Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission

A person should ordinarily use a statutory tribunal remedy before seeking judicial review where that remedy is convenient and effective. A tribunal review may be effective even though its formal remedial power is limited, if it must give reasons which define the lawful limits of the public body’s future action.

An appeal under section 320 of the Charities Act 2011 against a document-production order is narrower. It asks only whether the material relates to a charity and is relevant, in the ordinary factual sense, to the discharge of the Commission’s functions. It does not determine whether the order was unlawfully made. Challenges based on proportionality, Convention rights or data protection must instead be brought by judicial review.

The Charity Commission instituted an inquiry under section 46 of the Charities Act 2011 into safeguarding concerns concerning Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission [2016] EWCA Civ 154. It then made a section 52 production order for documents relating to allegations or complaints of abuse and associated safeguarding material.

The charity and its trustees sought judicial review of both decisions. Dove J refused permission solely because the First-tier Tribunal provided an alternative remedy. The appeal concerned whether the tribunal could effectively review the decision to open the inquiry, and whether its section 320 jurisdiction extended to challenges to the legality of the production order.

1. The appeal was dismissed as to the Inquiry Decision. A section 321 review before the First-tier Tribunal was a convenient and effective alternative to judicial review. The ordinary rule in Kay v Lambeth LBC [2006] UKHL 10 applied with particular force to a statutory scheme assigning challenges to a specialist tribunal.

   The tribunal could direct the Commission to end an unlawfully constituted inquiry. It would have to give reasons for doing so. Those reasons could identify why the inquiry’s scope was unlawful or inconsistent with the Commission’s section 16(4) duties. The Commission, as a responsible public body, could be expected to comply. The possibility of later judicial review over implementation did not make the statutory route ineffective.

2. The appeal was allowed as to the Production Order. Section 320 requires the tribunal to decide only whether the information or documents relate to a charity and are relevant to the discharge of the Commission’s functions. In their ordinary meaning, those requirements concern a factual connection with the charity and with the Commission’s statutory functions.

   They do not mean relevance to the lawful discharge of those functions. Section 320 therefore does not permit an appeal alleging that the production order was disproportionate, contrary to article 8, or inconsistent with data-protection obligations. Parliament had deliberately provided a confined appeal, rather than the general merits appeal under section 319 or the judicial-review-type review under section 321.

3. Section 3(1) of the Human Rights Act 1998 did not require a wider construction. Convention challenges could be determined by the High Court in judicial review proceedings. That distinguished Hounslow LBC v Powell [2011] UKSC 8, where the proposed compatible construction was necessary to ensure an independent tribunal could determine the article 8 defence.

   The High Court could therefore determine the challenges to the Production Order. The Respondent’s Notice did not require determination.

• Court of Appeal (Civil Division) — dismissed the appeal concerning the decision to institute the inquiry, but allowed the appeal concerning the production order: [2016] EWCA Civ 154.

• Administrative Court, Queen’s Bench Division — Dove J refused permission to apply for judicial review on the sole ground that the First-tier Tribunal provided an alternative remedy. He did not decide the substantive grounds.