Watch Tower Bible & Tract Society of Britain v Charity Commission

Judicial review is discretionary. Where Parliament has created a specialist statutory regime with an adequate alternative remedy, that remedy should ordinarily be used. Powerful reasons or exceptional circumstances are required before judicial review bypasses the statutory scheme.

In assessing adequacy, the court considers the decision’s nature and context, the statutory regime, the reach of the alternative remedy, the need for fact-finding and procedural convenience. The alternative remedy need not reproduce every judicial review remedy in identical form, provided it can effectively determine the substance of the complaint. Judicial review may remain available if a public body fails to respect the statutory tribunal’s decision.

The claimant challenged the Charity Commission’s decision to institute a statutory inquiry under section 46 of the Charities Act 2011 concerning child safeguarding, and a production order requiring extensive documents under section 52.

The claimant argued that both decisions were too broad and disproportionate, and raised potential data protection and Article 8 issues. The Commission contended that the claimant should use the appeal and review procedures available before the First-tier Tribunal. The central issue was whether those statutory remedies were adequate so that permission for judicial review should be refused.

1. General principles. Judicial review is not automatically barred by the existence of another remedy. The question is discretionary. Where Parliament has established a separate specialist statutory regime, there is a presumption that it should be used unless clear and powerful reasons or exceptional circumstances justify judicial review. Relevant considerations include the nature and context of the decision, the statutory regime, the reach of the alternative remedy, the need for fact-finding and the convenience of the process.
2. Production order. The First-tier Tribunal’s appeal jurisdiction under section 320(2) of the Charities Act 2011 enabled it to decide whether the information or documents related to a charity and were relevant to the Commission’s functions. Its powers under Schedule 6 mirrored the Commission’s power to quash or replace the order. The Tribunal could therefore determine complaints that the order was too wide or disproportionate.
3. Human rights and data protection. Article 8 was potentially engaged. The Tribunal, as a public authority subject to section 6 of the Human Rights Act 1998, would have to take Convention rights into account. The Commission’s statutory functions did not authorise unlawful action or disapply data protection legislation. Those matters could therefore be considered on appeal.
4. Statutory inquiry. A decision to institute a section 46 inquiry was reviewable by the First-tier Tribunal under section 321. The Tribunal had to apply judicial review principles and could direct the Commission to end the inquiry. If the Tribunal found that the inquiry was unlawfully broad, its reasons could require the Commission either to institute a narrower inquiry or to respect limits identified in the Tribunal’s decision.
5. Residual judicial review. If there were an intractable disagreement or the Commission failed properly to respect the Tribunal’s decision, judicial review could remain available in relation to the investigative steps and the implementation of the Tribunal’s decision. The statutory remedies were nevertheless effective for present purposes. Permission to apply for judicial review was refused.

Not stated in the judgment.