Editorial: Regulation needs a health check-up

There is a strong case for including the role and remit of the charity tribunal in the review of the 2006 Charities Act next year, says Stephen Cook

Stephen Cook, editor
Stephen Cook, editor
Before the Charities Act 2006, charities could appeal only to the High Court against decisions made by the Charity Commission. The prohibitive costs meant that the commission was seen by many as a law unto itself, and charity case law was not evolving in line with modern society.

The act attempted to remedy this by creating the charity tribunal to provide swift, low-cost access to justice. This seemed to allow for a more open and equitable system of charity regulation.

But the proposal began to lose momentum even before its enactment. The government decided, against the advice of the joint parliamentary committee on the bill, not to allow all decisions of the commission to be appealable. Instead, a complex, selective list was adopted.

Then the commission tightened its procedures for internal reviews of decisions – a good thing, evidently. Less good was its message that this internal procedure had to be used before a charity could go to the tribunal. Before this question came to a showdown, a new legal structure for the tribunals service made it clear that the commission's view was not correct.

Next came the trend, under the banner of 'light-touch' regulation, for the commission to make fewer decisions capable of being appealed to the tribunal. Internal resolution, behind closed doors, has increasingly become the order of the day.

The result is that only 15 cases have come to the tribunal in two and a half years, and some have been struck out because they fall outside the permitted categories. This might be seen as a victory in some quarters, but the wider question is whether the regulatory health of the sector has improved.

The answer given last week by Alison McKenna, principal judge of the tribunal, is "not a lot". She argued that the role and remit of the tribunal should form part of the review of the 2006 act next year. Given the facts, the case for that seems compelling.

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