busy" will not necessarily be a measure of its success. "It may be that the commission's decisions are robust and people don't appeal them," she says. "The measure of success is, first, that people know about us and, second, feel able to use our services."

MCKENNA CV
2008: President, Charity Tribunal
2002: Partner and head of charities department, Wilsons
2002: President, Mental Health Review Tribunal
1997: Legal adviser, Charity Commission
1996: Legal adviser, Registrar of Criminal Appeals
1995: Member, Mental Health Act Commission
1993: Investigator, Commission for Local Administration in England
(Local Government Ombudsman)
1988: Barrister

THE APPEALS PROCESS

The Charity Tribunal aims to resolve 75 per cent of cases within 30 weeks. Here is how it works

1. Charity Commission issues its final decision on a charity

2. The charity has 42 days from notification of the commission's final decision to appeal to the Charity Tribunal

3. The tribunal considers whether the appeal falls within its jurisdiction

4. The tribunal sends the appeal application to the Charity Commission and informs it of the grounds for appeal

5. The Charity Commission has 28 days to file a response to the appeal

6. The charity has the right to reply to any response raised by the commission

7. The Charity Commission files any previously undisclosed evidence

8. A directions hearing takes place, at which the two parties agree a timetable for submitting documents to tribunal members as well as agreeing a hearing date and a list of witnesses

9. Tribunal hearing takes place

- For more details, visit www.charity.tribunals.gov.uk.

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