From 2013-2019 Sarah Finnegan, a qualified Barrister, was legal advisor to the Charity Commission. In this period the Commission was operating unlawfully, with their statutory powers delegated to senior members of staff, none of whom were legally qualified.
This led to an incredible situation whereby draconian powers were being arbitrarily deployed by commission staff, who were often operating without any legal basis.
As well as removing trustees, wrongly registering Charities and unlawfully menacing trustees with threats of legal action without any basis in law, Commission staff were also interviewing people and placing them under oath as part of their “regulatory” work.
The very serious powers to administer oaths only exists once a statutory enquiry has been opened- which can only by law be authorised by Commissioners under Section 22 of the Charities Act 2008- yet Commission staff were routinely placing citizens under oath in circumstances whereby there was no such statutory enquiry.
The appointment of Ms Finnegan did not warrant an announcement in the ‘News’ section of the Commission’s website, which is still regularly updated. Instead her appointment was buried deep within the ‘senior management’ section of the website. The bio of their former Head of Compliance Myles McKeown, who presided over a reign of chaos within the Commission, was quietly replaced with that of the Barrister who had provided erroneous legal advice to the Commission for over 6 years.
A long-buried report into the operating of the Commission, known as the Scott Review, was finally released in March 2020. At 1.6.3 of the Scott Review it outlines that the Attorney General for Northern Ireland had informed the Charity Commission- at least prior to 2016- that they had been operating unlawfully, yet the Commission had ignored this advice and instead relied on their own legal advice.
This lead to a scathing judgment in the High Court in May 2019, and a further humiliating judgement in the Court of Appeal in February 2020 .
The judgement of the Court of Appeal, delivered by McCloskey LJ, stated in relation to some of the impugned decisions;
“It is manifestly antithetical to the values and standards driving the overriding objective which, expressly or otherwise, applies to all courts and tribunals. The agencies and individuals to whom these words are directed are exhorted to take careful note.”
The commission had steadfastly refused to take guidance from the Attorney General or countenance any suggestion that they were behaving unlawfully, instead proceeding to allegedly harass charities without any concern for constraining themselves to the powers and duties conferred not upon CCNI staff, but upon the commission.
Even after the original High Court decision, which was explicit, the commission continued to waste public money with an ultimately fruitless appeal. The appeal representations were at times nothing short of laughable. Indeed, the court appears to draw attention to the commission’s desperate efforts to come up with literally any thin justification for their actions at paragraph (25):
“No formulation of the arguments, no matter how imaginative or resourceful, can distract from the fundamental reality that these appeals raise a narrow, self contained question of statutory construction.”
The answer to that question is pretty clear. The commission do not have the power to delegate their decision-making powers to staff members, save for three discrete provisions contained within the Charities Act 2008.
The court outlined this in clear and unambiguous language at paragraph (28):
“Subject to the three exceptions noted, there is nothing in the statutory language which permits staff of the commission to exercise any of the powers, duties or functions which the statute confers on the commission.”
That raises a number of issues in relation to orders of the commission issued using the unlawful formula they deployed since their inception. It is clear that any such orders issued on the authority of a staff member were issued unlawfully. All charities should challenge any such orders out of time to the Charities Tribunal and have such decisions quashed as they are plainly wrong in law.
However, a key question is the registration of charities. If the unlawful formula has been used to register charities, then such registration would be unlawful and as such the admittance of all charities into the register would be null and void if challenged.
Prior to Christmas the Commission had to publicly deny they had a sectarian motive after several concerns were raised by charities within the unionist community in relation to the draconian, oppressive and at times bullying behaviour of the out-of-control quango.
There has been little coverage of the Charity Commission’s descent into chaos. The BBC NI Newsroom, our public service broadcaster which has so often a propaganda platform for the Commission, has been completely silent on their unlawful actions. Incredibly the BBC NI Newsroom failed to even carry the court report of the scathing Court of Appeal judgement on their website.