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

The Court of Appeal considered two challenges to the Charity Commission: the lawfulness of its decision to institute a section 46 inquiry into safeguarding and a production order made under section 52 of the Charities Act 2011. The court applied the principle that statutory appeal routes and specialist tribunals should ordinarily be used where they provide an effective and convenient remedy. It held that the First-tier Tribunal (Charity) provides an effective route to challenge the decision to open the inquiry, including complaints that the inquiry's scope is vague or interferes with Convention rights, because the tribunal can consider the matter afresh and must give reasons. By contrast, the court held that section 320 of the 2011 Act confines an appeal against a section 52 production order to the narrow factual/legal question whether the documents "relate to" the charity and are "relevant to the discharge of the functions of the Commission"; it does not permit the tribunal to entertain a general challenge to the lawfulness of the order (for example on Article 8 or Data Protection Act grounds). Consequently the production order challenge belonged to judicial review rather than to a section 320 appeal.

Background and parties. The Charity Commission opened an inquiry under section 46 of the Charities Act 2011 into Watch Tower Bible & Tract Society of Britain & others concerning safeguarding and governance. The Commission also issued a production order under section 52 requiring a wide range of documents relating to safeguarding since 1 June 2011. The appellants sought judicial review of the decision to initiate the inquiry and of the production order.

Procedural history. Dove J in the Administrative Court refused permission to apply for judicial review on the ground the appellants should have appealed to the First-tier Tribunal. The appellants appealed to the Court of Appeal.

Issues for the Court of Appeal. (i) Whether the First-tier Tribunal provides an effective and convenient remedy to challenge the lawfulness and scope of the section 46 inquiry (including alleged interference with Articles 9 and 11); and (ii) whether the First-tier Tribunal’s jurisdiction under section 320 to entertain an appeal against a section 52 production order includes power to determine complaints that the order was unlawful (for example on Article 8 or Data Protection Act 1998 grounds).

Reasoning on the inquiry decision. The court emphasised the general principle that, where statutory specialist remedies are available and provide convenient and effective redress, judicial review should ordinarily be deferred. The First-tier Tribunal has power under the statutory scheme (notably sections 319 and 321 and Schedule 6) to consider the merits of decisions to institute inquiries and to direct the Commission to end an inquiry where appropriate; it must give reasons and is bound to act compatibly with Convention rights. The Master of the Rolls rejected submissions that the tribunal could not provide effective relief or that satellite litigation and uncertainty justified bypassing the statutory route.

Reasoning on the production order. The court considered the wording of section 320 and concluded that on ordinary language it confines the tribunal to determining whether the information or documents "relate to" the charity and are "relevant to the discharge of the functions of the Commission". Those are questions of connection and relevance to the Commission's statutory functions (section 15). Section 320 does not, the Master of the Rolls held, allow the tribunal to entertain a free-standing challenge to the lawfulness of a section 52 order (such as proportionality under Article 8 or compliance with the DPA); if Parliament had intended that result it would have framed the appeals regime differently (for example by listing section 52 orders as reviewable matters under section 321 or by providing a full appeal). Accordingly the production order challenge must be by judicial review. Lord Justice McCombe, while expressing some hesitation on construction, agreed that the High Court should determine the production order issue because tribunal jurisdiction was at best doubtful.

Outcome. The appeal was dismissed as to the inquiry decision and allowed as to the production order. The court left open that judicial review remains available to challenge a section 52 order.

Appeal allowed in part. The court dismissed the challenge to the Commission's decision to institute the section 46 inquiry, holding that the First-tier Tribunal (Charity) provides an effective and convenient remedy to challenge the scope and lawfulness of the inquiry and will give reasons and apply Convention/DPA obligations. The court allowed the appeal in relation to the section 52 Production Order, holding that section 320 confines the tribunal to deciding whether documents "relate to" the charity and are "relevant to the discharge of the functions of the Commission" and does not permit a general appeal to determine the lawfulness of a production order (such challenges remain for judicial review).

On appeal from the Administrative Court (Queen's Bench Division, Dove J; CO39742014) to the Court of Appeal (Civil Division), reported as [2016] EWCA Civ 154.