Litigating Human Rights Cases Held not to be Charitable in England
By Arthur Drache, C.M. Q.C.
Over the years we have regularly criticized both the CRA and the Federal Court of Appeal for what we consider to be their too restrictive view of political activities.[1] We often have cited the more “liberal” approach of the Charity Commission and the authorities in the US. But a recent decision by the Charities Commission shows that there are limits beyond which they will not go.
The Charity Commission has upheld its June 2012 decision not to register the Human Dignity Trust (HDT) as a charity.
The HDT works to support individuals who seek to challenge legislation criminalising consensual sexual activity between same sex adults in certain countries. It applied to register as a charity in July 2011, and requested a decision review after the Commission refused registration in June 2012. This issue of course is becoming ever more important as we have seen from media reports emanating from Russia
The Commission said that it recognises the value of the work of the HDT in remedying what many see as injustices in foreign jurisdictions. It says its decision is no reflection on the merits of the organisation’s aims and activities, but results from its view that the HDT “is not established for exclusively charitable purposes for the public benefit”.
The principal activity of the HDT is to bring legal proceedings in certain foreign jurisdictions, or in international courts, to clarify the law where the HDT considers that domestic legislation criminalising homosexuality is at variance with constitutional law or international law. The Commission says that the purposes of HDT are not cast in an exclusively charitable form and that it cannot meet the public benefit requirement for a charity as its purpose is directed towards changing the law.
William Shawcross, Chairman of the Charity Commission said:
“I sympathise with the aims of the Human Dignity Trust and know that many people around the world will support their work to tackle discrimination. However, the Commission’s role is to assess whether an organisation is charitable in law. We cannot and must not make our decisions based on value judgements about the merits of an organisation’s aims or activities. I appreciate this decision will come as a disappointment to the Trust and its supporters.”
Kenneth Dibble, Chief Legal Advisor and Head of Legal Services at the Commission said:
“The Charities Act 2011 recognised that the advancement of human rights can be a charitable purpose, subject to the public benefit requirement being met. Case law relating to public benefit precludes purposes directed to changing the law being charitable, however desirable such changes might seem. After carefully considering the purposes of the Human Dignity Trust, we have concluded that they are not exclusively charitable in law. We recognise and respect the legal arguments made by the Trust, but we are bound to follow the law as we understand it given the important legal principle involved.”
These statements are similar to those made by Canadian courts and we agree that the law seems fairly clear that activities to change the law, whether domestic or foreign is considered to be “political”. One can see from the statements above that there was a great deal of official sympathy for the organization.but to no avail. We should note that enforcing existing law usually is charitable which is why an organization such as Mothers Against Drunk Driving in recognized as a charity.
It is worthwhile reading the actual decision. [2] The lawyers for the organization obviously took great pains with their objects and they remind us of some that we have seen in Canada.
The HDT is now free to appeal the decision before the Charity Tribunal. We will certainly be watching to see what the outcome of any further appeal might be. Meanwhile, the powers that be in Canada will appreciate this decision though of course it is not binding here. Our experience is that decisions of the Charity Commission are ignored when they support Canadian applicant positions but cited with approval when they do not.[3]
[1] See for example Action by Christians Against Torture 2005 FCA 257
[2] http://www.charitycommission.gov.uk/media/544314/human_dignity_trust.pdf
[3] See for example HOSTELLING INTERNATIONAL CANADA 2008 FCA 396