Letter to Lord Phillips of Sudbury from
the Attorney General, The Rt Hon The Lord Goldsmith QC (DCH 362)
DRAFT CHARITIES BILL
Further to your letter of 22 July and my response
of 3 August, I have now had time, together with the relevant Departments,
to give your suggestion the consideration it merits.
Your concern relates to the role of the proposed
Charity Appeal Tribunal in relation to the development of a body
of charity case law, and your suggestion is that legal costs could
be paid out of public funds where I am able to certify that the
matter is of public importance. I appreciate the reasons behind
this concern, and your letter is persuasive. However, I am unable
on behalf of the Government to endorse the policy.
The purpose of the Tribunal is, as you know,
to render access to a legal forum in charity cases quicker, easier
and cheaper. While you are correct that where cases require significant
expert legal input, legal costs will be equivalent to those in
the High Court, it is envisaged that the great majority of cases
will be able to be presented by a litigant in person. It is understood
from the Charity Commission that most cases concern issues relating
to registration, orders and schemes, where lay trustees are involved
without legal representation.
Nevertheless, I agree with you that there will
be a small number of cases where the law is of sufficient complexity
to debar a litigant in person. The Home Office estimates that
this may affect one or two cases annually. The Commission, in
giving evidence before the Committee in answer to a question from
you, has indicated that, either at the request of the Tribunal
or at my own request, I would be a party to cases demonstrating
a clear public interest in the review of the relevant law. I would
therefore be in a position to argue the case fully before the
Tribunal, thus relieving the applicant of a degree of the burden
of the costs of legal representation. I nevertheless appreciate
that the basic cost of the application will still need to be met.
In fully exploring your proposal, I have discussed
the situation with other stakeholders. I understand from the Department
for Constitutional Affairs that public funding for individual
cases before the Charity Appeal Tribunal would be anomalous. Public
funded legal representation is available in no other tribunal
in this country which is not concerned with the liberty and fundamental
rights of individuals. The obstacle to implementing your suggestion
is, therefore, that to allow public funding for the purpose of
developing a body of charity case law would involve a radical
overhaul of the Access to Justice Act and the criteria for funding
of tribunals generally. Even if the funding itself were to be
made available, the concern is that a precedent would be established
which would have far-reaching consequences on the tribunal system.
On this basis, I must advise you that I can
detect no real prospect of the Government being able to support
your suggestion. I am nevertheless grateful to you for making
it, and affording the opportunity to discuss the issue. My hope
is that the Tribunal will establish a flexible forum for the great
majority of cases which will, in itself, promote a more vigorous
development of the case law to the general benefit of charities
and charity law.
September 2004
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