The Jehovah’s Witnesses charity, the Watch Tower Bible and Tract Society of Britain, yesterday appealed to the High Court to allow its case against the opening of a statutory inquiry by the Charity Commission to be heard as a judicial review.
The charity and the commission have been engaged in a long-running legal battle since the regulator opened a statutory inquiry into the charity’s safeguarding measures in May 2014.
The WTBTSB sought a judicial review of the decision to launch an inquiry and of a commission production order that requested documents from the charity. It said both the inquiry and the order were too broad in scope, and the production order breached the Data Protection Act because it would require sensitive personal information to be shared.
But this application was rejected on 12 December 2014. The judge said the case should be taken to the charity tribunal, and an appeal to the tribunal made 10 days later was rejected in March 2015 because it had been made outside the 42-day time limit.
In yesterday’s hearing at the Court of Appeal, the panel of judges, led by Lord Dyson, the Master of the Rolls, did not reach a judgment, which could take several weeks.
The WTBTSB argued that its case could not have been heard by the charity tribunal because it was seeking to limit the scope of the inquiry, something it said would be outside the tribunal’s powers under the Charities Act 2011.
Representing WTBTSB, Richard Clayton QC, said: "The tribunal’s powers are confined to a stark choice – either dismissing the appeal or exercising the power to direct the commission to end the inquiry."
He said it would have been less "convenient and effective" for the WTBSTB to have taken its case to the tribunal and then appealed its decision later at judicial review because it would take more time and incur more costs.
"It would be much simpler and preferable to deal with the issue of scope first and put it to one side before starting a tribunal review, rather than having to thrash out all the arguments at tribunal," Clayton said.
But Iain Steele, for the Charity Commission, argued that the charity was seeking a review only because it had missed the deadline to appeal against the inquiry in July 2014. Clayton denied this.
Steele pointed to the similar case of the Manchester New Moston Congregation of Jehovah’s Witnesses, which appealed against a statutory inquiry opened at the same time, but chose to appeal through the tribunal – despite, Steele said, strong similarities in the grounds of its claim.
"If anything, the appellants are arguing that the remedy available through the first-tier tribunal is too effective," he said.
"They want this to go away completely. Rather than being concerned about the scope, they want it to stop."
He said the commission had written to the WTBTSB, hoping to make some progress, asking what elements of the inquiry it did not contest and suggesting that names could be redacted to help resolve the data-protection issue. But the charity had issued a "polite but firm refusal to engage" while legal proceedings were ongoing, Steele said.
Chris Willis Pickup, head of litigation at the commission, told Third Sector after the hearing that a judgment in the WTBTSB’s favour could leave smaller charities confused about which route they should take to seek redress.
Asked if the commission would consider asking the government to amend the Charities Act to allow the tribunal to limit the scope of an inquiry, rather than simply quash it, he said: "Having just celebrated the passing of the Charities (Protection and Social Investment) Bill through parliament, we would not be keen to go back to the government and say ‘OK, here’s the next charities bill’."
He said the commission did not believe there was a problem with existing legislation.