OG95 B4 - THE CHARITY TRIBUNAL

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OPERATIONAL GUIDANCE

THE CHARITY TRIBUNAL

REFERENCE PROCEDURE

OG 95 B4 – 18 March 2008

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Contents

1. Who can request a reference?
2. Preliminary steps before the Commission makes a reference
3. Reference procedure

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1. Who can request a reference?
	What the law says
	Under S.2A(4)(b) of the Charities Act 1993 as amended by the Charities Act 2006, the Attorney General or the Charity Commission with the permission of the Attorney General, may make a reference to the Charity Tribunal.
	Either organisation may refer to the Tribunal a question which involves the operation of charity law in any respect or the application of charity law to a particular state of affairs.
	In addition the Commission may refer a question which has arisen in connection with the exercise of any of its functions.

2. Preliminary steps before the Commission makes a reference
	2.1 Deciding whether to make a reference 2.2 Permission from the Attorney General

	2.1 Deciding whether to make a reference
	In practice
	Having the ability to make references to the Tribunal will provide the Commission with a way to deal with test cases and should provide clarity about the operation of charity law. References will help the Commission to deal with:
	A point of law that has wider implications for charity;
	A point of public interest;
	A technical difficulty or complexity; or
	Where the law is highly contentious.
	The Commission may identify the need for a reference as a result of work on a specific case, group of cases or through wider policy work which highlights themes or concerns in the sector, about the operation of charity law.
	Each Executive Director is responsible for presenting requests to initiate references from within their Directorate, to the Director’s Group.
	The DRT Team should be consulted about any proposed references prior to the Director’s Group meeting in question, so that they can identify any links with other decision review or Tribunal cases.
	If the Director’s Group agrees the proposal to initiate a reference, this will also need Board approval, because any reference could have an important impact on the development of charity law.

	2.2 Permission from the Attorney General
	Summary of the law
	The Commission may only make a reference with the consent of the Attorney General.
	In practice
	If the Commission’s Board agrees that a reference may be made, the DRT Team should send information about the proposed reference to the Attorney General’s office and schedule a meeting to discuss this with the Attorney General’s office and to seek written consent to proceed.

3. Reference procedure
	3.1 Notice of reference 3.2 Respondent’s notice 3.3 Other procedures for reference

	3.1 Notice of reference
	What the law says
	The organisation, making a reference is called the "referrer". Only the Commission or the Attorney General can be the "referrer". The referrer must submit a notice of reference. Rule 38 sets out what must be included. A template for references from the Commission is included as OG 95 C3.
	When the Tribunal receives such a notice from the Commission (when the Commission is the referrer) it will notify the Attorney General that the reference has been made and inform them that they have 28 days within which to inform the Tribunal whether they wish to be a party (referred to as a "respondent").
	Similarly if the Attorney General is the referrer, the Tribunal will notify the Commission that the reference has been made and the Commission will have 28 days within which to inform the Tribunal whether we wish to be a respondent.
	The Tribunal will also publish details of the reference on its website. This will include information about how a person likely to be affected can request to be a respondent to the reference. The Tribunal will consider the requests it receives and decide who the respondents are.
	The Tribunal will then send a copy of the reference notice and supporting documents to all respondents. Rule 10 in relation to sending of notices, applies to references. It sets out the requirements about the format, method and period in which documents may be sent. This includes placing a requirement on a party, which intends to send a document by document exchange, fax or email, to first obtain agreement to this in writing from the other party in line with Rule 10(2). This applies to sending the notice of reference, the respondent’s notice and all other documents covered in the Rules.
	In practice
	Where the Commission is the referrer, the DRT Team is responsible for preparing the notice of reference, ensuring it takes account of any points raised by the Board and seeking advice from policy staff, case workers and lawyers as appropriate.
	A designated lawyer for the case should be identified and they will be responsible for agreeing the notice before it is sent.
	Where the Attorney General is the referrer, the DRT Team will receive a notification from the Tribunal that the reference is taking place. It is responsible for determining whether the Commission should be a respondent and agreeing this with the Heads of Legal Services before responding within the required 28 day period.
	As mentioned above, the DRT Team may need to liaise with the other parties, in relation to how they are prepared to receive documents.

	3.2 Respondent’s notice
	What the law says
	Under Rule 39 every respondent must file a respondent’s notice within 28 days of receiving a copy of the notice of reference. The respondent’s notice must be accompanied by a list of authorities and any other supporting documents relied on in support of their case. They may also include a request for directions. A template for the respondent’s notice, to be used where the Commission is the respondent is included in OG 95 C4.
	The respondent must send a copy of the notice and supporting documents to the referrer and any other respondents when filing these documents with the Tribunal.
	In practice
	Where the Commission is a respondent, the DRT Team is responsible for preparing the respondent’s notice in line with OG 95 C4. They will ensure that it takes account of any points raised by the Board and will seek advice from policy staff, case workers and lawyers as appropriate.
	The DRT Team will receive a copy of each of the (other) respondent’s notices.

	3.3 Other procedures for references
	What the law says
	Rule 40 applies a number of the Rules in relation to the procedure for appeals and applications to references. However the Tribunal is also likely to issue specific directions about the procedure for each reference.
	In practice
	As the reference procedure is novel, it is likely that the DRT Team will need to seek advice from the Heads of Legal Services on an ad hoc basis. They will make decisions, escalating these as necessary to the Directors Group.

Index to further related information