Why should the attorney general be able to stop the Charity Commission trying to clarify the law? And why did Suella Braverman’s office block a challenge involving the Royal Albert Hall?
Construction of the iconic London venue in the 1860s was funded by the sale of seats. These seats can be freely traded and more than a quarter remain in private ownership. If you own a seat, you can watch whatever performance is taking place unless the hall has been hired on an exclusive basis. If you don’t fancy two sold-out nights of Eric Clapton next month you can donate your tickets to charity, send them back to the box office for sale at face value (less a commission) or sell them on the open market for whatever they will fetch: this week, Viagogo were offering front-row Clapton seats for £4,356.
The hall is a charity, run by an elected council of 23 trustees and a president. Five trustees are nominated by outside institutions and the remaining 19 must be seat-holders. Could that give rise to a conflict of interest? Might trustees be encouraging sell-out shows in order to maximise returns on their investments?
The hall’s highly detailed conflict-of-interest policy tells trustees they must subordinate their private interests to those of the charity and act in the best interests of the hall. They are unpaid and there is no suggestion that any trustee has behaved improperly. Seat-holders pay an annual fee and are funders of last resort: they spent extra to keep the hall ticking over during the pandemic.
Even so, argues the Charity Commission, it would be better if seat-holders could not command a majority on the council. For some years now, the regulator has been urging the hall to change its constitution. The hall strongly disagrees and has described this as ‘regulatory overreach’.
Could the commission force the hall to introduce reforms? That’s not clear. So the commission sought an authoritative decision. Section 325 of the Charities Act 2011 allows it to seek a judicial ruling on its functions, or on the law, from the First-tier Tribunal (Charity).
But that can happen only with the attorney general’s consent. In 2017, the commission asked the then attorney, Jeremy Wright QC, for permission to refer the governance of the hall to the tribunal. Wright granted permission in early 2018, only to change his mind shortly afterwards when the hall threatened judicial review. Later that year, the commission asked again. Nothing more was heard until last September, when it emerged that permission had been refused. The only reason given was that this ‘was not in the public interest’.
There are good reasons for requiring the attorney’s consent before launching particularly sensitive criminal prosecutions. But why should a law officer be able to regulate a regulator?
When parliament passed the Charities Act 2006, it required the government to set up a review of the act within five years. Lord Hodgson of Astley Abbotts CBE, a former Conservative MP, conducted the review and reported in 2012. To make it harder for the rich and powerful to lobby the attorney, he recommended that the commission should be given power to make references to the tribunal without asking for permission. The attorney would still have to be notified and could be joined as a party to the case.
The government referred Hodgson’s recommendation to the Law Commission, which supported it in 2017. But the government rejected its advisers’ recommendation last year, arguing that the restriction helped the attorney general to protect charitable interests.
Hodgson tried to introduce the Law Commission’s recommended changes when charity reforms were debated in the Lords last year. The government made sure his amendment was defeated before the Charities Act 2022 became law. A minister asserted that the attorney had ‘a unique perspective and is able to take into account considerations of societal issues and the wider repercussions for charities’. The attorney’s oversight ‘also provides a second pair of eyes in ensuring that the costs associated with such a referral are not put on charities or on the public unnecessarily’.
But the current law ‘risks gravely weakening the Charity Commission’s authority’, Hodgson told me this week. It took successive law officers nearly four years to decide not to refer the Royal Albert Hall case to the tribunal. ‘This is a profoundly regrettable outcome in every sense,’ he said, ‘not least that the underlying issue remains unresolved.’
I take no position on running a concert hall. But I do question whether a law officer should be allowed to block access to the courts. As the first attorney to have a ministerial special adviser of her own, Braverman is more political than her predecessors. The argument that she has a ‘unique perspective’ – denied to other members of the government – is looking increasingly threadbare.
joshua@rozenberg.net
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