'The tribunal provides an important window into charities'

A decade after the launch of the charity tribunal, Judge Alison McKenna tells Stephen Cook why she believes it continues to prove its worth

Alison McKenna
Alison McKenna

When the charity tribunal was created by the Charities Act 2006, it was intended as a rapid, low-cost means of challenging Charity Commission actions. In the past, appeals went to the High Court, which could be slow and expensive. The tribunal was also expected to help clarify charity law.

Ten years after it started work, have those purposes been achieved? Alison McKenna, the judge who has presided over the tribunal from the start, gives a confident "yes" in respect of the first purpose, but says the tribunal, not being a court of record, has not been able to develop charity law by itself.

The commission's practice has moved on light years. It has regular reviews. It has good record-keeping. We have had an effect.

Alison McKenna

She thinks the tribunal’s main achievement has been helping people to use it without lawyers by developing a user-friendly approach to hearings and case management, and by publishing detailed guidance. The National Council for Voluntary Organisations has produced a leaflet about it and McKenna has made a video for the website of LawWorks, a charity that provides free legal advice from solicitors.

"We’ve made it clear that you don’t have to pay for lawyers and you can represent yourself," she says. "About 60 per cent of applicants haven’t used lawyers.

‘Important and interesting’

"The tribunal also provides an important window on the world of charity – you can see where the pressure points are, where people are falling foul of the commission and how the commission operates. You can also see the social pressures on charities that might cause them to act in a way that gets them into trouble. So I think the work of the tribunal is important and interesting."

At first the tribunal had a difficult relationship with the commission, which was criticised for poor procedures in the first case the tribunal decided. The regulator also told people who were unhappy with its rulings that they had to go through its internal decision-review process before they could go to the tribunal, but McKenna made it clear she did not agree and allowed several appeals to proceed without reviews. The commission eventually revised its guidance and accepted her analysis of the law.

She says she found it "bizarre" in the early days that the commission seemed to consider the tribunal a threat: "Most regulators would say they learn things about their own practices from the oversight of the tribunals. But the commission’s practice has moved on light years since that first case. It has regular reviews. It has good record-keeping. I think we have had an effect.

"It has now got all its systems in place for dealing with appeals, as has the tribunal. The tribunal has developed a standard set of directions that we issue in draft to the parties. The tribunal expects the commission and the appellant to speak to each other, and they do. It’s very standardised now."

So what about developing charity law? McKenna says she thinks it was a mistake to expect that it could do this, given that it cannot establish legal precedent. "All it can do is help to set out the legal principles that might form the basis of the development of charity law if there is an appeal to the higher courts. But it’s not going to do that itself."

Some of the 11 cases that have been appealed to the Upper Tribunal, which is a court of record, have had the effect of developing the law: in one, the question was clarified of who can be regarded as "a person who is or may be affected" by a commission decision and therefore entitled to appeal. The 2006 act also provided that the Attorney General and the commission could refer to the tribunal cases that raised issues in need of clarification, but there have been only two of these, both automatically transferred to the Upper Tribunal.

The first case concerned guidance drawn up by the Charity Commission about how independent charitable schools should fulfil the public benefit requirement set out in the 2006 act. The Upper Tribunal ruled the guidance was too prescriptive in some areas.

The second was about whether benevolent trusts, which benefit people connected with a particular person, company or industry, provided sufficient public benefit to justify their charitable status. The Upper Tribunal confirmed that they did.

It was predicted the tribunal would deal with about 50 cases a year, but in its first year it had only three and the total after ten years is little more than 80.

McKenna says the expectation was unrealistic, given that the 2006 act reduced the range of actions for which charities needed permission from the commission and which therefore raised the possibility of an appeal. The number of statutory inquiries by the commission, which give rise to appeal rights, was then at a low level.

"Charities don’t like to be seen to be litigating unless it’s unavoidable. These are all factors we ought to have foreseen would keep the numbers low. But there are more statutory inquiries by the commission now."

The charity tribunal adjusted to the low number of cases when, 18 months after it opened, a reorganisation placed it in the General Regulatory Chamber of a new First-Tier Tribunal, which handles appeals from a wide range of regulators.

Although she had hoped to spend all her time on charity cases, McKenna began to sit on appeals from other regulators, but most charity cases have been heard by her and two other specialist judges, Jonathan Holbrook and Peter Hinchliffe.

Earlier this year McKenna was promoted to president of the General Regulatory Chamber, with management duties, but she says she is still involved in four or five charity cases a year.

The charity tribunal has, like others, been earmarked to charge fees to users, but the issue is on hold. The tribunal will be affected by the pending reform programme for the justice system that involves the closure of many courts and the conduct of more cases by video link, Skype and the internet.

"The worry is that justice will not be open and transparent," says McKenna. "People might no longer be able to just go in and watch. It’s important they have a right to do so."

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