n extraordinary one day court hearing yesterday is still to decide whether the Charity Commission can bring a judicial review against the Parliamentary Ombudsman for exceeding her powers in two cases involving safeguarding of children and adults involving two separate charities.

Both cases were dramatically accelerated last year when the Speaker, Sir Lindsay Hoyle, gave permission for Parliament to report the Charity Commission to the Committee of Privileges for trying to stop two reports by the Parliamentary Ombudsman being published until the courts decided what the legal position of the two bodies were in the handling of the cases. The Committee of Privileges is still considering the report on the matter more than six months after the referral.

Yesterday’s hearing allowed both sides to present arguments in what could be a landmark judgement on how far the Parliamentary Ombudsman can rule on action taken by charities to safeguard people and whether the Charity Commission is a regulatory body with no powers to compel charities to investigate cases which fall short of a police action.

The two cases were both dramatic and involved both historic child sexual abuse and a much more recent serious sexual assault. The first case became public when the complainant,Damian Murray contacted this blog and revealed a long standing cover up of historic child sexual abuse by a paedophile principal at a now closed religious school in Blackburn. You can read the story here.

The second case involved a complaint against another charity of a serious sexual assault on a vulnerable woman volunteer by the chair of the charity who entered into an inappropriate relationship with her.

Both complaints were upheld by the PHSO and compensation was paid. The dispute arises over whether the Charity Commission should have gone much further to remedy this and investigated both situations. This included whether the second charity should have been wound up and whether the religious foundation which ran the school should have been further investigated despite in both cases there were no police investigations.

The Charity Commission is saying the Parliamentary Ombudsman is exceeding her powers by demanding this. The Commission told the court that the body is a regulatory body and does not have the resources to do this and furthermore would put charities across the country in double jeopardy as they would be obliged to investigate cases where the police and the Crown Prosecution Service had decided that criminal proceedings had little chance of success.

In the argument before Judge Fordman the Commission said; “the PHSO’s decision in effect requires the Commission to carry out a quasi-criminal investigation in circumstances where the Commission does not consider it appropriate to do so, and where other relevant criminal and safeguarding agencies have investigated but not pursued a prosecution. This fundamentally misunderstands the nature of the Commission’s role, as well as its own legitimate policy as to how its resources should be deployed.”

The PHSO in its submission to the judge asked him to throw out the case. It argued that the judicial review was academic because the two reports had already been published and the Commission’s case was inarguable as it was irrational to say the case had been remedied and the ombudsman had wide discretion involving her findings. Finally it argued that the hearing interfered with the proceedings of Parliament.

A spokesperson from the Charity Commission said:
“We acknowledge that the two complaints which led to our legal disagreement with the Ombudsman arose from some very difficult personal experiences, as was heard in court. We have long accepted that there are important lessons for the Commission to learn from the two cases in question and we have previously apologised to both complainants.

“However, at the heart of this case are vital principles about citizens’ right to due process when accused of a criminal offence, and separately avoiding charities being subject to undue overlapping regulation.

“First, the Ombudsman has told the Commission that we should assess the credibility of serious criminal allegations made against charity trustees where those allegations have already been investigated and not taken further by the police and other appropriate authorities. This runs contrary to long standing legal principles designed to ensure fairness to all.

“Second, the Ombudsman has gone beyond its legal remit by effectively second guessing our regulatory decisions. If left unchallenged, charities would in effect be subject to two overlapping regulators, creating confusion and uncertainty for them and the public.

“We have worked hard, over a lengthy period of time, to resolve these matters with the Ombudsman directly, but this has regrettably not proven possible. While we have pursued this legal action reluctantly, we are glad of the opportunity to present our case and seek the clarity of the courts in resolving this issue for the benefit of both organisations, the charitable sector, and the public we serve.”