When the charity tribunal was created by the Charities Act 2006, the main justification was that it would offer speedy, low-cost access to justice. Previously, the only ways to challenge decisions of the Charity Commission were the commission’s own internal review process or proceedings – usually slow and expensive – in the High Court. In practice this meant the commission went largely unchallenged, and parliament rightly decided this was not a satisfactory state of affairs.
At first there was only a small number of cases and some observers questioned whether the tribunal was really necessary. It is also fair to say that the commission was unhappy about it, especially when it was roundly criticised by the tribunal in one of the early appeals by a Hindu temple charity in south London. At one point the commission was saying that people had to use its review process before going to the tribunal, which was in fact an option rather than a requirement. There was some skirmishing behind the scenes.
Over time, however, the flow of cases has increased and the commission has acknowledged that it can be beneficial for contentious issues to be decided by an impartial body other than itself. A fair proportion of the cases are brought to the tribunal by individuals who would never have been able to go to the High Court and yet have important charity-related issues to be settled. The tribunal has, in short, proved its worth and achieved the stated aim.
That is why the government’s plan to introduce fees for using the tribunal is a bad idea and a step backwards. It is proposing a charge of £100 for consideration of the merits of a case and a further £500 if there is a hearing. Not huge sums, but they are likely to inhibit applications and damage the important principle that people should be able to challenge the commission regardless of their means. Given that the flow of cases remains relatively small, one also wonders if the revenue will cover the administrative cost of collecting it.
The tribunals judiciary told the Ministry of Justice consultation on the proposal that the experience of the recent introduction of fees for the employment tribunal suggests that the extension to other areas "risks harming access to justice without delivering the anticipated financial benefit". The Charity Law Association also submitted a cogent case, arguing that fees could result in the commission becoming less accountable. This would be especially unfortunate at a time when the commission is taking what is known in the parlance as a "robust" approach to almost everything it does. But the government has the bit between its teeth and cogent arguments tend not to have much of an effect on it.
What does the commission think? It says it has "noted the government’s response and is considering it very carefully". This sounds as if it is sitting on the fence, which in a way is understandable for an organisation that emphasises its independence but is nevertheless a non-ministerial government department with a sponsoring minister. But if the commission says no more than this, the sector is likely, rightly or wrongly, to conclude that the regulator is content to go along with a proposal that seems likely to move things back towards the bad old days when there were fewer constraints on its power.