Joint Committee on the Draft Charities Bill Written Evidence

DCH 18 Home Office

Note

explaining how the proposed Charity Appeal Tribunal would work

for the

Joint Committee on the draft Charities Bill

1. The table at Annex A outlines those matters which would be subject to appeal to the Tribunal; the people (or groups of people) who would be entitled to lodge an appeal; and the Tribunal's jurisdiction in each case.

2. The Tribunal would work as follows:

The Lord Chancellor would make rules regulating the exercise of the right to appeal to the Tribunal (under new section 2B(3)(a) of the Charities Act 1993). The intention is that those rules would specify that anyone wanting to appeal to the Tribunal against a Charity Commission decision would first have to have gone through the Commission's Decision Review Procedure. That Procedure is the Commission's internal (non-statutory) mechanism for reviewing its own decisions. Currently, about two thirds of people who invoke that Procedure succeed in having the Commission's original decision reversed in their favour.

Having completed the Decision Review Procedure, if the appellant remained dissatisfied it would be open to him to lodge an appeal with the Tribunal. Again it would be for the Lord Chancellor to make rules governing the relevant time period for doing so and the manner in which appeals were made, but it is intended that the appellant would have a period of three months from the date of the Decision Review to lodge an appeal.

There would not be any charge to appellants for lodging an appeal.

It would not be necessary for the appellant to be legally represented before the Tribunal. He would be free to choose either to represent himself or to be (legally or otherwise) represented.

The Charity Commission would be the respondent at the Tribunal (at present it is the Attorney General, not the Commission itself, who is the respondent to appeals against the Commission in the High Court).

The Tribunal would consider the decision, direction or order appealed against afresh and could take into account evidence which was not available to the Commission.

The functions of the Tribunal would be exercised by panels of the Tribunal. It would be for the President to make arrangements (which would be published) determining which members of the Tribunal constituted a panel in relation to the exercise of any function. Depending on the length, complexity and general significance of any particular matter the panel could consist of:

the President of the Tribunal sitting alone;
a legal member alone;
the President and two other (not necessarily legal) members;
a legal member with two other (not necessarily legal) members;
with the parties' agreement, the President and one other (not necessarily legal) member;
with the parties' agreement, a legal member and one other (not necessarily legal) member.

As a general rule decisions of the Tribunal would be taken by majority vote

The rules of the Lord Chancellor would cover the award of costs at the Tribunal.

Any party to the proceedings could appeal to the High Court on a point of law against a decision of the Tribunal. However, an appeal could only be lodged with the permission of the Tribunal, or where they have refused, the permission of the High Court.

3. While the Attorney General would not be the respondent at the Tribunal, he would retain a role. He would have a right of appeal against the Commission's decision (as described in Annex A). At any stage of the proceedings the Tribunal or, in the case of an appeal from the Tribunal, the court may direct that all necessary papers should be sent to the Attorney. The Attorney would have the power to intervene in the proceedings as he thought fit or to argue before the Tribunal or the court any question that the Tribunal or court considered it necessary to have fully argued.

ANNEX A

Appeals to the Tribunal

Orders / Directions (Charities Act 1993)	Appellants	Tribunal's jurisdiction
Section 4(3) - decisions to enter or not to enter an institution on the register of charities or a decision to remove or not to remove an institution from the register.	Attorney General The institution Charity Trustees Any person who is or maybe affected by the decision	Dismiss the appeal Quash the decision (Where the Tribunal quashes the decision it may remit the matter to the Commission or direct the Commission to rectify the register).
Section 6 - power to require a change of charity's name.	Attorney General The charity Charity trustees of the charity Any person who is or maybe affected by the direction	Dismiss the appeal Quash the direction Substitute for the direction another direction of a kind that the Commission could have given.
Section 8 - decision to open an inquiry. Appeals would be raised only on the grounds that the institution is not a charity and so not subject to the Commission's investigative powers.	Attorney General The institution Any person who has control or management of the institution.	If the Tribunal determines that the institution is a charity it would dismiss the appeal. If it determines that it is not a charity it would direct the Commission to end the inquiry, or where the inquiry has been opened in relation to a class of charities, direct that the inquiry is not to look at that institution.
Section 16 - power to makes scheme or orders for the protection of charities	Attorney General Charity or its charity trustees (16(1)(a) case - scheme) Any person discharged or removed (16(1)(b) case) Any person who is or maybe affected by the order	Dismiss the appeal Quash the order in whole or part Substitute for all or part of the order another order of a kind that the Commission could have made Add to the order an order of a kind that the Commission could have made. (Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 18(1) or (2) - powers to act for the protection of charities (temporary measures). Attorney General

Charity or its trustees

Any person suspended by the order (18(1)(i) case)

Any person removed by the order (18(2)(i) case)

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order in whole or part
Substitute for all or part of the order another order of a kind that the Commission could have made' or
Add to the order an order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 18(4) - remove a trustee Attorney General

Any charity trustee removed by the order

The charity of which he was a charity trustee

The remaining charity trustees of that charity

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order in whole or part
Substitute for all or part of the order another order of a kind that the Commission could have made
Add to the order an order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).
.

Section 18(5) - appoint a person to be a charity trustee Attorney General

Charity in respect of which the charity trustee was appointed

Charity trustees of the charity

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order in whole or part
Substitute for all or part of the order another order of a kind that the Commission could have made
Add to the order an order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 19A - power to give specific directions for protection of charity. Attorney General

The charity or its charity trustees

Any trustee for the charity who is subject to the order (section 19A(2)(b) case)

Any officer or employee of the charity who is subject to the order (19A(2)(c) case)

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order in whole or part
Substitute for all or part of the order another order of a kind that the Commission could have made
Add to the order an order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 19B - power to direct the application of charity property. Attorney General

Any person who is subject to the order

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order in whole or part
Substitute for all or part of the order another order of a kind that the Commission could have made
Add to the order an order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 69 - power to investigate accounts. Appeals would be raised only on the grounds that the company is not a charity and so not subject to the Commission's investigative powers. Attorney General

The company which is subject to the order

The directors of the company

Any person who is or maybe affected by the order If the Tribunal determines that the company is a charity it would dismiss the appeal. If it determines that it is not a charity it would quash the order.

Section 72 - Waiver for disqualification for acting as a charity trustee Attorney General

The person who applied for the waiver

Any person who is or maybe affected by the order Dismiss the appeal
Quash the decision
Substitute for the decision another decision of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).

Section 73 - powers relating to persons acting as a charity trustee while disqualified. Attorney General

The person subject to the order

Any person who is or maybe affected by the order Dismiss the appeal
Quash the order
Substitute for the order another order of a kind that the Commission could have made.
(Where the Tribunal quashes the order it may remit the matter to the Commission).



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