The High Court has ruled a judicial review will take place concerning the Charity Commission’s decision to pressure two charities, the Joseph Rowntree Charitable Trust (JRCT) and the Roddick Foundation, to commit to never funding independent advocacy organisation Cage again.

Following public statements made by representatives of Cage, including director Asim Qureshi (pictured) earlier this year about Mohammed Emwazi (believed to be the Islamic State executioner ‘Jihadi John’) and the public reaction to them, the Charity Commission sought and secured assurances from JRCT and the Foundation that they were not funding Cage and that they had no intention of doing so in the future.

In a press release JRCT stated that its last payment to Cage was in January 2014 and that it had been ‘put under intense regulatory pressure to rule out any future funding of Cage’.

The actions of the Commission led Cage, which says it works to empower communities impacted by the ‘war on terror’, to apply to the High Court for a judicial review of the actions of the Commission. Cage claimed that the Commission had exceeded its role as government regulator by pressuring JRCT and the Foundation, despite Cage not being a charity itself. The application for judicial review was granted by Lord Justice Burnett on 23 July.

In response to the grant of the application for judicial review, Cage said that ‘the Charity Commission’s actions against Cage have sent a chill through the charity sector, and this is a welcome step in the right direction for all members of civil society’. The Commission said that its aim in seeking the assurances from the charities was ‘to protect the public trust and confidence in charity and ensure the trustees in charities were complying with their legal duties towards their charity. We remain of the view that this was the responsible course of action for the charity regulator to take’.

At a hearing this month, Cage will argue that the Charity Commission overstepped its powers and acted outside of the law in seeking assurances that charities should cease funding Cage.

Judicial review

As readers may be aware, the Administrative Court will consider whether the Commission has acted in accordance with its legal obligations and if not, can make a decision declaring its actions unlawful. The grounds for judicial review can be categorised under four heads (i) illegality; (ii) irrationality; (iii) procedural unfairness and (iv) legitimate expectation. Cage succeeded in its application for judicial review under the illegality head on the basis that the Commission had improperly exercised a power that it does not have.

The court will be concerned with whether the law has been correctly applied and the correct procedures followed. To succeed in its challenge Cage will need to demonstrate that the Commission has taken a decision or action that is beyond the powers given to it by law.

Procedure

An application for permission to apply for judicial review must be made promptly and in any event within three months from the date when the grounds for the application first arose. There is an overriding requirement of promptness and it should not be assumed that a claim will be in time just because it is brought within three months.

Claims based on EU law are not subject to the overriding requirement of promptness and therefore need only be brought within three months. Challenges to planning decisions and challenges to procurement decisions do have different time frames within which to bring a challenge; namely six weeks and 30 days respectively.

The Judicial Review Practice Direction should be followed when judicial review is contemplated. During the pre-action stage, if there is time a letter before claim should be sent to the public body. That letter should identify how the public body has erred, what should be done to put this right and request a response within 14 days. If a satisfactory response is not received then an application for permission to bring judicial review should be made, usually issued in the Administrative Court.

At the same time, the claim form and grounds must be lodged with the court together with any supporting witness statements and the court fee. The defendant will have 14 days to file an acknowledgement of service and to set out its grounds. If permission is refused the claimant has seven days to request that the decision be reconsidered at an oral hearing. If permission is granted then with 35 days of the decision to grant permission the defendant has to file and serve its detailed grounds of resistance.

A full hearing will then follow.

Implications if the Commission loses

If Cage is successful in its judicial review challenge the remedies available to the court are as follows:

  • Quashing order;
  • Prohibiting order;
  • Injunction;
  • Mandatory order;
  • Declaration;
  • Damages.

If the Commission loses, it is likely to result in the decision of the Commission being quashed and overturned. In those circumstances, it is likely that the Commission will have to reconsider the issue of pressuring charities to commit to never funding Cage again.

All the remedies listed above are discretionary. Even if the court does find that the Commission has acted unlawfully it does not have to grant a remedy, particularly in circumstances where the claimant’s own conduct is deemed wrong or unreasonable.

Jade Campbell is a solicitor in the business recoveries and commercial litigation team at Wedlake Bell

Topics