A JURISDICTIONAL TURN OR JUST A ONE OFF CHANCE FOR HUMAN DIGNITY?
The UK Charity Tribunal Decision of Human Dignity Trust v Charity Commission for England and Wales CA/2013/0013
On 9 July 2014 the UK Charity Tribunal granted Human Dignity Trust its appeal to be registered as a charity in a ruling that has reinvigorated the jurisdictional terrain on the prohibition of political organisations registering as charities.
Human Dignity Trust (HDT) is a company limited by guarantee incorporated in 2010 with the objects of promoting human rights (as set out in the Declaration of Human Rights and subsequent UN Conventions and Declarations) in particular in relation to the support of homosexual persons whose human rights are violated such as by laws criminalising homosexual conduct.
In pursuit of these objects HDT would provide assistance such as legal advice and representation as well as conducting legal challenges and judicial review proceedings with the aid of a pro bono panel of constitutional and international law experts.
HDT applied for charitable status in 2011 but was rejected by the Charity Commission both at first instance and again in 2013 on appeal.
The appeal before the Charity Tribunal challenged the Commission's findings which denied charity status to HDT, including its finding that the objects of HDT were "unclear or ambiguous" and political in nature.
Since the decision of the House of Lords in National Anti-Vivisection Society v Inland Revenue Commissioners (IRC) [1948] AC 31, in the UK organisations with political aims have been refused registration as charities. The rationale for this exclusion is that by definition a charity must have an exclusively charitable purpose and must provide a public benefit. It was seen to be beyond the proper Constitutional competence of a judicial body, to assess whether a political purpose could fit the definition as that would involve questions of public policy which were beyond the competence of the body to consider.
Consequently many organisations with a mixture of charitable and political aims have had to restructure to keep these objects and activities distinct across two or more separate entities.
In the present case, before the Tribunal, the Charity Commission sought to argue that HDT was engaged in a mixture of charitable and non-charitable (political) activities. The Charity Commission pointed out that although the statutory list of charitable purposes in Section 3(1) of the Charities Act 2011 (UK) included "advancement of human rights," these were narrower than the potential stretch of HDT's ambiguously phrased objects.
The Tribunal rejected these arguments noting that whilst human rights can embrace highly politicised ends, HDT's objects were not so vague and unclear as to risk this. In particular, the Tribunal observed that:
"HDT was not agitating or campaigning for law reform in the political sense, but seeking to enforce the existing international human rights norms to the extent that they are incorporated into the legal system of a member state. Given that human rights are a "living instrument" that evolve over time with community shifts and trends and given that seeking enforcement of these rights was done within the Constitutional framework, any policy considerations involved in HDT's activities were part and parcel of the legal systemin a Constitutional democracy."
The Tribunal was careful to stress that its decision does not mark a reversal of existing precedent or any jurisdictional turn, but explained that the reasoning was confined entirely to the specific facts of the case. Nonetheless, the Tribunal's approach to these facts and its nuanced reasoning along with the inclusion of "human rights" within the statutory list of charitable purposes may be the early signs of a shift in what comes to be regarded as charitable.
With the expansion of human rights projects and rise of international networks of organisations engaged with such aims, there may yet be further cases so watch in this space.
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