Your privacy is important to us.
In February 2020 the Court of Appeal dismissed the appeal by the Charity Commission for Northern Ireland (“CCNI”) against Madam Justice McBride’s High Court Judgment of May 2019, which found that CCNI do not have implied or express power to delegate their functions to staff acting alone. The result of this was that most decisions of CCNI since its inception, including registrations of charities in Northern Ireland, were rendered unlawful.
This decision has understandably caused confusion for charity trustees in Northern Ireland. Just over 7,200 decisions, which include registrations and a range of consents given to charities (such as changes to their governing documents, or permission to carry out certain transactions) were affected. However, it seems that a comprehensive legislative fix to the issue is on the horizon.
Various options were considered by the Department for Communities (“Department”) ranging from doing nothing to introducing primary legislation with retrospective effect to make decisions taken by CCNI staff lawful. The Department decided to go for the latter option; as a result, the Charities Bill 2021 was initiated last year, and has now finished its progress through the Assembly. The Bill will now go forward for Royal Assent, the final stage in the legislative process.
The Bill will make the majority of decisions taken by CCNI lawful and provide fresh appeal rights for those decisions. Such appeals must be brought within 91 days from when the Bill comes into force. Certain decisions, including those which are subject to ongoing litigation, will not be subject to the clause and will therefore remain unlawful. In such cases, a fresh decision would need to be made.
It was clearly important to distinguish between the controversial and uncontroversial decisions as there are human rights issues to be considered (under the European Convention on Human Rights) when introducing legislation which is retrospective rather than prospective.
The Bill also inserts a prospective provision allowing for certain functions to be delegated to staff going forward, provided they are set out in a Scheme of Delegation approved by the Department and that the first such scheme must be the subject of a public consultation. Staff of the English Charity Commission already have this power and it is felt that this provision is necessary for CCNI to undertake its duties in an efficient manner. However, the Bill will make it clear that certain decisions will not be capable of being delegated and must be approved by the Commissioners.
Finally, the Bill also provides a power to introduce a registration threshold which would allow for a de minimas exemption for small charities as is in place in England.
CCNI has stated that “the Act will bring certainty to all those decisions, and reassurance to charities that they can rely upon them and any transactions which have been carried out on foot of such decisions. The safeguards within the Act ensure that additional strain will not be placed on charities and any lingering uncertainty will be lifted”.
It is understood that CCNI will be developing a series of FAQs over the coming months aimed at advising charities and the wider public on what the new law will mean for them and the regulation of charities in Northern Ireland as a whole.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Charities & Social Enterprises at Cleaver Fulton Rankin for further advice or information.