Cost of appeals to the tribunal
233. One of the key aims of introducing the Tribunal
was that taking appeals before it should be inexpensive enough
to allow decisions by the Charity Commission to be challenged.
A contrast was drawn with appeals to the High Court, which are
generally accepted to be so expensive that charities are almost
invariably precluded from making them.[252]
The Charities Law Association (CLA) told us:
"In general, charities cannot afford (or are
understandably unwilling) to take expensive legal action, as testified
by the tiny number of charity cases taken in recent years. Moreover,
charities are run by volunteers. Accordingly, a complex system
is likely to deter many charities from bringing claims to the
Tribunal. We therefore consider it vital that the Tribunal is
inexpensive and simple for charities to use".[253]
"[The cost] depends on the degree to which the
rules laid down by the Lord Chancellor are based on the complexities
of the rules of evidence and so forth that you get in the industrial
tribunal or whether the pole is set lower and it is deliberately
designed to have a chairman who is more willing to be more like
a continental chairman, i.e. to help the applicants come to a
decision rather than sitting there in judgment. So I think there
is a real argument for the way the rules of that tribunal should
be framed".[254]
234. Witnesses from smaller charities, however, were
unconvinced or doubtful that appeals to the Tribunal would actually
be inexpensive. The Minority Rights Group International told us
that "the essential problem would be that charities would
still be dissuaded from taking appeals because of the perceived
costs involved".[255]
The Myasthenia Gravis Association said:
"… we support very strongly the Appeals
Tribunal provision. We also are very concerned about costs and
the procedures and we are a bit concerned that the whole issue
of procedure is currently being left to rules which will be determined
later by the Lord Chancellor and I believe that the Bill should
say more on its face about these issues about access and cost".[256]
235. Larger charities were also concerned about this
issue: Oxfam said it would welcome clarification about how cases
brought to the Tribunal would be funded.[257]
In response to the Committee's concerns about the possible costs
to charities of appeals to the Tribunal, the Charity Commission
told us:
"…the Tribunal will form the forum of factual
adjudication in those cases in which legitimate reviews of the
Commission's decisions are requested. It will be a low-cost and
more informal forum for determination of those issues. We expect
to see an increase in the number of challenges to the Commission's
exercise of their powers as a result. We expect the adjudication
to be quicker and more final and those using the service to be
more satisfied by its outcome than, as you have pointed out, the
rather cumbersome and expensive legalistic process of going to
the High Court for redress".[258]
236. We asked why cases brought before the Tribunal
should be cheaper than those brought before the High Court, given
that in most cases there would probably be the same number of
lawyers doing the same job. The Charity Commission told us "the
parties appearing before the Tribunal do not have to be legally
represented and the Commission itself would not necessarily call
on external legal support to put its own case".[259]
We do not find this a convincing answer, given the inadvisability
of charities' eschewing legal support in these circumstances and
the fact that the Commission is well provided with in-house lawyers.
In fact, we noted that the Commission estimates in the costings
accompanying the draft Bill that each case before the Tribunal
will on average cost them between £3,000 and £5,000
to process, so it sounds as if they intend to devote quite considerable
resource to fighting cases.[260]
Even if charities represented themselves, they might still incur
heavy cost if the Tribunal awarded costs against them.
237. The Home Office replied in similar terms to
the same question. The Minister said that in many cases it would
be possible for people to appear before the Tribunal without qualified
legal representation.[261]
We suggested that the draft Bill should provide for a suitors'
fund or legal aid as a means of ensuring access to the Tribunal.
She replied that she did not think such devices were required
and that, in any case, it would not be necessary to refer to them
on the face of the Bill for them to be used.[262]
However, she did say that:
"Were it to appear that in practice the existence
of the Tribunal did not make it more accessible to people to take
cases and so on… as a matter of policy Government might then
consider making more resources available to complainants".[263]
Conclusion
238. We were not convinced by arguments from the
Minister and the Charity Commission that charities could or would
successfully use the Tribunal without expensive legal representation.
We agree with the Charity Law Association that much will depend
on what rules the Lord Chancellor lays down for the Tribunal's
procedure[264] and,
as the Myasthenia Gravis Association pointed out to us, these
are still to be determined.
239. We recommend that the Commission formally
state that they will not seek to recover costs from an unsuccessful
appellant (except where the Tribunal decides that the appeal amounted
to an abuse of process).
240. We recommend that consideration be given
to including in the Bill a residuary power for Ministers to make
regulations enabling financial assistance to be given to parties
to the Tribunal if it becomes apparent in the light of experience
that access to the Tribunal is being limited by cost.
241. We recommend that the rules to be made by
the Lord Chancellor on appeal to the Tribunal should include provision
for either the Charity Commission or the Attorney General to refer
matters to the Tribunal for interpretation without individual
charities having to incur the costs of pursuing a specific case.
We note the position of the Attorney General on this point.[265]
238 
