The right to fund unpopular causes is at the heart of a key case heard in the high court on Wednesday, in a legal battle that pits controversial campaigners Cage against the charity regulator.
Lawyers for the high-profile lobby group Cage, which campaigns on behalf of people accused of terrorism, will claim that the Charity Commission exceeded its remit in seeking – and getting – assurances from Cage’s charity backers that they would not continue to fund its work.
Cage is arguing the commission overstepped its powers by asking two charities – the Joseph Rowntree Charitable Trust (JRCT) and the Roddick Foundation – to pledge never to give Cage money again.
The regulator, which oversees the UK’s 170,000 charities, said it acted following the public outcry when Cage suggested Mohammed Emwazi, believed to be an Islamic State executioner, had been radicalised in part by Britain’s intelligence services.
The case was allowed after a ruling earlier this year when high court judges accepted the commission should face a judicial review of its decision. Such is the importance of the case, which could have major ramifications for Britain’s charities, that it will be heard by the Lord Chief Justice.
Although the JRCT had serious doubts over the legality of the regulator’s actions, it had acceded to the regulator’s request because of “intense regulatory pressure”.
However, the charity, which has assets of £180m, applied to join the case as an interested party and was given permission by the courts. It now contends the way the commission went about its “robust action” was unlawful.
The Charity Commission denies that it acted outside of the law. Instead, the regulator argues that the assurances from the charities were required as necessary as it was responding to “public anger and concern” over Cage’s statements.
According to the commission, JRCT confirmed it made grant awards to Cage of £305,000 between 2007 and 2014, of which £271,250 was paid. The Roddick Foundation made grant payments of £120,000 between 2009 and 2012.
The commission said Roddick responded within 24 hours and immediately agreed to cease funding Cage. JRCT gave similar assurances a few days later.
“We secured assurances that [the charities] were not funding Cage and in the current circumstances had no future intention of doing so. Our aim in doing so was to protect the public trust and confidence in charity and ensure the trustees of the charities concerned were complying with their legal duties towards their charity.”
After securing the promises never again to fund Cage from the donors, William Shawcross, the Charity Commission chair, said in a speech it was for the commission to decide what was “in the public interest”, as well as what might damage public trust and confidence in charities.
Many experts have been concerned about the regulator’s new role – with Stephen Bubb, the outspoken head of Acevo (Association of Chief Executives of Voluntary Organisations), the charities chief executives’ body, claiming that it was “not the job of the regulator” to interpret what was in the public interest.
In comments to Third Sector, the trade magazine, he said: “There’s a big difference between ensuring charities work for the public benefit and stretching that to interpret what’s in the public interest. We could end up with a situation where the only causes that attract support are those that find favour with the Daily Mail.”