First-Tier Tribunal rules that Mermaids did not have standing to appeal Charity Commission’s registration of LGB Alliance

Written by Helena Ifeka

Image of Akua Reindorf

Background

All references in square brackets are to the judgment [Mermaids v (1) Charity Commission (2) LGB Alliance].

1. On 13 March 2020 LGB Alliance (“LGBA”) applied to the Charity Commission of England and Wales (the “Commission”) to be registered as a charity. The Commission’s wheels grind slowly: over one year later, on 20 April 2021, the Commission decided to register it.[1] Shortly thereafter, on 1 June 2021, Mermaids, a registered charity, appealed that decision.

2. In September and November 2022 the First-tier Tribunal (General Regulatory Chamber) Charity (the “Tribunal”) heard the full merits hearing. There were two issues in the appeal: firstly, whether Mermaids had standing to bring the appeal; and secondly, if it did, whether LGBA was a charity as defined in the Charities Act 2011 (“CA 2011”) [13].

3. On 6 July 2023, in a decision handed down by Griffin J, the Tribunal dismissed the appeal, finding that Mermaids did not have standing to appeal. 

The Parties

4. The Appellant, Mermaids, describes itself as “one of the UK’s leading LGBTQ+ charities” which “supports transgender, nonbinary and gender-diverse children and young people until their 20th birthday, as well as their families and professionals involved in their care.”
5. The First Respondent, the Commission, registers and regulates charities in England and Wales.
6. The Second Respondent, LGBA, describes its mission as advancing the rights and interests of lesbians, gay men and bisexuals. This includes promoting freedom of speech and informed dialogue on lesbian, gay and bisexual issues and protecting “children who may grow up to be lesbian, gay or bisexual… from harmful, unscientific ideologies that may lead them to believe either their personality or their body is in need of changing.”

The Appeal

The first issue: standing to appeal

7. To appeal the Commission’s decision, Mermaids had to establish that it was “any other person who is or may be affected by the decision” (pursuant to section 319(2)(b) and the corresponding entry in column 2 of Schedule 6 of the CA 2011).
8. All parties agreed that the Tribunal was bound by the Upper Tribunal’s decision Nicholson v Charity Commission [2016] UKUT 0198 (TCC) (“Nicholson 1”). From this judgment the Tribunal identified the following applicable principles:

1. The category of “any other person who is or may be affected by the decision” is not closed and must be construed by the specific circumstances of the case [34(a)-(b)]. In principle those circumstances may include perceived risks of financial loss and reputational damage [38] (applying McKenna J’s comments in Colman v Charity Commission CA/2014/0001 and CA/2014/0002).
2. To be a person who is or has been affected, “the person’s legal rights must have been impinged, altered or affected by the Commission’s decision” [34(d); Nicholson 1 at §44].
3. To be a person who may be affected, “there must be an identifiable impact on the person’s legal rights which is likely to occur.” Mere disagreement with the Commission’s decision, and feeling emotionally or socially affected by it, is insufficient [34(e); Nicholson 1 at §47].

9. In short, to have standing to appeal the Commission’s decision, Mermaids needed to establish on the balance of probabilities:

1. That its legal rights had been impinged, altered or affected and that there was a causal connection between the Commission’s decision to register LGBA and the impingement of those legal rights; or
2. That there was an identifiable impact on its legal rights which was likely to occur.

10. The Tribunal’s approach was therefore to identify the ways in which Mermaids said that it had been affected by the decision to register LGBA as a charity [44].
11. Mermaids argued that following the registration LGBA made false claims about it which interfered significantly with its charitable work and risked damaging its reputation and funding [65-66]. Mermaids also argued that Nicholson 1, which concerned a decision made under section 34 of the 2011 Act, was of limited application because there were different glosses on the statutory tests for sections 30 and 34 of the 2011 Act, and this case concerned a decision made under section 30.
12. The Tribunal wasted little ink in demolishing these submissions. Griffin J pithily observed that charitable status does not guarantee a charity funding nor spare it from criticism. Moreover, it is not the Commission’s function “to tell people what to think, or to regulate public debate in a context where there are deeply held, sincere, beliefs on all sides” [66]. Nor was there a causal connection between the Commission’s decision to register LGBA and LGBA’s purported interference in Mermaids’ work. In fact, the evidence was that between March and December 2020, well before the registration decision, LGBA was already using mainstream and social media to promote its views and to challenge Mermaids. Causation was not made out [50, 71].
13. Finally, the Tribunal was unpersuaded by Mermaids’ attempts to distinguish Nicholson 1, holding that Parliament intended there should be a single statutory test applicable to appeals against decisions made under sections 30 and 34 of the 2011 Act [59-62].
14. The Tribunal concluded that Mermaids had not demonstrated on the balance of probabilities that the registration decision had impinged its legal rights or that there was an identifiable impact on its legal rights which was likely to occur. Consequently, Mermaids did not have standing to appeal the registration decision.

The second issue: whether LGBA was a charity

15. The first issue determined the outcome of the hearing: if a party has no standing to appeal, the appeal cannot proceed. The Tribunal therefore declined to “set out its hypothetical conclusion on the second issue… on whether, if Mermaids does have standing, LGBA is a charity within the meaning of the 2011 Act” [15].
16. Interestingly, the Tribunal also declined to set out its hypothetical conclusions because “the two members of the panel hearing this appeal have been unable to reach agreement” on the second issue [15]. The Tribunal has a mechanism to resolve lack of unanimity if it concerns an actual decision which must be made. That mechanism does not extend to resolving lack of unanimity about a hypothetical matter which does not need to be decided. We do not know why, in an imaginary alternate universe in which the Tribunal found that Mermaids did have standing, one judge was uncertain that LGBA was a charity within the meaning of the 2011 Act. That will remain a puzzle for punters to ponder online.

Conclusion

17. The key points from this decision can be summarised as follows:

1. Firstly, the Tribunal has unequivocally upheld the protection afforded by Article 10 ECHR, holding that freedom of thought and expression is an essential condition of an intellectually healthy society and that this protection extends to charities as well as to individuals [67-70].
2. Secondly, just as an individual does not have a legal right to prevent someone who disagrees with them from expressing themselves, neither does a charity have a legal right to prevent another charity from expressing different protected beliefs with which it disagrees [72].
3. Thirdly, a charity does not have a legal right to funding, donations, or access to grant-holding bodies. Nor does it have a legal right to prevent another charity from seeking to persuade donors that it is undeserving of public money [73-74].

[1] LGB Alliance - Full decision - GOV.UK (www.gov.uk)

[2] About Mermaids - Mermaids (mermaidsuk.org.uk)

[3] Policies - LGB Alliance UK

[4] See footnote 1 in the judgment, which refers to the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) order 2008, Article 8.

[5] See R (Animal Defenders International) v DCMS [2008] UKHL 15, per Lord Bingham of Cornhill, and Miller v The College of Policing [2021] EWCA Civ 1926, per Sharp P.

Akua Reindorf KC appeared with Karon Monaghan KC for LGB Alliance, instructed by Doyle Clayton.