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| The law |
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Refer to an accountant |
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1. Key features of Article 6 |
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The full text of Article 6 is set out in OG 71 A2. It ensures that, in the determination of any civil right or obligation a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. |
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This is a key feature of a democratic society and includes:
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Access to a court or tribunal |
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This allows people to challenge decisions taken by a public authority whose procedures fail to satisfy Article 6. However, the whole process needs to be considered. If the original decision is taken by a public authority whose procedures do not satisfy Article 6, the requirement may nevertheless be met if that decision can be reviewed (in the form of an appeal on both facts and law) by a court or tribunal that does satisfy Article 6. If the conditions of Article 6 are met by the original decision, it is not necessary to provide for an appeal. But if they are not met by the original decision then an appeal process that does meet those conditions may be necessary to ensure that the whole process (taking into account the appeals processes) is compliant. |
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The right to a court or tribunal is not absolute, but restrictions on it must not impair the essence of the right. For example, the system should not be set up in such a way as to prevent access to a court or tribunal, by creating inadequate time limits or not providing for the giving of notice of decisions. However, the European Court of Human Rights has accepted that some people can be restricted from bringing cases, ie prisoners, litigants who keep bringing cases without merit, bankrupts, minors, people who are not within a time-limit or limitation period for bringing a case and other people where there is a legitimate interest in restricting their rights of access to a court, provided that the limitation is not more restrictive than necessary. |
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Access to a court might include access to the financial means to bring a case to court. Article 6 does not give an absolute right to legal aid in all civil cases where the person concerned cannot afford to bring proceedings. Legal aid in civil cases is only required by Article 6 where either the person cannot present the case themselves due to the complexity of the court proceedings and the law or where legal representation is compulsory. |
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A fair hearing |
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The requirement of ‘fairness’ is fundamental. There must be an equal and reasonable opportunity for all parties to present a case. There should be equality of arms ie one party should not be placed at a procedural disadvantage over the other. |
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A public hearing |
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The right to a public hearing protects against the administration of justice in secret and without public scrutiny. That said, it is possible in certain cases to dispense with an oral hearing (where the subject matter is of a particularly technical nature for example). It is also possible to exclude the public from the hearing (though not the judgement) where this can be justified. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of: |
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- public order or national security in a democratic society;
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- protection of the private life of the parties; and
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- where, in the opinion of the court publicity would prejudice the interests of justice.
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A hearing within a reasonable time |
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A breach may arise if a public authority fails to organise its system so as to avoid delays, for example, by providing inadequate staff and resources to hear cases in a reasonable time. |
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An independent and impartial tribunal |
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Judges or tribunal members must be free from outside pressures, and should be independent of the executive and of the parties. Impartiality is another important element of ‘fairness’. The decision-makers therefore need to show that they are free of any prejudice or bias. |
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These are wide ranging and highly developed rights which cover all criminal and civil cases as well as cases heard by tribunals and some internal hearings or regulatory procedures. |
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Anyone who has his civil rights determined or is facing a criminal charge is entitled to these rights. |
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Anyone charged with a criminal offence has certain other rights, including the right to be presumed innocent until proven guilty and the right to be given adequate time and facilities to prepare their defence. |
 
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2. Judicial Review |
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Following the implementation of the Human Rights Act the way public authorities exercise their discretion may change. At the moment a decision may be judicially reviewed. In that process, the court considers whether the decision was reasonable ie a decision must not be so unreasonable that no reasonable decision-maker could have come to it. The Strasbourg Court imposes a different and in some cases a tougher test. It is expected that the UK courts will also look more closely at the merits of a decision when ruling on a decision’s compatibility with the Convention. The courts may take a much more rigorous approach to fact-finding, evidence and discovery on applications for judicial review. Decision-makers will be required to justify interferences and the courts will have to examine the justification more closely. |
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Ministers (and other public authorities) will therefore be required to justify decisions, policy or law to a greater extent. Public authorities may be required to set out in detail the facts and reasons supporting a decision, policy or law. It will be important to show the court that they have considered the Convention rights and how they have dealt with any issues arising out of such a consideration. |
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The Human Rights Act may also allow cases to be brought before the courts where they could not be brought before. For example, decisions regarding the priority given to one initiative over another may not be susceptible to judicial review at the moment, but may become so under the Human Rights Act - for example, whether to fund hospital treatment. In relation to medical treatment, the courts have already shown a willingness to depart from such a strict rule. |
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A revised edition of the guide "Judge Over Your Shoulder" (about judicial review) taking account of the Convention and the Human Rights Act, will give a more in depth guide to the exercise of discretion before and after the coming into force of the Human Rights Act. |
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3. How Article 6 affects the Charity Commission |
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Article 6 does not just apply to Court proceedings. As a public authority we must act compatibly with the principles of Article 6. |
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The Human Rights Act allows people to challenge decisions taken by a public authority whose procedures fail to satisfy Article 6. |
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This has implications for our work when we: |
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- make decisions that may affect civil rights (such as the right to be a trustee);
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- gather evidence on case files;
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- express unsubstantiated opinions.
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Our procedures must satisfy the criteria set out in Article 6 in so far as it is possible for them to do so. To comply with Article 6 it is not necessary for each stage of the decision-making process to meet every requirement of that Article provided the process as a whole (including the involvement of the courts for example) complies. Many of our decisions can be reviewed by the courts which enables most of our decision-making processes to comply. But it would not be acceptable to simply rely upon reviews of our decisions by the courts to make our decision-making processes compliant and then allow those processes to fall a long way short of the requirements of Article 6. Whilst it is neither possible nor necessary for each stage of our decision-making processes to comply with the letter of Article 6, we should act in accordance with the spirit of that Article at all stages in so far as it is possible to do so. |
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4. Complying with Article 6 |
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Article 6 has implications for us in a number of different contexts (but especially when making decisions that deny someone something or which are likely to be unpopular). |
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The structure of the Commission is such that we are not set up as, nor were we intended to be, an independent and impartial tribunal. The Charities Act 1993 sets out the powers of the Commissioners. Members of staff with authority to act as assistant commissioners can exercise those powers on behalf of the Commissioners. This means that, when taking decisions, members of staff are acting on behalf of the Commissioners under specific powers delegated to them. Consequently, it could not be said that any review by Commissioners of actions taken by assistant commissioners is "independent". However, the Commissioners can override decisions taken in their name by substituting their own personal decision. The framework for this internal review process is contained in the procedures for handling complaints and requests for a review of a decision as set out in our guidance. The principles of Article 6 are reflected in that guidance. |
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The Charities Act 1993 also provides opportunities for most decisions of the Commissioners (which includes decisions taken on their behalf by assistant commissioners) to be challenged in the courts. An appeal to the court often does not involve the Charity Commission as a party but, in effect, gives the court an opportunity to hear and assess the evidence presented by the complainant in litigation with the Attorney General, thereby enabling the court where appropriate to substitute its judgement for the Commission’s. The "fairness" of this process is enhanced by the fact that the court will not be hearing argument directly on the Commission’s behalf seeking to justify our decision. Where the courts make their own assessment based on the facts and the law then the courts, through their own procedures, will be compliant with Article 6. This will be sufficient for the whole process to comply with Article 6. |
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5. Model Rules for Decision Making |
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Recognising that it will not be possible, in view of the legal restraints imposed by statute on the structure and powers of the Commission, nor is it necessary for us to meet every requirement of Article 6 at each stage of a decision-making process, it is nevertheless essential that we ensure that the principles of fairness and impartiality, natural justice and timeliness permeate all that we do. The following guidance therefore sets out some model rules which should be routinely followed when making decisions. |
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The model rules for decision making are as follows: |
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- All decisions and decision making processes should be open, fair, timely and impartial.
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- Decisions should be communicated in a way that will not overawe or confuse the recipient.
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- We should, wherever possible, clearly tell those dealing with us what are our procedures.
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- Where it is appropriate to do so, we should advise those that will be affected by a proposed decision of the substance of it, including:
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- what are the grounds for the decision;
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- what other matters we have taken into account in reaching the proposed decision;
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- inviting them if they wish (within a period of not less than 21 days) to give reasons in writing (or orally if that is more suitable) as to why the decision should not be made and explain to them what procedure will then be followed if they do;
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- When taking or reviewing any decision (particularly one that adversely affects the rights, liberties or interests of an individual) we should wherever possible:
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- Give all parties a reasonable opportunity to present their case, ensuring that one party is not allowed a substantial advantage compared with another. This includes allowing all parties to be represented and for matters to be conducted by correspondence (and where necessary meetings) involving representation. If anyone requests an oral hearing this can be provided by a suitable meeting. (It is not necessary for the procedure for such meetings to seek to parallel that which occurs in a court or tribunal.)
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- Ensure that the decision is, and can be seen to be, free from personal prejudice or bias. This includes making sure that casefiles or other records demonstrate a clear trail of the decision making process and never expressing biased or unsubstantiated opinions.
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- Provide a written copy of our decision and the reasons for it.
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- Tell the person(s) affected, in writing, what action they can take if they wish to challenge our decision, and what information and material they need to provide to support such a challenge, as well as the time limits involved. We should also explain that our internal review procedures are administrative reviews and that if the individual remains dissatisfied after the review process has been completed through its various stages they will have a right of appeal to the courts.
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