Watch Tower Bible & Tract Society of Britain & Others v The Charity Commission
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice McCombe,Lord Justice David Richards |
| Judgment Date | 15 March 2016 |
| Neutral Citation | [2016] EWCA Civ 154 |
| Docket Number | Case No: C1/2014/4190 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 March 2016 |
[2016] EWCA Civ 154
The Master of the Rolls
Lord Justice McCombe
and
Lord Justice David Richards
Case No: C1/2014/4190
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE DOVE
CO39742014
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Clayton QC and Lee Parkhill (instructed by Sharpe Pritchard LLP) for the Appellant
Iain Steele (instructed by Litigation and Review Team) for the Respondent
Hearing date: 10/02/2016
The appellants are a registered charity ("Watch Tower") and its trustees. The respondent ("the Commission") is the statutory regulator and registrar of charities in England and Wales under the Charities Act 2011 ("the 2011 Act"). The Commission wishes to investigate concerns in respect of Watch Tower regarding safeguarding of vulnerable beneficiaries, in particular children who are subject to or make allegations of sexual abuse by individuals who are connected with Jehovah's Witness congregations.
On 27 May 2014, the Commission initiated an inquiry under section 46 of the 2011 Act to investigate inter alia (i) Watch Tower's handling of safeguarding matters, including the creation, development, substance and implementation of its safeguarding policy; and (ii) the administration, governance and management of the charity by the trustees and whether or not the trustees have fulfilled their duties and responsibilities as trustees under charity law.
The Commission's decision to initiate the inquiry ("the Inquiry Decision") arose out of three criminal trials against former members of congregations of Jehovah's Witnesses in respect of historic sex offences. I should say that none of these was connected with Watch Tower.
On 20 June 2014, the Commission issued a Production Order under section 52 of the 2011 Act ("the Production Order") requiring Watch Tower to produce:
"(a) All documents created on or after 1 June 2011 setting out or recording an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity.
(b) All documents created on or after 1 June 2011 setting out or recording a request for advice and/or guidance from a congregation charity and/or charity trustee, officer, agent or employee of a congregation charity that relates to an instance or allegation of, or complaint about, abuse of or by a person who is or has been a member of the charity or a congregation charity.
(c) All documents created on or after 1 June 2011 setting out or recording advice and/or guidance provided by and/or on behalf of the charity to a congregation charity, and/or a charity trustee, officer, agent or employee of any congregation charity; and that relates to an instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity.
(d) All minutes of any meetings of the charity, its staff and/or its members, other than minutes of charity trustees' meetings, held since 1 June 2011 in which the following matters have been discussed:
i. Policies and practice for safeguarding persons who come into contact with the charity and/or any congregation charity.
ii. Any instance or allegation of, or complaint about, abuse of or by a person or persons who is or has been a member of the charity or any congregation charity;
iii. Policies and practice for the internal disciplinary proceedings of the charity and any congregation charity, including but not limited to disfellowship proceedings."
These proceedings
The appellants seek judicial review of (i) the decision to initiate the inquiry and (ii) the Production Order.
In relation to the Inquiry Decision, their case is that the proposed inquiry is unlawful on the grounds that (as summarised in their skeleton argument):
"(1) the Commission is interfering and/or is proposing to interfere with the Appellants' rights of freedom of religion under Article 9 under the Human Rights Act and freedom of association under Article 11 by commencing an inquiry with a view to changing Jehovah's Witnesses' and Appellants' religious practices, and is acting disproportionately and/or is acting disproportionately by misconstruing or misapplying s16.4 of the Charities Act 2011;
(2) the scope of the inquiry is so vague and undefined that it breaches the Appellants' Article 9 and/or 11 rights because the restrictions placed on it are not 'prescribed by law' and/or in breach of the Commission's obligation under s16.4 of the 2011 Act to act transparently in performing its functions;
(3) the Commission is acting unlawfully in proposing that the Appellants' Safeguarding Policy include a condition that any Elder running a Bible class must be cleared through an appropriate checking system similar to the Disclosure and Barring Service which is unlawful and/or impossible for the Appellants to implement;
(4) the Commission has breached the Appellants' right not to be discriminated against in breach of Article 14 and/or its obligation to act consistently under s16.4 of the Charities Act in performing its functions and/or in breach of the common law principle of consistency;
(5) the Commission has erred in law in its approach to the duties of Trustees by misconstruing or misapplying the duties owed by the Appellants under the Companies Act 2006;
(6) the Commission has breached its duty to act fairly by failing to provide proper details of the allegations it is making and thereby giving the Appellants a fair opportunity to meet the case against it; and
(7) in the circumstances the decision to initiate the inquiry was irrational."
In relation to the Production Order, their case is that it too is unlawful in that (quoting again from their skeleton argument):
"(1) the scope of the Order is disproportionate;
(2) the information sought requires the Appellants to produce documents containing personal information and sensitive personal information as defined by the Data Protection Act 1998; and unless the data subject consents to his personal data being processed, the conditions in Schs 2 and 3 require the public authority to demonstrate that processing is 'necessary' and proportionate: see the Supreme Court in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421….; and
(3) the information sought breaches the procedural guarantees of Article 8 rights because prior to disclosure, the person adversely affected must be given notice and the opportunity to make representations before the order was made: see R(TB) v The Combined Court At Stafford [2007] 1 WLR 1524."
On 12 December 2014, Dove J refused the appellants permission to apply for judicial review on the sole ground that the appellants should have appealed to the First-tier Tribunal ("FTT"). The judge did not adjudicate on the substantive issues.
The issues arising on the appeal
Two issues are raised by the appeal. The first is whether the FTT has power to provide an effective and convenient remedy in relation to the appellants' complaint that the Inquiry Decision was unlawful. The argument before us has focused on the particular complaint that the proposed inquiry is too broad and disproportionately interferes with their religious beliefs and practices contrary to articles 9 and 11 of the European Convention on Human Rights ("the Convention"). The second issue is whether the jurisdiction exercisable by the FTT under section 320 of the 2011 Act to entertain an appeal against a section 52 production order includes a power to address a complaint that the order is unlawful.
By a Respondent's Notice, the Commission seeks to uphold the decision of Dove J on the additional basis that the appellants have no arguable grounds for seeking judicial review anyway.
The statutory framework
The "general functions" of the Commission are described in section 15(1) of the 2011 Act. They include:
"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 in the administration of charities."
Its "general duties" are described in section 16. They include:
"4. In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed)"
Section 46(1) provides that "the Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes".
Section 52 confers on the Commission the power to call for documents. It provides:
"(1) The Commission may by order –
(a) require any person to provide the Commission with any information which is in that person's possession and which –
(i) relates to any charity, and
(ii) is relevant to the discharge of the functions of the Commission or of the official custodian;
(b) require any person who has custody or control of any document which relates to any charity and is relevant to the discharge of the functions of the Commission or of the official custodian—
(i) to provide the Commission with a copy of or extract from the document…"
Section 319 provides:
"(1) Except in the case of a reviewable matter (see section 322) an appeal may be brought to...
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