Charity Regulation in Northern Ireland – An Update

The judgment in McKee & Others v Charity Commission for Northern Ireland delivered in February 2020 held that the Charity Act (Northern Ireland) 2008 (the “Act”) did not provide the Charity Commission for Northern Ireland (the “Commission”) authority to delegate decision making to staff acting alone and that as such, the Commission must meet as a complete body to lawfully make decisions.

Following that judgment, an Independent Review of Charity Regulation in Northern Ireland was commissioned by the Minister for Communities and remains ongoing.

In addition to the Independent Review, new legislation has been proposed to the Northern Ireland Assembly to make provision regarding the lawfulness of decisions taken or other things done by staff of the Commission, and about exempting charities, by reference to conditions related to thresholds, from the duty to be registered in the register of charities.

The Bill as proposed will amend the Act with retrospective effect to render lawful previous decisions taken by Commission staff in reliance on unlawful delegation in cases where doing so is consistent with rights under the European Convention on Human Rights and the decision is not unlawful on other grounds. It will provide a power of delegation to Commission staff going forward provided the functions to be delegated are set out in a Scheme of Delegation approved by the Department, but will stipulate that certain functions can never be delegated to staff.

The overarching objective of the Bill is to deal with the issues raised by the judgment in a way that protects charities, protects rights and restores the pillars of the regulatory framework for charities. The Bill has three substantive clauses which are briefly summarised below:

1. Actions of Commission staff treated as Commission actions

Clause 1 makes provision with retrospective effect to make the majority of decisions taken by Commission staff lawful.

2. Power of Commission to delegate to staff

Clause 2 inserts paragraph 9A into Schedule 1 to the Act allowing for certain functions to be delegated to staff provided they are set out in an approved Scheme of Delegation.

3. Power to introduce a registration threshold via regulations

Clause 3 inserts new sections 16A to 16C which provide a power to introduce a registration threshold through regulations at some future point, subject to the draft affirmative procedure (except in the case of varying the amount of an existing threshold). The power will allow for the regulations to:

• Exempt charities falling below the threshold from the requirement to register;
• Determine the nature of the threshold;
• Determine any evidence to be provided to the Commission and allow for that evidence to be used in pursuance of the Commission’s functions;
• Apply or dis-apply any provision of the Act to any charity exempted from registration by the threshold; and
• Amend any offences or introduce similar or corresponding ones as a consequence of the threshold.

The clause itself will permit charities falling below the threshold to register voluntarily or be removed from the register if they so wish.

The Charities Bill is currently at the second stage. A call for evidence and views on the Charities Bill opened on 14 July and closes on 3 September.

For more information or advice, please contact a member of the Charities team at Carson McDowell.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.