Courts have ruled that only the board, not staff, of the Charity Commission for Northern Ireland (CCNI) can make key decisions, rendering much of its work invalid.
In February the Court of Appeal upheld a decision made by the High Court last year in the case of McKee & Others v Charity Commission for Northern Ireland. This declared that the CCNI board could not delegate decision-making to members of staff.
This effectively invalidates much of the work of CCNI up to May 2019, including its investigative work and programme of registering charities.
Staff had been making decisions following manuals agreed by the board, but the courts have ruled that current legislation stipulates that decisions must be made by board members or a committee involving board members.
CCNI has put in place temporary arrangements, but warned that its board does not have capacity to carry out the same volume of work as before, and that there may therefore be delays.
In a legal update on its website, CCNI said: “The Commission has a board of seven commissioners, who work on a part time basis, and whose primary role is setting strategic direction and overseeing governance of the organisation.
“To have a board or committee of commissioners making every decision of the Commission would involve a radical change to the Commission’s structure, processes and budget.”
Minister considering implications
A change to the Charities Act (NI) 2008 is likely to be needed to enable CCNI to operate as it was prior to the judgments.
In a statement, the Department for Communities, which oversees charity law in Northern Ireland, said: “The department accepts the Court of Appeal judgment. The determination of the court raises complex issues in respect to charity regulation in Northern Ireland from 2013 when the Charity Commission began registration and going forward.
“As such, the minister will want to understand all of the potential impacts of the judgment on past decisions to determine what is in the best interests of all stakeholders and to ensure that any future arrangements are fully considered as they will set the course for charity regulation in Northern Ireland and must be in the wider public interest.
“The department is assured that the Charity Commission has introduced interim procedures to ensure decisions can be taken in compliance with the judgment. The minister will shortly determine how the department intends to respond to the issues raised by the judgment.
“In the meantime, the department can give an assurance to those charities that were unlawfully registered that they remain charities in law and need do nothing differently in the interim.”
Impact on past investigations
The court cases were brought by individuals who had been involved in CCNI’s investigative and regulatory work.
Since its launch in 2013, CCNI has completed four statutory inquiries and published reports detailing its findings.
It has now removed four inquiry reports and one interim inquiry report from its website, as well as the register of removed trustees, “for consideration”.
The legal case did not challenge the substance of the decisions.
Impact on ‘registered charities’
When CCNI launched, it began a programme of enrolling charities in Northern Ireland onto the register published on its website.
Charities that were registered before May 2019 are still charities in law, but are no longer registered charities and a note to that effect has been placed on the register.
CCNI says it is working to resolve the situation, and charities do not need to do anything. It has produced a Q&A explaining the implications.
Sandra Bailie, head of organisational development, at the Northern Ireland Council for Voluntary Action (NICVA), said in an article on its website: “NICVA recommends that charities continue to operate as normal. We advise that charities continue to submit their required accounts and reports by the deadline as a matter of best practice.
“We advise charities to proceed with caution when they need to make major decisions and that they seek legal advice where necessary.”
The umbrella body said it was also lobbying government to resolve the situation as soon as possible.