Link: Case Summary Document
Citation:  UKFTT First Tier Tribunal (Charity), (General Regulatory Chamber, McKenna J, Ms S. Elizabeth)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
The Human Dignity Trust (HDT) appealed a decision of the Charity Commission not to register it as a charity. The appeal was upheld and the Commission was directed to rectify the register to include the HDT as a charity.
The HDT is a company limited by guarantee which challenges the criminalisation of private consensual sexual activity in countries where criminalisation occurs. The HDT counts among its members many leading law firms and barristers in the UK. The Charity Commission (the Commission) first denied charitable status to the HDT in June 2012. The HDT sought an internal review of this decision. Charitable status was again denied in a review decision published on 3 October 2013.
The Charity Commission’s original and review decisions
The basis for the original decision was that the HDT’s objects were not exclusively charitable because some of its purposes were directed at changing the law. The Commission said that ‘changing the law’ was not a charitable purpose and therefore could not meet the public benefit test under English law.
Although the Charities Act 2011 recognises the advancement of human rights as a charitable purpose, the Commission said (at ):
It is a long standing and important rule in charity law that political purposes cannot be charitable purposes, as changes to the law or government decisions, either in this country or abroad, cannot necessarily be seen as beneficial and therefore meeting the public benefit requirement. Given that the purposes of human rights organisations may be directed towards such aims, whether the public benefit requirement is met is also an issue in considering the charitable status of such bodies.
In its review decision, the Commission said that the purposes of the HDT were unclear and the public benefit uncertain on a reading of its objects. This was because its objects referred to the Universal Declaration of Human Rights (a United Nations document) and its references to dignity and social development. The Commission took the view that the Universal Declaration of Human Rights in fact contains no express right to dignity or social development, although it certainly refers to dignity as something separate from rights.
As the objects were judged unclear, the Commission then considered the factual background to the HDT, including its website contents. It disagreed with the HDT’s contention that there was a body of case law dealing with human dignity. The Commission said that the HDT’s sole focus was (at ):
…to bring and assist in bringing legal proceedings either in foreign jurisdictions or international courts to seek to change domestic legislation in foreign jurisdictions which criminalise homosexuality. Accordingly, it is arguable from the relevant background information that the most significant element of the company’s purpose is directed towards procuring changes in such laws of foreign countries.
The HDT’s purposes were found to be not exclusively charitable because although the advancement of human rights could be a charitable purpose under the Charities Act 2011 (at section 3(1)(h)), ‘human dignity’ was a fundamental value underpinning human rights rather than a fully articulated right in itself. This seemed clear from the wording of the Universal Declaration of Human Rights, so that the expressed objects of HDT fell short of being charitable (at ):
In determining charitable status the Commission must consider the purposes as set out in the constitution of HDT. If the rights, in particular, to human dignity, privacy and to personal and social development are not “human rights” as such then the objects of HDT do not fall within the advancement of human rights in the Charities Act 2011.
Although the HDT proposed altering its objects to meet the requirements of the Commission, its proposed changes were also rejected as being not charitable. Whilst advancing the administration of justice or clarifying the law might be charitable purposes, changing the law was not (at ):
Under charity law a purpose directed towards changing the law or changing decisions or policies of government or government authorities either in this country or in foreign jurisdictions is not charitable, and as such would not fall within any of the descriptions of purposes set out in section 3(1) of the 2011 Act; McGovern v Attorney General following House of Lords authorities National Anti-Vivisection Society v Inland Revenue Commissioners and Bowman v Secular Society Ltd. The rationale for this approach being said to be that the courts must proceed on the basis that the law is right as it stands and that the court would have no means of judging whether any change in the laws be for the public benefit. Further, even if the court were to able to conclude prima facie that a change in the law was desirable, such changes are a matter for the legislature not the courts who in the last resort may need to administer charitable trusts. To take any view would usurp the function of the legislature.
The law stated in McGovern v Attorney-General (1982) Ch 321 (McGovern v AG) was the current law and thus bound the Commission. Seeking to change the law of a foreign jurisdiction (as opposed to enforcing it) was arguably (at ):
…within the remit of the legal principles established in McGovern precluding purposes seeking such challenges from being charitable…Even if our court could decide that the challenge to the foreign law would be for public benefit being consistent with human rights law enshrined in the law of England and Wales, it may be contrary to public policy for our court, (which would ultimately be responsible) to control and enforce trusts aimed at changing the law in another jurisdiction. It would seem to fail the crucial test of the competence of the court to control it. The English court would, it is considered, have no way of assessing how a foreign court might seek to construe its own constitution or treaty obligations; in particular in the light of relevant social, religious and cultural circumstances in that jurisdiction.
The Commission recognised that the position might now be different within the United Kingdom since the Human Rights Act 1998 had been enacted incorporating the European Convention on Human Rights. However, McGovern was still the law, and the position would be even more difficult when it came to changing the law of foreign countries.
On the question of public benefit, the Commission reiterated that McGovern had upheld the decisions in Bowman v Secular Society  AC 406 and the National Vivisection Society v IRC  AC 31 that trusts for political purposes could not be charitable because the public benefit involved was incapable of proof. Was the position now different? The Commission said that it was not. Since there was no public benefit arising from the HDT’s activities, it could not be charitable.
The appeal decision
The central issue in the appeal decision was whether the HDT (the appellant) was a charity. This involved a consideration of the appellant’s purposes. The Tribunal disagreed with the Commission that the appellant’s purposes were unclear or ambiguous. The objects were clearly set out in HDT’s objects clause (at ):
We conclude that HDT’s particular purpose(s) are clearly set out in its objects clause …being firstly, “to promote and protect human rights (as set out in the Universal Declaration of Human Rights and subsequent United Nations conventions and declarations) throughout the world…” and secondly, “to promote the sound administration of the law”.
The ‘advancement of human rights’ is a charitable purpose at section 3(1)(h) of the Charities Act 2011, but at issue in this appeal was the scope of this term. HDT argued that the term should be given its ordinary meaning, and the Tribunal agreed (at ):
We accept HDT’s submission that the term “human rights” is to be given its ordinary natural meaning and that there is no authority for the Charity Commission’s view that it is to be understood only as referring to those human rights accepted by the law of England and Wales. It seems to us that the Charity Commission’s suggested approach would complicate matters further, involving as it would an inquiry into the status and enforceability arrangements for any particular human rights instrument and a further requirement to define the concept of “accepted by the law of England and Wales”.
Did the appellant’s purposes fall within the descriptions of purposes in section 3(1)(h) of the Charities Act 2011 (the Act)? The Tribunal said that they did and were therefore charitable. This included the litigation (changing the law) part of its activities, even if conducted in foreign countries (at -):
HDT’s purposes are limited to the protection and promotion of the rights which are set out in the UDHR and the subsequent treaties (which includes the ICCPR). However, where these rights are particularised in clauses 2.1.1 and 2.1.2 of the objects clause, we also find, in reliance upon the expert evidence…that the rights to human dignity, to be free from cruel, inhuman or degrading treatment or punishment, the right to privacy and to personal and social development fall within the meaning of the term “human rights” that we have adopted… As we have found that HDT’s strategic litigation activities do not constitute a separate purpose, it is not necessary for us to consider whether such a purpose would fall within section 3(1)(h) of the Act.
Was the object of ‘promoting the sound administration of the law’ a charitable purpose? The Tribunal held that it was both a separate purpose and a charitable purpose. Moreover, this was not ‘political’ activity of the kind found to be objectionable in McGovern v AG (at -):
We find that “promoting the sound administration of the law” was recognised as a description of a “fourth head” charitable purpose under the “old law” i.e. prior to 1 April 2008 (see s. 3 (4) of the Act) so that it now falls within s. 3 (1) (m) (i) of the Act. There is no legal authority to support the view that the conduct of strategic litigation before a competent constitutional court is a proper means of advancing the sound administration of the law, but equally we have not been referred to any authority which suggests that it is not an acceptable means of advancing such a charitable purpose. We take the view that the conduct of the very particular form of litigation supported and engaged in by HDT is an acceptable means of advancing the charitable purpose of promoting the sound administration of the law. We draw an analogy (to the extent necessary) with the accepted charitable activities of promoting prosecutions for cruelty to animals and rewarding policemen for doing their duty, although…we regard HDT’s human rights litigation as fundamentally different in nature from the authorities concerning domestic law. We consider that the public benefit requirement and the question of whether there is any risk to foreign policy from such a purpose falls to be addressed in relation to s. 4 of the Act and that we should be careful not to merge it into our consideration of the definition of a description of a charitable purpose, as the Charity Commission’s submissions seem to suggest that we should. In any event we find…that the particular type of constitutional litigation supported and conducted by HDT is fundamentally different in nature from the activities found to be objectionable as political in McGovern v AG.
What was the proper test for demonstrating public benefit, particularly when the appellant’s purposes were carried out outside England and Wales? The Tribunal’s conclusion on a test for public benefit in these circumstances was that it was sufficient to demonstrate (i) that the purpose benefits the public (or a section of the public) abroad; and (ii) that the same purpose would be considered charitable in the case of a body confining its operations to England and Wales, provided that (iii), there is no reason of public policy not to recognise the purpose as charitable (at ).
The Tribunal said that there were no grounds to believe that the appellant’s purposes were inimical to the UK’s interests at home or abroad. Indeed, there were possibly both internal and external benefits arising (at -):
In the circumstances, we are not satisfied that it is necessary for HDT to demonstrate that there will be a benefit to the public in England and Wales arising from its activities abroad. However, if we are wrong on that point, we conclude that there is ample evidence before us of the public benefit to the community in the UK flowing from HDT’s activities. We accept Professor Chinkin’s evidence…that the criminalisation of relevant conduct represents “a serious contravention of international human rights law” and, accordingly, we conclude that it is for the public benefit of the community in England and Wales (and, indeed, the UK), as well as in the country where such a contravention occurs, for this situation to be addressed and for the human rights standards recognised by the international community to be promoted and protected. Although we were not addressed on this point, we also consider that there may be an identifiable public benefit to the community in the UK if HDT’s activities may be seen to contribute to the development of effective measures to tackle the spread of HIV infection worldwide. We note the evidence before the Tribunal…that the criminalisation of relevant conduct has been recognised by the international community as representing a significant impediment to such public health initiatives. We accept that there may be some purposes which, although satisfying the public benefit test in principle, should not be recognised for public policy reasons – for example because they are inimical to the UK’s interests. However, there is no evidence before us to suggest that HDT’s activities have in the past, or do now, cause any concern to the UK Government.
Of major interest to observers, was the issue of whether the HDT’s purposes were political. The Charity Commission firstly referred the Tribunal to the legal authorities in support of the proposition that it is not charitable to seek to change the law in England and Wales. These were both decisions of the House of Lords: Bowman v Secular Society  AC 406 and National Anti-Vivisection Society v Inland Revenue Commissioners  AC 31. That rule was effectively extended by Slade J in McGovern v AG. Following the decision in McGovern v AG, it has been accepted in England that a political purpose is one which (i) furthers the interests of a political party; (ii) seeks to procure changes in the laws of England; (iii) seeks to procure changes in the law of a foreign country; (iv) seeks to procure a reversal of government policy or of particular decisions of governmental authorities in England; or (v) seeks to procure a reversal of government policy or of particular decisions of governmental authorities in a foreign country. Slade J’s formula (which he said was not intended to be exhaustive) was later adopted by the Court of Appeal in Southwood v AG  EWCA Civ 204.
Since HDT’s purposes and activities were directed to changing the law in a foreign state, were its purposes political? The Tribunal said that this was not so (at , ):
We are not satisfied that the litigation supported and conducted by HDT may be described as seeking to change the law. It seems to us that the constitutional process involved in interpreting and/or enforcing superior constitutional rights might, on one analysis, be seen as upholding the law of the state concerned rather than changing it, but it also seems to us that the paradigm of changing/upholding the law is one more suited to an analysis of domestic provisions than it is to the arena of constitutional rights. We prefer to characterise HDT’s activities as engaging in a legitimate constitutional process which occupies a different space from that occupied by the domestic law, although we accept that the outcome of that process may have implications for the domestic law. We find that it is intrinsic to the process with which we are concerned that the relevant state’s legislature has agreed to subjugate itself to the outcome of this constitutional process so that its role is not usurped by the court…In conclusion, for the reasons above we are satisfied that the promotion and protection of human rights (a) by means which include the support or conduct of litigation which is (b) aimed at securing the interpretation and/or enforcement of superior constitutional rights (c) in a foreign country which has given effect to the relevant treaty obligation so as to enable that process – is not a political purpose, and neither is it in our view a political activity.
The Tribunal accepted that there was no prior authority for the view they expressed because the promotion of human rights through the conduct of litigation abroad had not previously been considered by the courts or by the Tribunal. The Tribunal said that it was for the Commission to investigate the issue further ‘if and when it reviews its guidance on the promotion of human rights’ (at ).
On whether the appellant’s purposes were for the public benefit, the Tribunal held that they were (at -):
In relation to the first aspect of public benefit, we conclude from the evidence that HDT’s support and conduct of the type of litigation which takes place in the very particular context which we have described in this decision is beneficial. We have already concluded that the conduct of such litigation is not a purpose in its own right and is not political, and that, because the purported criminalisation of relevant conduct represents a serious breach of human rights norms, there is a public benefit in seeking to interpret, clarify and protect superior constitutional rights… [the] evidence…identifies a particular benefit to those individuals whose human rights are promoted and protected by this means and also a wider benefit to the community at large from having such rights interpreted, clarified and enforced in a process to which their country has assented. We are satisfied by the evidence on this point. It was not in dispute before us that the benefit accrues to the whole community or a sufficiently appreciable section of it and we find that this is the case.
Therefore, the HDT met the charity test (its purposes were charitable and they were for the public benefit), and should be registered as a charity (at ):
…we are satisfied that HDT is established for the purposes of (i) promoting and protecting human rights as set out in the UDHR and subsequent United Nations conventions and declarations throughout the world, and in particular (but without limitation) the rights to human dignity and to be free from cruel, inhuman or degrading treatment or punishment and the right to privacy and to personal and social development; and (ii) promoting the sound administration of the law. We are satisfied that these purposes are exclusively charitable because they fall within the descriptions of charitable purposes in section 3 of the Act (sections 3 (1) (h) and 3 (1) (m)(i) respectively). We are also satisfied that they are for the public benefit. Accordingly, we allow this appeal and direct rectification of the register.
The decision may be viewed at: http://www.charity.tribunals.gov.uk/documents/decisions/human-dignity-trust-v-charity-commission-judgment.pdf
Implications of this decision
This decision had the potential to have widespread ramifications for English charity law, overturning some long-established authorities. However, the Tribunal was careful to confine the decision to its own facts, so as not to create a legal precedent (at ):
…we are aware that certain views have been expressed in the press and elsewhere about the potential effect of this decision on other human rights organisations seeking charitable status and also on those charities already operating in the field of human rights. In the circumstances, it may be helpful for us to clarify here that as a matter of law this decision is confined to its own facts and does not establish a legal precedent for the registration of other prospective charities. This decision also has no legal effect upon charities already registered as such and operating in the field of human rights. It does not supersede the Charity Commission’s published guidance or the decisions of superior courts in this area.
Nevertheless, the decision will no doubt impact on the determinations of the Charity Commission when considering registration of charities of similar kinds.