England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 December 2014

MR JUSTICE DOVE:

Introduction

1. The Claimant is a charity and operates to support the adherence on the Jehovah's Witness faith. One of the initiatives which the Claimant has responsibility for is the publication of a child safeguarding policy for the use of Jehovah's Witness congregations.
2. The Defendant is the Commission which is charged with the responsibility for regulating charities. They have received complaints and developed concerns about the appropriateness of child safeguarding in Jehovah's Witness congregations. This concern, allied to the convictions of some members of Jehovah's Witness congregations for historic sexual abuse, has led to the decisions which are presently the subject of this application for permission to apply for judicial review.
3. The first of those decisions is that on 27 May 2014, communicated in a letter of 5 June 2014, the Defendants decided to initiate a statutory inquiry under section 46 of the Charities Act 2011 in relation to child safeguarding issues in respect of the Claimant. In an eleven page letter communicating the decision, a wide range of issues relating to child safeguarding matters have been raised for investigation.
4. The second decision is that on 20 June 2014 the Defendant served two production orders under the 2011 Act on the Claimant. One of these production orders has now been addressed and the concerns in relation to that have fallen away.
5. There remains a challenge to the other production order which seeks a wide range of documentary records all relating to child safeguarding matters. For instance, the order seeks documents recording allegations of abuse, and advice and guidance provided in relation to any incidents of an allegation of sexual abuse. It also seeks minutes of any meetings associated with child safeguarding in which the Claimant may have participated.
6. In respect of both the inquiry and also the production order, the Claimant contends that they are drawn in terms which are far too wide. Further detailed issues are set out below.
7. I wish to emphasise in giving this short judgment that I am not presently concerned at all with the merits of whether or not the Defendant's decision is justified. I also wish to make it crystal clear that I am not involved at all at this stage in relation to the merits of the child safeguarding procedures for which the Claimant provides a policy.
8. I am solely concerned with a simple and discrete preliminary issue. That preliminary issue, which has been raised by the Defendant, is that these proceedings seeking judicial review are inappropriate because there are suitable and appropriate statutory remedies provided by the 2011 Act involving the First-tier Tribunal which the Claimant should have recourse to rather than seeking to apply for judicial review.

The broad principles

9. It is often said that judicial review is a remedy of last resort. That may be a useful shorthand, but it is very far from being the complete story. In substance, the question of whether or not there is an appropriate alternative remedy arises as an exercise of the court's discretion. If there is an appropriate alternative statutory remedy, then the court will decline to exercise its jurisdiction as an act of discretion. The Claimant should then pursue that statutory remedy.
10. The adequacy of the reach of the alternative remedy will of course be an important consideration in deciding whether or not it is appropriate for judicial review to be sought: see for instance Leech v the Governor of Parkhurst [1988] AC 533 per Lord Bridge at page 567 and R (on the application of) Shoesmith v Ofsted and Ors [2011] EWCA Civ 642 at paragraph 98.
11. Where a separate specialist statutory regime has been established by Parliament, there would need to be powerful reasons or exceptional circumstances to bypass that regime and permit an application for judicial review: see the decision of the Court of Appeal in R (on the application of) Willford v Financial Services Agency [2013] EWCA Civ 677.
12. It plainly is not possible to be definitive about the boundaries of where exceptional circumstances should be drawn, but in assessing whether or not an alternative remedy is convenient, expeditious and effective (see the language of Simon Brown LJ in R (on the Application of) Devon County Council ex parte Barker [1995] 1 All ER 73) and not clearly unsatisfactory (see Moore-Bick LJ in Willford at paragraph 20), the court will have regard to the nature of and context of the decision, the statutory regime, the reach of the remedy, the need for fact finding and the convenience of the process offered by the alternative remedy.
13. It is very clear from the authorities that a simple balance of deciding pragmatically which is the most convenient or speedy or effective remedy is not enough. There is a presumption that the bespoke statutory regime will be deployed unless there are clear and powerful reasons which exceptionally justify judicial review being permitted. R (Great Yarmouth Port Company Limited) v Marine Management Organisation [2013] EWCA 3052 is a clear illustration of these principles in operation.
14. Against the background of those broad principles, I propose to consider each of the decisions in this case in turn, starting with the production order and then considering the inquiry.

The production order

15. The Commission's role is proscribed in the 2011 Act. At section 15 their general functions are identified, in particular as pertains to this case, as follows:

"15(1) The Commission has the following general functions...

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."

16. The Act also proscribes the Commission's general duties as follows:

"16. The Commission has the following general duties...

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)."

17. So far as production orders are concerned, specific powers are provided by the 2011 Act in section 52 to enable the Commission to call for documents. Section 52 provides:

"52(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."

18. There is an appeal against a production order which is provided by section 320 of the 2011 Act as follows:

"320(2) On such an appeal the Tribunal must consider whether the information or document in question -

(a) relates to a charity;

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

19. Within schedule 6, powers are proscribed in relation to the various types of decision which might be reached by the First-tier Tribunal. In relation to a production order under section 52, the powers of the First-tier Tribunal are described as follows:

(a) quash the order;

(b) substitute for all or part of the order any other order which could have been made by the Commission."

20. The Claimant's complaints in relation to the production order are that it is disproportionate and too wide. In particular, they complain that compliance with the order and the disclosure which would follow would be likely to involve breaches of data protection legislation and also breaches of the human rights of persons to whom some of the documentary records might pertain.
21. It is to be noted that the power of the First-tier Tribunal on an appeal directly mirrors the power which is provided to the Defendant under section 52. It is to my mind therefore entirely clear that the First-tier Tribunal has a jurisdiction to deal with the Claimant's complaint about both the breadth and the proportionality of the order.
22. Turning specifically to the complaints raised in relation to the human rights aspect and Article 8, there is in my view no doubt that Article 8 is potentially very obviously engaged in relation to the extent of the documentation which has been sought. There is equally in my view no doubt that the deliberations and decisions of the First-tier Tribunal would also need to accord with the requirements of the Human Rights Act 1998. In particular, section 6 of the 1998 Act would apply to the Tribunal and require them to take that directly into account in reaching any conclusions on any appeal against the production order.
23. Thus, in concluding whether under section 320(2) that information or documents were relevant to the discharge of the functions of the Commission, compliance with Article 8 and other relevant elements of the Human Rights Act would have to be considered in assessing the extent to which, if at all, the order is to be upheld.
24. In my view, similar considerations apply in relation to the data protection legislation relied upon. The definition of the Defendant's functions under section 15 does not clothe the Defendant with authority to act unlawfully or in breach of other legislation, such as the data protection legislation, which will govern its operations. This point applies with equal force to the discharge of the function of exercising the power under section 52 and therefore also applies with equal force to the appeal jurisdiction in the First-tier Tribunal.
25. It follows from what I have set out that I am entirely satisfied that as a matter of statutory construction and therefore as a matter of law all of the Claimant's complaints raised in these proceedings can be raised before the First-tier Tribunal and that they will have to consider them in exercising their powers under the appeal provisions which I have set out above.

The inquiry

26. The Defendant has a power to institute an inquiry pursuant to section 46 of the 2011 Act. That provides as follows:

"46(1) 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."

27. For the purposes of applications to the First-tier Tribunal, section 320(2) makes an inquiry under section 46 a reviewable matter. The importance of that is that reviewable matters can be the subject of an application to review made to the First-tier Tribunal under section 321 of the 2011 Act.
28. Section 321 provides as follows:

"321(1) An application may be made to the Tribunal for the review of a reviewable matter...

(4) In determining such an application the Tribunal must apply the principles which would be applied by the High Court on an application for judicial review.

(5) The Tribunal may --

(a) dismiss the application, or

(b) if it allows the application, exercise any power mentioned in the entry in column 3 of Schedule 6 which corresponds to the entry in column 1 which relates to the reviewable matter."

29. That latter quote relates to the powers provided in schedule 6 in respect of the various types of review that the First-tier Tribunal might undertake. In relation to a review of a decision to institute an inquiry under section 46, the power is described as "Power to direct the Commission to end the inquiry."
30. Whilst during the course of submissions in this case the Claimant from time to time contended that judicial review might be a more convenient or expeditious remedy, their submissions in my view gained far more traction when they were directed to the question of the adequacy of relief which might be available from the First-tier Tribunal.
31. The Claimant contends that the relief in relation to narrowing the scope of the inquiry, which they seek, would simply not be available. At present (although I observed in the course of argument this position may change) the Claimant accepts that there may be justification for some sort of inquiry being instituted under section 46, but not one with the breadth of the current terms of reference proposed by the Defendant. In this claim for judicial review, they seek a partial quashing of the section 46 decision and/or declarations which seek to narrow its scope beyond that which is currently on foot.
32. The submission as made is that the mere power to direct the inquiry to end is not enough to meet the needs of this case. What the Claimant contends should happen is that the parameters of the inquiry should be dramatically reined in to focus far more on those matters which may possibly justify the use of the Defendant's power under section 46.
33. In resisting these submissions, the Defendant has relied upon the recent Upper Tribunal case of Regentford Limited v The Charity Commission [2014] UKUT 364, but in my view that does not in and of itself provide direct assistance in relation to the question of remedies with which this application is concerned. It confirms that the First-tier Tribunal is exercising an error of law jurisdiction in a review of this kind over what is a wide discretionary power vested in the Defendant to initiate an inquiry where there are "significant causes for concern."
34. In my view, the Defendant's more constructive submission in response Claimant's concerns was that if not directly then certainly indirectly, the First-tier Tribunal have power to provide the equivalent of the relief which is sought by the Claimant in these proceedings if they are found to be correct in their contentions on the merits.
35. The process would operate as follows. On the assumption that the Claimant's contentions on the merits were accepted, it would open for the First-tier Tribunal to conclude that it was an error of law for the Defendant to have opened an inquiry of the breadth which they did and in directing the Defendant to bring the inquiry to an end, they would have to explain in the reasons that they offered why that was, leaving it then open to the Defendant to initiate an inquiry with a narrower scope in accordance the reasons for dismissing and ending the existing broad-scoped inquiry.
36. Alternatively, they could conclude that the Defendant had been entitled to consider that there were significant causes for concern so as to justify the opening of the inquiry under section 46, but the elements of that inquiry would not be consistent with the Defendant's duties under section 16.4 of the 2011 Act. They would make that clear in the reasoning of their decision and would have to do so in order to deal with and dismiss the Claimant's submissions. The Defendant would then be obliged to respect that decision as to the parameters of the section 46 inquiry in undertaking it.
37. So far so good. But, says the Claimant, what happens if they did not do that or if there is a dispute about the true perimeters which have been identified by the First-tier Tribunal? In my view, there is an answer to this contention.
38. The first answer, which is not complete, is that the Defendant is a responsible public body which should be expected to respect and properly apply the decision of the First-tier Tribunal. I accept however that that is, with respect to the Defendant, not a sufficient answer in and of itself.
39. In my view in the instance of intractable disagreement, whilst it is clear that the First-tier Tribunal would not have jurisdiction to act, nevertheless at that point judicial review would be available in relation to the investigative steps and insofar as the decision of the First-tier Tribunal had not been properly respected, this court would have jurisdiction to entertain the Claimant's application both in relation to the application of the First-tier Tribunal's decision and the Defendant's actions in that regard.
40. Thus whilst the answer is not straightforward nor immediately self evident, on reflection I am satisfied that effective remedies are available to the Claimant such that, as an exercise of discretion, in this application permission should be refused.
41. I should add that a further exchange of submissions has been made in relation to a case drawn to my attention since argument closed, but that has not added materially at all to my conclusions which are reached as a matter of principle on the basis of the proper construction of the Act and the proper approach to be taken to the remedies in this case.
42. It follows the Claimant can now apply to the First-tier Tribunal under the statutory regime. I am satisfied that the First-tier Tribunal has power to extend time in relation to that application. Whether or not it does so will be a matter for it to consider on all of the circumstances that pertain at that time.
43. It suffices to say at this stage that I refuse permission for the Claimants to apply for judicial review in this application.