Another instalment in the long-running dispute between the Jehovah’s Witnesses and the Charity Commission…
In Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission  EWCA Civ 154 the Court of Appeal has held that the Watch Tower Bible and Tract Society of Britain (WT) may apply for a judicial review of the Charity Commission’s Production Order that it disclose sensitive documents as part of the statutory inquiry but dismissed an application by Watch Tower for review of the Commission’s decision to open an inquiry into the charity.
WT had sought a judicial review of the decision to launch the inquiry and of the Production Order but that application had been rejected in December 2014 because the judge said the case should be taken to the Charity Tribunal; and an appeal to the Tribunal made 10 days later was rejected in March 2015 as out of time. WT took the matter to the Court of Appeal, arguing that it should be granted judicial review because the First-tier Tribunal had power only to quash enquiries, not to limit their scope.
In relation to the inquiry issue, Watch Tower (WT) argued that the proposed inquiry was unlawful because:
- it interfered or proposed to interfere with WT’s rights of freedom of religion and of association under Articles 9 and 11 ECHR and was discriminatory, contrary to Article 14, because, by starting an inquiry with a view to changing Jehovah’s Witnesses’ religious practices, the Commission was acting disproportionately by misconstruing or misapplying s16.4 of the Charities Act 2011;
- the scope of the inquiry was so vague and undefined as not to be “prescribed by law” and/or in breach of the Commission’s obligation under s 16.4 of the 2011 Act to act transparently in performing its functions;
- the proposal that the appellants’ Safeguarding Policy include a condition that any elder running a Bible class had to be cleared through an appropriate checking system similar to the Disclosure and Barring Service was unlawful and/or impossible for the appellants to implement;
- the Commission had 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;
- the Commission had breached its duty to act fairly by failing to provide proper details of the allegations that it was making and thereby giving the appellants a fair opportunity to meet the case against them; and
- the decision to initiate the inquiry was irrational .
In relation to the disputed Production Order, WT argued that
- the scope of the Order was disproportionate;
- the information sought required production of documents containing both personal information and sensitive personal information as defined by the Data Protection Act 1998 and, unless data subjects consented to personal data being processed, the conditions in Schs 2 and 3 of that Act required the public authority to demonstrate that such processing was necessary and proportionate; and
- the information sought breached the procedural guarantees of Article 8 ECHR because, prior to disclosure, the person adversely affected had to be given notice and the opportunity to make representations before the Order was made .
The Court (Dyson MR and McCombe and David Richards LJJ) rejected the challenge to the inquiry itself but gave permission for the appellants to seek judicial review of the Production Order. McCombe J concluded that
“There can be no doubt that the High Court can effectively determine the matters sought to be raised by the appellants in resistance to the Production Order in this case and those matters concerning that Order should, therefore, be determined there rather than in the Tribunal, whose jurisdiction is (at best) doubtful” .
In short, a score-draw (almost).