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Artillery Row

Why Mermaids lost

There is no right to avoid criticism

Yesterday, the First-tier Tribunal handed down its judgment in Mermaids v The Charity Commission for England and Wales and LGB Alliance. The case concerned a challenge to the decision by the Charity Commission to register LGB Alliance as a charity. It’s unheard of for one charity to sue the Charity Commission for registering another organisation as a charity, but given the nature of the debate around sex, gender and sexuality lately, this isn’t entirely surprising. 

Mermaids is a charity focused on providing support for transgender and gender questioning children. It is a powerful lobby group and has made a marked contribution to policy in this area, including in relation to the planning of medical intervention for children at the Tavistock clinic, sometimes against the wishes of the child’s GP.

LGB Alliance is a charity and campaigning group focused on preventing sexual orientation discrimination against lesbians, gay men and bisexuals. It was formed in 2019 and received charity status in 2021 with the Commission cautioning that, as a charity, its campaigning and social media usage will be held to a higher standard of decorum and professionalism than had previously been demonstrated. When LGB Alliance received charity status, Mermaids sued the Commission to challenge this decision. 

The Charity Commission is the expert regulatory body here and enjoys a presumption that its decisions are valid, lawful, and correct. But there is scope for some people to challenge a decision to register a charity if (and only if) you have standing to do so.

If you have standing — the legal right — to challenge the decision of the Charity Commission, it will be a full merits appeal. This means that the decision will be remade by the Tribunal. That’s quite an important intervention. The Tribunal will not be asking whether the decision was lawful, it will instead be asked to put itself into the shoes of the Commission and remake the decision from scratch. There is no general right for just anyone to get the Tribunal to do this, for obvious reasons. 

It would be an administrative nightmare if every decision to register a charity could be appealed to the courts by anyone who disagrees with it. So you need to have express permission to do this. The Charities Act 2011 sets out who can bring a challenge: the Attorney General or persons set out in Schedule 6 of the Act, namely persons who are or who claim to be charity trustees, the corporate body itself, or any other person who is or may be affected by the decision. 

So it’s clear that the law envisages that only the Attorney General or those directly involved with or affected by the registration of an organisation as a charity can bring a challenge. Mermaids claimed that it had standing because it was affected or may be affected by the decision. 

The Tribunal accepted that in order to be affected by the decision, the registration of LGB Alliance must have had an identifiable impact upon Mermaids’ legal rights. So now the onus was on Mermaids to establish that its legal rights were affected by this decision. The Tribunal made it clear that “it is insufficient that a person disagrees with the decision emotionally, politically or intellectually”.

Mermaids made two arguments, the first being that making LGB Alliance a charity will give it access to funds that will allow it to criticise Mermaids more effectively. The Tribunal concluded that “Mermaids has no legal right to operate free of criticism”, so this isn’t an interference with its rights.

Secondly, Mermaids claimed that registering LGB Alliance as a charity will create competition with it for funding. The Tribunal dismissed this argument too. There is no legal right to have easy access to funding and “charitable status does not come with any guarantees of funding nor any freedom from criticism or debate”.

The Tribunal therefore concluded that Mermaids was not affected in any relevant sense by the decision to register LGB Alliance as a charity. The decision “does not relate to Mermaids, it is not about Mermaids nor its work”. 

there is no general right to get a court to retake the decisions of the Charity Commission just because you disagree with it

Some have asked, if Mermaids doesn’t have standing how will anyone be able to challenge the decision to register it as a charity? The response is clear: there is no general right to get a court to retake the decisions of the Charity Commission just because you disagree with it. Someone affected by the decision can bring a challenge and the Attorney General has the power to do so if they think that it is in the public interest. But this is not a general right of any person who would like to get a charity deregistered.

People will often disagree with the decisions of regulators. Indeed, here the Tribunal noted that if Mermaids did have standing, it would have been divided on the substantive issue. Because of this, no legal ruling was made in relation to the correctness of the Charity Commission’s decision and so the decision remains valid and presumptively correct.

If you have concerns about the operation of a charity, the appropriate response is to contact the Charity Commission and lodge a complaint in the hopes that the Commission will investigate. This is what has happened with Mermaids, which is currently under investigation after it reportedly offered chest binders to teenagers against their parents wishes, raising concerns about Mermaids approach to safeguarding young people. This is how regulatory regimes are envisaged to operate, allowing the Commission to do its job rather than getting bogged down in arguably vexatious litigation. 

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