OG117-1 Investigations Work - Our Role, Aims and Values

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Policy Statement/Overview

IMPORTANT NOTE

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  • The guidance has not undergone an extensive review at this stage; it will be reviewed and renumbered at a later date.
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Summary of the guidance

This guidance provides the legal context under which regulatory action takes place and sets out the principles by which we work.

Casework Guidance

Please read the IMPORTANT NOTE on the front page

OG117 A1 - 6 March 2014

OG117 A1 Our Role, Aim and Principles

 

1. The Charity Commission's role

The Charity Commission is established by law as the independent regulator and registrar for charities in England and Wales.

The Charities Act 2011 provides the Commission with clear objectives for regulating charities; they are:

  • Increasing public trust and confidence in charities; and
  • Promoting compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities.  

Within its general functions the Commission will:

  • Encourage and facilitate the better administration of charities;
  • Identify and investigate the most serious cases of apparent misconduct or mismanagement in the administration of charities where there is a high risk and impact on the charity or beneficiaries concerned and take remedial or protective action in line with the Commission's Risk Framework.

Responsibility for the Commission's investigations work falls to the Investigations, Monitoring and Enforcement function.

For further information about our general approach as regulator and the values and principles that underpin our work see Our Approach to Regulation on our web site. In carrying out our functions we will 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. Our Risk Framework sets out these principles.  

This guidance sets out the policy upon which our regulatory action is based and the principles that underpin this work.

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2. How human rights legislation our work

The Human Rights Act 1998 incorporates into UK domestic law the provisions of the European Convention of Human Rights and provides that it is unlawful for a public authority, like the Commission, to act in a way which is incompatible with the human rights set out in the Convention. More general information on the Human Rights Act is contained in OG 71. Before any regulatory decision is taken by the Commission which is likely to be an interference with human rights the impact of the decision must be carefully considered.

Such consideration should take into account all persons who may be affected by the proposed action, and what impact upon them can reasonably be anticipated. Some of the human rights protected by the European Convention can apply to corporate entities as well as individuals, so it may be appropriate to consider the human rights of charitable companies separately from individual trustees and where relevant beneficiaries, or any other persons or entities who may be directly or indirectly affected by our decisions.

Caseworkers must also be aware of equality and diversity. When communicating with charities caseworkers should offer to translate documents into another language, another format, e.g. Braille or Audio or to meet any other requirements needed.

Our considerations may lead to a conclusion that:

  • no human rights are engaged by the proposed action; or
  • human rights are engaged but any interference would be legitimate and proportionate and so the proposed action is lawful; or
  • the proposed action would be an unlawful interference of human rights – in which case the action should not be taken and other options considered.

Rights most likely to be engaged by investigations and regulatory casework

The human rights that are likely to be most relevant to the Commission’s investigatory work are as follows:

Article 8: right to respect for private and family life

  • Likely to be engaged where our investigations cause persons involved to suffer particular harm to their personal reputation, or where we are sharing information about individuals with third parties, especially other government departments.

Article 10: freedom of expression

  • May be engaged where we ask a trustee or charity to take action to disassociate themselves from action or particular organisations, for example, by not permitting members of certain organisations to speak at their events, or by support for an organisation or cause or amending the wording of its website.  

Article 11: freedom of association  

  • May be engaged where we remove a trustee or member from a charity, or where we require a person who wishes to continue as a charity trustee to sever links with other organisations that may bring the charity into disrepute.  

Article 14: prohibition of discrimination  

  • May be engaged in relation to any decision we make that engages another human right, where the individual or may be able to claim that we have treated them differently from others on certain grounds, such as race or religion.  

Article 1, Protocol 1: protection of property:  

  • May be engaged when we ‘freeze’ charity property, or direct charity property to be applied for a particular purpose, or vest properties in the Official Custodian, or remove an employee of a charity, or where our regulatory action may have a detrimental impact on a charity’s ability to raise funds.  

Each of the above rights is a ‘qualified right’, which means that interference by a public authority with that right will be permissible in certain limited circumstances. The circumstances vary according to which right is engaged but will generally require us to show that we have a legitimate aim in taking the action and that the action is proportionate to that aim. For the purposes of some human rights, our own statutory objectives, functions and powers may not be ‘legitimate aims’ in themselves, and so we may need to consider further how our action relates to other ‘legitimate aims’ specified in the Human Rights Act (e.g. the interests of national security, or the economic well-being of the country).  

lawyer_refer Where caseworkers have uncertainties or concerns about engagement of human rights or the proportionality of our action legal advice must be taken.

 

Rights less likely to be engaged by our investigations and regulatory casework  

There are other rights that are less likely to be engaged by our investigations casework, but may be relevant in exceptional cases, or may be raised by individuals affected by our decisions. It is therefore important to bear these human rights in mind in taking Compliance casework decisions. It can be as important to record that it is considered no human rights issues are engaged, particularly where a decision is being taken to exercise regulatory powers.

Article 3:  the right not to be subject to torture or inhuman or degrading treatment.

This will be violated by a public body where its action (or inaction) leads to a person suffering bodily injury, or intense physical and mental suffering, or humiliation of a degree sufficient to break moral or physical resistance. Given the high threshold of the ill treatment required, Article 3 is not highly likely to be engaged by the Commission’s decision-making and regulatory action, but investigators should be alert to any possibility that a Commission decision may put a person’s physical safety at risk (for example, a decision to disclose or publish information about a person).

Article 6: right to a fair trial.

We may receive allegations that Article 6 rights have been infringed by our decision-making, for example where we decide to exercise our regulatory powers without first notifying persons affected, or where we make findings with which affected persons do not agree, or on the basis of evidence that they have not seen in full. However it is unlikely that Article 6 extends to decisions taken by the Commission during a statutory Inquiry. The duties Article 6 imposes apply only to proceedings which concern ‘the determination of civil rights and obligations, or any criminal charge’. It is unlikely that the use by the Commission of our regulatory powers will involve a determination in itself of any person’s civil rights or criminal liability. In any event the courts have held that there is no breach of Article 6 where proceedings are subject to oversight by an effective judicial body. This is supplied in relation to many of the Commission’s decisions by the First Tier Tribunal.

Nevertheless, the fact that Article 6 rights are not likely to be engaged in relation to the Commission’s investigatory casework should not prevent the Commission, as a matter of due process, keeping affected persons informed, and providing them with appropriate opportunity to respond to concerns raised in the investigation and provide evidence, or to challenge decisions that the Commission has made in the course of the case, where relevant.  

Article 8: right to respect for private life.

We may receive allegations that a person's Article 8 rights have been infringed by decisions taken by the Commission specifically on the basis that they interfere with a charity trustee’s ability to administer the trust (for example a decision to suspend / remove a trustee, or to appoint an interim manager). Our view is that Article 8 is not usually engaged, as the role of charity trustee is an ostensibly public duty, not a private one; and it is therefore hard to see how a decision by the Commission that prevents a charity trustee taking action in relation to the charity can have interfered with the trustee’s private life.

However, 

  • this point has not been tested in the courts; and
  • it is possible that suspending or removing a trustee may have consequences in a particular case for his or her personal life that does engage Article 8.

Article 9: freedom of thought, conscience and religion.

We may receive allegations that Article 9 rights are infringed by the Commission’s decision-making, for example where we are engaged with a charity whose purpose is the advancement of religion, and it is perceived that our actions in some way obstruct the trustees’ administration of the charity. As regards the practice of religion, each case must be considered on its individual facts. However it does seem unlikely that a decision by the Commission will act to prevent individuals from manifesting their belief or religion.

Actions we take where human rights issues may be engaged

The list below highlights which articles may be particularly relevant on the decisions we take as part of investigatory work. This list is not exhaustive.

Articles 8, and Article 1 Protocol 1

s.46(1) – opening a statutory inquiry/ requesting information.

s.47(2) – direction to provide documents or evidence.

s.52 – an Order to provide documents;

s.76(3)(c) – vesting property in the Official Custodian;

s.76(3)(d) – ‘freezing’ Order;

s.76(3)(e) – Order to a debtor not to make payments to the charity;

s.76(3)(f) – Order to restrict transactions entered into by the charity;

s.79(1)&(2) – scheme for the administration of the charity;

s.85 – Order to direct application of charity property;

s.48 & 49 – entry of premises and seizure of documents.

s.76(3)(g)– appointment of an Interim Manager; and/or

s.83 – suspension or removal from membership of charity

Articles 8, 10, 11 and Article 1 Protocol 1

s. 84– Order directing action for the protection of charity

Article 11 and Article 1 Protocol 1

s.111 – determination of membership of charity.

Articles 9 and 14

Decisions impacting on a charity advancing religion.

Articles 10 and 11

Decisions relating to cases involving inappropriate links with organisations (eg political parties, proscribed organisations)

Article 14

Any of the above decisions.

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