The judicial review of the Charity Commission's actions over the funding of the advocacy group Cage by the Joseph Rowntree Charitable Trust is being heard by the Lord Chief Justice, Lord Thomas, and Mr Justice Ouseley in the High Court today.
The case has its roots in a press conference earlier this year when a representative of Cage suggested that Mohammed Emwazi, believed to be the Islamic State executioner known as "Jihadi John", had been "a beautiful young man" until he was radicalised by the attentions of the British security services.
This prompted the Charity Commission to contact charities that had funded Cage, which is not a charity, asking for assurances that they would not fund it again. After what it described as "intense regulatory pressure", the JRCT gave an undertaking that it would not fund Cage "now or in the future".
In July Cage was granted an application for judicial review of its claim that the commission, in communications with the JRCT that required unequivocal assurances about the funding of Cage, was fettering the discretion of the charity's trustees and exceeding its powers in law.
The commission, in documents submitted to the court, argues that the assurances it sought were voluntary and were not made under its formal enforcement powers. If the JRCT had declined to give them, the commission says it could not have compelled their production, although it might subsequently have considered opening a statutory inquiry and taking further regulatory action that would have compelled compliance.
The JRCT, represented in the case as an interested party, has submitted a document to the court in which it says that the commission’s action cannot be fairly seen just as advice to the trustees: "It was characterised at the time as a mandatory requirement to comply with the Charity Commission’s view of their fiduciary duties." The document says the commission "cannot lawfully require trustees to fetter their future exercise of fiduciary discretion as to what may be in a charity’s best interests in the light of future developments."
Cage is represented by David Gottlieb, whose entry on the website of Thomas More Chambers describes him as "arguing the highest cases at the highest level" and "noted for defending high-profile terrorism and fraud cases". He defended Michael Adebolajo, one of two men convicted of murdering the soldier Lee Rigby in Woolwich in May 2013.
The JRCT is represented by Helen Mountfield QC, who is described by Chambers, a guide to lawyers and law firms, as "expert in the questions of the operation of human rights in public law".
Chambers says that Julian Milford, representing the Charity Commission, acts mainly for the government in "high-profile freedom of information request cases. He is a specialist in employment law, public law and information law."
After permission was given in July for the judicial review, a spokeswoman for the Charity Commission said: "We look forward to explaining to the court why the commission’s engagement with these charities was firmly within our powers."
Zoe Nicola of HMA Solicitors, representing Cage, said at that time: "The case raises major constitutional issues on whether the commission can require assurances from charities not to spend private money in support of controversial causes."
The hearing is expected to last a day, with a reserved judgment.