O'Callaghan, R (on the application of) v The Charity Commission for England & Wales & Ors

A public consultation promised by a minister in Parliament must be interpreted purposively and conducted effectively and fairly. Where a decision concerns consent to a particular transaction, consultees must receive sufficient information to make a meaningful response. Publishing only a document that identifies the transaction, while withholding the material terms of the transaction, does not satisfy that obligation. Statutory compliance does not displace a specific public assurance. Relief should not be refused merely because the decision-maker might reach the same conclusion after a lawful consultation unless the result would inevitably be the same; the court must avoid deciding the substantive merits.

The claimant applied for judicial review of an order made by the Charity Commission authorising the Trustees of Alexandra Park and Palace to enter into a 125-year lease and associated project agreement with Firoka. The authorisation was made under the Charities (Alexandra Park and Palace) Order 2004 and the Charities Act 1993.

The Commission had published the draft authorising order and invited representations, but had withheld the lease and project agreement, including from consultees who requested them. The central issue was whether that process fulfilled a ministerial assurance given during the parliamentary consideration of the 2004 Order that there would be consultation on how charitable interests would be protected.

1. Relief granted. The Commission’s order was declared unlawful and quashed.
2. The ministerial assurance given in Parliament was a specific public commitment, made to address objections to the subordinate legislation. It had to be interpreted purposively and in a manner that gave it practical effect. The Commission was required to conduct an effective and fair consultation.
3. Because the Commission had to decide whether entering into the particular lease and project agreement was expedient in the interests of the charity, consultees needed sufficient information about those documents to make a meaningful response. Disclosure of every clause was not necessarily required. Sensitive material could potentially be redacted, or a sufficient gist or summary could be provided.
4. The Commission’s publication of the draft order, without meaningful information about the transaction it authorised, made consultation largely ineffective. Earlier consultations by the Trustees and other bodies, which concerned outline proposals or earlier stages, could not substitute for the promised consultation.
5. Compliance with statutory consultation requirements was not decisive. Those requirements might ordinarily indicate fairness, but they did not exhaust the obligation created by the specific parliamentary assurance. A private confidentiality agreement could not negate that public obligation.
6. The court rejected the submission that relief should be withheld because the decision would probably have been the same. The relevant threshold was inevitability, not probability. The court also had to avoid crossing from reviewing the decision-making process into deciding the merits.
7. The claimant was entitled to costs. The Charity Commission and the Trustees were regarded as equally responsible for the circumstances, but because of an existing agreement no order for costs was made against the Commission. The Trustees were ordered to pay 50 per cent of the claimant’s costs, subject to detailed assessment if not agreed.