The Charity Commission could face judicial review proceedings if it fails to take action over the Garden Bridge Trust, according to new QC opinion
The new legal opinion from David Matthias QC – seen by the AJ – has concluded that the charities regulator could face a judicial review challenge from a concerned member of the public due to its ‘failure’ to call the trustees to account in respect of losses resulting from prematurely signing a construction contract.
Last summer, Jason Coppel QC said it was ‘likely’ that trustees of the Garden Bridge Trust breached their legal duties to act with reasonable skill and care ‘in particular in relation to the conclusion of the construction contract with Bouygues’.
While Coppel’s opinion is strongly contested by the trustees themselves, the signing of the contract in early 2016 substantially contributed to the aborted scheme’s estimated £43 million bill.
Matthias’s opinion concludes: ‘The Administrative Court might well be persuaded that a member of the public did have sufficient standing to challenge the Charity Commission’s failure to call the trustees to account for such negligent conduct.’
Following repeated complaints about the Trust from individuals including Vauxhall MP Kate Hoey, the Charity Commission carried out an inquiry in 2016 and concluded in February 2017 that the Garden Bridge Trust was acting in compliance with charity law and had the correct financial controls in place.
Since then, it has continued to stand by these findings. However, it has also recently opened a regulatory compliance case and has met and corresponded with a number of politicians to hear their concerns about the Trust.
Caroline Pidgeon, the Lib Dem chair of the London Assembly’s Transport Committee, said she would once again write to the Commission to urge it to launch a full investigation of the running of the charity.
‘Public money has been scandalously wasted and private donors are rightly up in arms that their generosity has been squandered,’ she said.
‘The Charity Commission needs to face up to the magnitude of this issue and recognise that the actions of the Garden Bridge Trust also have a detrimental impact on the reputation of the wider charity sector and future fundraising initiatives.’
Donor Michael Gross, founder and owner of Sydney & London Properties, who gave £50,000 towards the Garden Bridge, complained last month the money had been ‘pissed down the drain’. He echoed Pidgeon in demanding the regulator launch an inquiry.
‘I would have thought that the Charity Commission is under an obligation to investigate how £43 million of donor, central and local government money has been lost and has never been accounted for on a project which failed in the most regrettable circumstances,’ he told the AJ.
‘It is incumbent upon Charity Commission chair Baroness Stowell to launch a full and open investigation. At the same time, it seems to me that Garden Bridge trustees are themselves obligated to refund the individual donors in full, and to give a full and detailed accounting for this extraordinary level of expenditure. If they cannot, there is a clear question of personal liability.’
Michael Ball, chair of Thames Central Open Spaces, a local action group which took legal action against the Garden Bridge Trust when the project was live, said the scheme’s delivery by a charity reliant on public money had enabled key players ‘Boris Johnson, Thomas Heatherwick, the Garden Bridge Trust, the Department for Transport, TfL and even the Charities Commission to pass the buck’.
He added: ‘This culpability merry-go-round could be stopped immediately by the Charities Commission re-visiting their hapless investigation of the Trust - and at least saving £5m of public funding.
‘The clear advice of David Matthias QC is that we all have a direct interest in government according to law, and therefore sufficient standing to bring a Judicial Review should TfL attempt to pay off the GBT. And we will.’
Pidgeon’s fellow London Assembly member Tom Copley, a Labour member who chairs a new cross-party working group examining the Garden Bridge saga, confirmed it ‘will be looking into the Charity Commission’s role as regulator’.
Copley added: ‘I hope they will co-operate with our investigation. We will also be examining the role of the TfL officers who attended the trust’s meetings and were supposed to provide oversight to protect public money from being wasted.
‘Given the enormous loss of taxpayer cash resulting from this project, Londoners and taxpayers across the country will want to know what the regulators were doing.’
Both QC opinions were obtained by Unity Legal Solutions, a firm providing services to consumers of legal advice.
Unity founder Roger Billins said: ‘Clearly, the commission needs to revisit their position on the Garden Bridge Trust. I will be writing to them to ask them to undertake a review.’
A Charity Commission spokesperson said: ‘We continue to engage with the trustees of Garden Bridge Trust on matters that fall within our remit. It is not, and never has been, our role as charity regulator to judge the virtues or otherwise of the allocation of public funds to this project, although we recognise that there is public interest in this matter.
‘We will be writing to the trustees in due course and will provide an update on our regulatory engagement shortly.’
A spokesperson for the Garden Bridge Trust said: ‘In response to the alleged criticism of the conduct of the trustees of the Garden Bridge Trust, please note that at every stage of the project the trustees, working closely alongside a range of professional advisers, complied with all of their legal and regulatory requirements. Any suggestion otherwise is simply wrong.’
The Mayor of London declined to comment.