Barbara Rich is a barrister and tweets on legal issues.
During the autumn of 2022, over 200 people joined by video link to observe the hearing of evidence and legal argument in Mermaids v. (1) The Charity Commission for England and Wales and (2) LGB Alliance. Judgment in the case was published and made headlines last week. Public interest flowed from seeing the case as a front in the “gender wars” between proponents and opponents of a range of beliefs about sex and gender identity.
Mermaids, a charity established in 1995 with the purpose of “relieving the mental and emotional stress of children and young people under 19, and their families, affected by gender identity issues, and advancing public education in these issues”, appealed against the Charity Commission’s April 2021 decision to register as a charity the LGB Alliance, an organisation formed in 2019 “to promote equality and diversity in respect of lesbian, gay and bisexual people” according to its registered objects.
Its founders were two lesbians with a long history in rights campaigning and whose public statements about the application for charitable status expressed a clear intention to “challenge the dominance of those who promote the damaging theory of gender identity”. But as the two judges who decided the case explained, it was not about the gender wars, but the law of charities.
Charity law is agnostic between opposing beliefs. The ultimate issue was whether LGBA should be registered as a charity. That requires being an organisation established for purposes that are charitable in English law, and with sufficient public benefit.
But that question, involving a full merits reconsideration of the Charity Commission’s decision, could only be decided if Mermaids met the threshold of eligibility to ask the judges to do so.
This is “standing”. It is not, as Mermaids has consistently described it, a “technicality”, but an important element in a scheme created by Act of Parliament.
The Attorney General, whose role (irrespective of politics) includes representing the public interest in charity, has an unlimited right to appeal a Charity Commission decision. But a private individual or organisation does not, unless it is or may be “affected” by the Charity Commission’s decision in some meaningful way that an ordinary member of the public is not.
In the few previous cases, culminating in a decision of a High Court judge in 2016, “affected” has been interpreted narrowly to mean that there must actually or potentially be a direct effect on a person or organisation’s legal rights arising from the Charity Commission’s decision. Mermaids accepted that the tribunal had to use this narrow interpretation.
It is no great surprise that Mermaids failed this test. Its arguments that LGBA lobbied against Mermaids and potentially prevented it from receiving funding were insufficient to qualify, and the judges emphasised that “charitable status does not come with any guarantees of funding nor any freedom from criticism or debate.”
Standing is the only issue the tribunal decided. In December 2021 a judge had directed that evidence and legal argument on both standing and the full merits review of the Charity Commission’s decision should be heard together. This led to the rather unsatisfactory outcome of deciding on standing, but going no further than to state that the two judges had been unable to agree on whether, if Mermaids had standing, LGBA was a charity.
If they had had to decide this issue, the senior of the two judges would have had a casting vote. But as they did not have to decide it, they declared that it would be inappropriate for them to set out individual reasons on a hypothetical issue.
With hindsight, the December 2021 ruling appears mistaken. Time and costs would have been saved by deciding standing as a preliminary issue, and it would have avoided speculation by Mermaids that if it had succeeded on standing, it might have succeeded on the question of LGBA’s charitable status, and won its case. This is a big “if”.
Mermaids argued persuasively in December 2021 that both issues should be heard together as the evidence on both was intertwined. The thrust of its case was that LGBA’s “true” purpose as a charity was to attack Mermaids, and its argument in part depended on persuading the tribunal to look at a wider range of materials than its formal governing document, the conventional sole or primary source, to interpret what LGBA’s “true” purpose was.
It would be interesting to know what the judges made of these arguments. It is possible that their disagreement about LGBA’s charitable status was about whether its purposes were too political for it to qualify as a charity. But it is an exaggeration to say that this “puts a huge question mark over LGBA’s status”.
It remains a registered charity, and the same test of standing would face any attempt to de-register it. Registration has already been effective to control its social media activity, which was criticised as having given rise to well-founded pre-registration concerns of having gone beyond the boundaries of civilised debate, and may continue to operate in Mermaids’ or the public interest in the same way.
What next? How far is Mermaids being pursued as a test case on standing? On 26 November 2019, two days before LGBA was even registered as a company, Jolyon Maugham, Executive Director of the Good Law Project (“the GLP”) tweeted: “I did spend some time looking at who would have standing to challenge Charity Commission decisions … might need to review that learning”.
Maugham is frequently outspokenly critical of the Charity Commission as a body, and at that date cannot possibly have had LGBA in mind in the context of reviewing the law on standing to challenge one of its decisions.
On 7 May 2021, less than a month before Mermaids’ appeal he tweeted: “In cheering Friday news, we’ve found a very effective way to challenge the baffling decision of the Charity Commission to subsidise the activities of a transphobic hate group with your taxes.” If “we” is the GLP, it clearly could not have had standing.
Mermaids appears to have been chosen or volunteered to participate in the appeal as the organisation with the best case on standing on the facts, and the GLP set up a crowdfunding appeal for it, raising nearly £84,000 from 3,104 pledges by 2 June 2021. Last week’s news was less cheering for the GLP and Mermaids. But it may not be the end of the story; the judge who made the December 2021 ruling thought an appeal on standing was foreseeable.
But an appeal upwards through the tribunal and court system would have to reach the Court of Appeal, with a permission filter at each stage, to have any prospect of changing the current interpretation of “affected by”. That would be even more time-consuming and expensive than the case has already been and burdensome on both charities – particularly on LGBA, which would remain in existential limbo until all appeals were exhausted. And if Mermaids wins an appeal on standing, there will have to be a rehearing of the full merits review.
An alternative outcome is that even if an appeal did establish a less narrow interpretation of “affected by”, Mermaids might still fail to meet it on the facts.
That would be no injustice. English charity law has always been pluralistic in its accommodation of a range of beliefs, both in charities established specifically for the advancement of religion and in others whose activities are motivated by sharply conflicting beliefs: promoting or restricting access to abortion being an obvious example.
The Mermaids decision protects this pluralism by ruling that “being affected emotionally and/or socially by a decision to register a charity is insufficient to provide standing to appeal it, no matter the depth of feelings or strength of disagreement”. I hope this important principle survives.
Barbara Rich is a barrister and tweets on legal issues.
During the autumn of 2022, over 200 people joined by video link to observe the hearing of evidence and legal argument in Mermaids v. (1) The Charity Commission for England and Wales and (2) LGB Alliance. Judgment in the case was published and made headlines last week. Public interest flowed from seeing the case as a front in the “gender wars” between proponents and opponents of a range of beliefs about sex and gender identity.
Mermaids, a charity established in 1995 with the purpose of “relieving the mental and emotional stress of children and young people under 19, and their families, affected by gender identity issues, and advancing public education in these issues”, appealed against the Charity Commission’s April 2021 decision to register as a charity the LGB Alliance, an organisation formed in 2019 “to promote equality and diversity in respect of lesbian, gay and bisexual people” according to its registered objects.
Its founders were two lesbians with a long history in rights campaigning and whose public statements about the application for charitable status expressed a clear intention to “challenge the dominance of those who promote the damaging theory of gender identity”. But as the two judges who decided the case explained, it was not about the gender wars, but the law of charities.
Charity law is agnostic between opposing beliefs. The ultimate issue was whether LGBA should be registered as a charity. That requires being an organisation established for purposes that are charitable in English law, and with sufficient public benefit.
But that question, involving a full merits reconsideration of the Charity Commission’s decision, could only be decided if Mermaids met the threshold of eligibility to ask the judges to do so.
This is “standing”. It is not, as Mermaids has consistently described it, a “technicality”, but an important element in a scheme created by Act of Parliament.
The Attorney General, whose role (irrespective of politics) includes representing the public interest in charity, has an unlimited right to appeal a Charity Commission decision. But a private individual or organisation does not, unless it is or may be “affected” by the Charity Commission’s decision in some meaningful way that an ordinary member of the public is not.
In the few previous cases, culminating in a decision of a High Court judge in 2016, “affected” has been interpreted narrowly to mean that there must actually or potentially be a direct effect on a person or organisation’s legal rights arising from the Charity Commission’s decision. Mermaids accepted that the tribunal had to use this narrow interpretation.
It is no great surprise that Mermaids failed this test. Its arguments that LGBA lobbied against Mermaids and potentially prevented it from receiving funding were insufficient to qualify, and the judges emphasised that “charitable status does not come with any guarantees of funding nor any freedom from criticism or debate.”
Standing is the only issue the tribunal decided. In December 2021 a judge had directed that evidence and legal argument on both standing and the full merits review of the Charity Commission’s decision should be heard together. This led to the rather unsatisfactory outcome of deciding on standing, but going no further than to state that the two judges had been unable to agree on whether, if Mermaids had standing, LGBA was a charity.
If they had had to decide this issue, the senior of the two judges would have had a casting vote. But as they did not have to decide it, they declared that it would be inappropriate for them to set out individual reasons on a hypothetical issue.
With hindsight, the December 2021 ruling appears mistaken. Time and costs would have been saved by deciding standing as a preliminary issue, and it would have avoided speculation by Mermaids that if it had succeeded on standing, it might have succeeded on the question of LGBA’s charitable status, and won its case. This is a big “if”.
Mermaids argued persuasively in December 2021 that both issues should be heard together as the evidence on both was intertwined. The thrust of its case was that LGBA’s “true” purpose as a charity was to attack Mermaids, and its argument in part depended on persuading the tribunal to look at a wider range of materials than its formal governing document, the conventional sole or primary source, to interpret what LGBA’s “true” purpose was.
It would be interesting to know what the judges made of these arguments. It is possible that their disagreement about LGBA’s charitable status was about whether its purposes were too political for it to qualify as a charity. But it is an exaggeration to say that this “puts a huge question mark over LGBA’s status”.
It remains a registered charity, and the same test of standing would face any attempt to de-register it. Registration has already been effective to control its social media activity, which was criticised as having given rise to well-founded pre-registration concerns of having gone beyond the boundaries of civilised debate, and may continue to operate in Mermaids’ or the public interest in the same way.
What next? How far is Mermaids being pursued as a test case on standing? On 26 November 2019, two days before LGBA was even registered as a company, Jolyon Maugham, Executive Director of the Good Law Project (“the GLP”) tweeted: “I did spend some time looking at who would have standing to challenge Charity Commission decisions … might need to review that learning”.
Maugham is frequently outspokenly critical of the Charity Commission as a body, and at that date cannot possibly have had LGBA in mind in the context of reviewing the law on standing to challenge one of its decisions.
On 7 May 2021, less than a month before Mermaids’ appeal he tweeted: “In cheering Friday news, we’ve found a very effective way to challenge the baffling decision of the Charity Commission to subsidise the activities of a transphobic hate group with your taxes.” If “we” is the GLP, it clearly could not have had standing.
Mermaids appears to have been chosen or volunteered to participate in the appeal as the organisation with the best case on standing on the facts, and the GLP set up a crowdfunding appeal for it, raising nearly £84,000 from 3,104 pledges by 2 June 2021. Last week’s news was less cheering for the GLP and Mermaids. But it may not be the end of the story; the judge who made the December 2021 ruling thought an appeal on standing was foreseeable.
But an appeal upwards through the tribunal and court system would have to reach the Court of Appeal, with a permission filter at each stage, to have any prospect of changing the current interpretation of “affected by”. That would be even more time-consuming and expensive than the case has already been and burdensome on both charities – particularly on LGBA, which would remain in existential limbo until all appeals were exhausted. And if Mermaids wins an appeal on standing, there will have to be a rehearing of the full merits review.
An alternative outcome is that even if an appeal did establish a less narrow interpretation of “affected by”, Mermaids might still fail to meet it on the facts.
That would be no injustice. English charity law has always been pluralistic in its accommodation of a range of beliefs, both in charities established specifically for the advancement of religion and in others whose activities are motivated by sharply conflicting beliefs: promoting or restricting access to abortion being an obvious example.
The Mermaids decision protects this pluralism by ruling that “being affected emotionally and/or socially by a decision to register a charity is insufficient to provide standing to appeal it, no matter the depth of feelings or strength of disagreement”. I hope this important principle survives.