By Jamie Bryson
It seems to be the practice, in line with the Commission’s internal manuals, that the initial investigative steps in investigating any charity- whether of the Commission’s own motion or in response to a complaint- is carried out by staff.
This is not simply an administrative exercise, such as receiving the complaint, making a recommendation, and then presenting it to the Commissioners (who as a matter of law are the Commission) for a decision on how to proceed at all stages in the investigation. If this was the sole role of staff, then no issues would arise.
However, what in fact happens is that staff carry out the initial investigation, which necessarily involves making decisions as to how to progress an investigation, and ultimately it is staff who take the decision as to what investigative steps are to be taken, and it is only if staff decide that there may be a requirement for the exercise of statutory powers that the matter is referred to the Commissioners for a decision.
Put simply, staff carry out the investigation, making all decisions as to how it proceeds and then act as a gatekeeper as to whether the investigation concludes with self-regulatory advice or another outcome which does not require statutory powers. It is only if the investigation is going to escalate to the most serious level that the staff then refer the matter to Commissioners.
This may seem, and probably is, as a matter of policy a reasonable approach given the resources available to the Commissioners, and the fact they are part-time (or even less than part-time in truth). However, it is unlawful.
The problem is obvious; the line as to where staff powers end and the Commissioner’s functions begin has been drawn in the wrong place.
This is so because the discharge of the Commission’s functions must be carried out by the Commission- that means Commissioners. In circular fashion: the Commissioners are the Commission.
In McKee, Hughes and AG for NI [2020] NICA 13 it was expressly made clear that the Commission’s functions cannot be discharged by staff, but rather fell to be discharged solely by Commissioners (see, inter alia, McCloskey LJ in para 38 and 44)
The ‘practicality’ (my word) argument that staff had to carry out some functions as this was an inevitable consequence of workload was also advanced as a defence under the heading of ‘inevitability’ in McKee, Hughes and AG for NI. It was dismissed in its entirety (see para 44).
So what, for present purposes, is the relevant function?
Section 8 (2) (3) provides:
“3. Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein.”
It is simply not credible, in light of the obvious scope of section 8 (2) (3) of the 2008 Act to suggest that staff carrying out investigations, inclusive of deciding whether to take remedial or protective action short of using statutory powers, or making the decision as to whether statutory powers will be considered and thus acting as a gatekeeper of the exercise of such powers, does not fall within that function.
If that analysis is correct, and it seems improbable there is even an arguable case against it, then the inevitable consequence is that the Commission is acting unlawfully in the manner investigations are currently being handled.
‘Not so fast’, I anticipate the Commission may say, ‘what about the longstanding manuals, which were approved by Commissioners authorising the functions to be discharged in this way’?
Two points defeat that: Firstly, as set out in McKee, Hughes and AG for NI (see para 37), the Commission’s own internal manuals have no legal standing. Put simply, they cannot override or impliedly repeal (plainly such a suggestion would be a laughable absurdity) the clear and express statutory requirements.
Secondly, Commissioners cannot- via a manual or otherwise- delegate their statutory powers to staff within the framework of the 2008 Act. This is a legal point beyond any rational dispute.
‘But hold on’ (I anticipate the Commission may say), ‘what about the 2022 Act, we fixed these issues after the Court of Appeal’.
Two points the Commission may make in support of this:
(i) functions can now be delegated to staff;
(ii) the 2022 Act has said in section 1 (2) that “Every relevant action is to be treated as, and as always having been made or a thing done by the Commission”.
Let us start with (ii). In truth, it’s unlikely the Commission- certainly with the benefit of legal advice- would ever actually make this point. It is so obviously wrong.
This is so because section 1 (1) of the 2022 Act makes clear this provision only applies to acts done before 16 May 2019. It is a retrospective not prospective provision. It applies before 16 May 2019, but not after.
There are also a range of qualifications on section 1 (2), which aren’t particularly relevant for the purposes of this argument. In summary, it is suffice to say that section 1 of the 2022 Act doesn’t provide any assistance to the Commission.
Then, out of sequence, dealing with (i). It is true that some of the Commission’s functions can now be delegated to staff. This is so because of section 2 of the 2022 Act.
A preliminary nerd’s point on that: the 2022 Act provides in section 2 that a paragraph 9A is to be inserted in Schedule 1 to the 2008 Act after paragraph 9. The legislation as currently set out on www.legislation.gov.uk has inserted 9A as a new section within the main body of the 2008 Act, rather than putting it within schedule 1 to the 2008 Act.
In any event, dealing with the substance of the new provision, the delegation of powers can only lawfully be made via a scheme put in place by the Department of Communities. No such scheme is in place, and indeed the consultation (which is a pre-requisite to bringing into force any scheme of delegation) has not even been launched by the Department.
Accordingly, the 2022 Act provides no defence to the Commission for present purposes.
In regards the present issue, the question all turns on whether in discharging some of the investigative functions, that staff’s actions therefore fall within section 8 (2) (3) of the 2008 Act.
It seems that they indisputably do. In that circumstance, the Commission is therefore acting unlawfully, and all investigations are open to legal challenge because they have been conducted without any lawful power.
We seem to be looking at a repeat of the chaos the Commission- and Charity sector- was thrown into by the error exposed by the Court of Appeal.
If the analysis in this article is correct, then everything post-16 May 2019- until this present day- in terms of investigative steps/decisions taken by staff alone has been unlawful.
It should be said that this isn’t a case of maliciousness by the Commission, in my view. I believe it is simply an error which has been overlooked, likely as a consequence of being under-resourced and perhaps out of necessity.
Nevertheless, the Commission is a public body and such an error requires correcting, and anyone adversely affected by it is entitled to a remedy.