All along the Watchtower

Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission [2016] EWCA Civ 154

http://www.bailii.org/ew/cases/EWCA/Civ/2016/154.html

This is a quirky case, involving an appeal from an application for judicial review. The judicial review arose because the Charities Commission sought to open an investigation into the charity Watch Tower (which is a charity connected with the Jehovah’s Witness faith), because of some criminal convictions of three Jehovah’s Witnesses.

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.

2. 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.
3. 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.

I’ll re-emphasise that – none of the former Jehovah’s Witnesses who were convicted of historic sexual offences had any connection with Watch Tower.

The Charities Commission used their powers under the Charities Act 2011 to compel production of documents held or obtainable by the charity.

s52 “(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…”

What they sought was the following:-

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.”

Watch Tower in turn sought to challenge the decision to launch an inquiry, and to seek a Production Order in those terms.

6. 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.”

7. 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.”

There are thus some really interesting issues about data protection, freedom of religious expression, article 8 right to private and family life, and balancing those matters against safeguarding and protecting children from abuse within an organised religion.  (Note, I am not saying that there is any culture of abuse within the Jehovah’s Witness religion – three convictions of people who happened to be Jehovah’s Witnesses does not make a culture comparable to say the problems that Catholicism has had over recent years and it can easily be argued that there is mere coincidence here, but one can also see why the Charities Commission would want to ensure that there was no such culture or practice in any Charity that it regulates)

Annoyingly, this case doesn’t deal with any of that, because it all turns on a tricky and arcane point of law as to the initial Judge refusing the application for judicial review to challenge those two decisions on the basis that Watch Tower should have gone to the First Tier Tribunal to challenge those issues (you can’t judicially review if there is another mechanism for challenge)

The Court of Appeal held that Dove J, who refused the application for judicial review, was right on the first question – should the challenge to the decision to commence an inquiry have been made to the First Tier Tribunal? Yes.

But was wrong on the second – should the challenge to the Production Order have been made to the First Tier Tribunal? Dove J’s answer, yes, was wrong.

The wording of the Charities Act 2011 at s320 deals specifically with appeals against Production Orders

Section 320 provides:

“(1) Section 319(4)(a) does not apply in relation to an appeal against an order made under section 52 (power to call for documents).

(2) On such an appeal the Tribunal must consider whether the information or documents in question-

(a) relates to a charity;

(b) is relevant to the discharge of the functions of the Commission or the official custodian.

(3) The Tribunal may allow such an appeal only if it is satisfied that the information or document in question does not fall within subsection (2)(a) or (b).”

All that the First Tier Tribunal can do on a challenge to a Production Order is rule as to whether the information or documents sought (a) relate to a charity and (b) are relevant to the functions of the Commission.  If they are, the Production Order stands. If not, then it doesn’t.

So the wording of s320 meant that the First Tier Tribunal could not actually take into account Watch Tower’s arguments about Data Protection Act, proportionality, necessity and article 8 rights, and fundamentally whether there was any reasonable justification for asking for such wide-ranging disclosure GIVEN that there was no link between Watch Tower and the three men convicted, save that they shared the same faith .

Thus Dove J was incorrect (though forgiveably so) in ruling that the judicial review of THAT decision should be refused because Watch Tower could go to the First Tier Tribunal instead.

Thus, the appeal was allowed in relation to the refusal of permission to judicially review the decision of the Charities Commission to seek the Production Order, and the High Court will in due course deal with this. The Court of Appeal wisely stay out of the pros and cons of the Production Order, and whether the Charities Commission were “Wednesbury Unreasonable” to have issued it.

[If you are thinking that I chiefly wrote about this because it gave me the chance for a Jimi Hendrix reference, then you know me quite well.  I could also, given that Dove J was successfully appealed, gone for Prince and titled it “When Dove J Cries” ]