OK this is not about mental health law. And I should really wait and see what the Charity Tribunal says. But I was so cross at this comment piece from Geoffrey Robertson which I broadly agree with but is still full of errors (Scientology is not a religion) that I had to do some thinking. And since there was no chance the Guardian were going to publish 2 pieces agreeing that the Human Dignity Trust should be recognised as a charity I have put this one up here for safekeeping.
It is also an odd way of rewarding myself for marking a huge number of exam papers on Trusts over the last week many of which tackled a difficult essay question on charities law.
The Human Dignity Trust does vital work challenging the criminalisation of homosexuality around the world. To be criminalised on the basis of one’s sexuality activity inherently undermines dignity and the related human rights to privacy, equality and freedom from cruel, inhuman and degrading treatment.
But it is not able to operate as a charity so unlike many religious organisations, private schools, private hospitals and animal sanctuaries the Human Dignity Trust receives none of the tax advantages of charitable status. To be recognised for charitable status an organisation must demonstrate that it was established for one of the charitable purposes listed in s.3 Charities Act 2011 and that it exists to benefit the public.
So today’s hearing at the Charity Tribunal could not be more important, to the Trust itself, and many other campaigning groups which want to demonstrate that their work benefits the public.
At issue are two key questions in charity law, one old and one new. The old question is the extent to which a charity which solely or mainly exists to promote change in the law either in the UK or in other countries can be recognised as performing a public benefit? The new question is how we define ‘the advancement of human rights’ as a charitable purpose.
The new question is easy. The Human Dignity Trust have stated that their definition of human rights is taken from the Universal Declaration of Human Rights and other relevant international and regional conventions. The Charity Commission quite reasonably pointed out that there is no freestanding right to ‘human dignity’ in international human rights law. A standard philosophical construction of the relationship between human dignity and human rights is that dignity is the end to which rights pertain. This creates a Catch-22. A charity to promote human dignity is not advancing specific human rights. The Human Dignity Trust cannot possibly specify in advance which human rights provisions will be found by regional or domestic courts to require the decriminalisation of homosexuality because they have not taken the necessary strategic litigation yet. On this new question the Charity Commission’s response to the HDT application is ambiguous [see paras 21-2] and needs to be clearer because this issue deserves to be clarified. If a charity’s purpose is to advance human rights must they specify the actual justiciable human rights instruments they are going to advance?
But this still leaves a larger question of whether litigating to change the law can be a charitable activity at all.
This is much harder. In 2013 when the HDT applied for charitable status the Charities Commission gave a predictable but disappointing answer. In a 1981 case called McGovern v Attorney-General the High Court ruled that a small organisation set up to conduct research into human rights to advise Amnesty International could not be considered charitable. Slade LJ was concerned that lobbying to change the law was a political purpose and as such the courts could not know whether or when the charity was actually performing its duties. Since the enforcement of charity law is done by external regulators it is crucial that they can look at the organisation’s activities and consistently observe whether it is both consistent with its purpose and continuing to benefit the public. Courts and regulators are poorly placed to evaluate whether a programme of litigation is either charitable or beneficial to the public since they assume that the law as it stands is correct. Asking a court whether a planned programme of litigation is beneficial to the public is in effect also asking what the outcome of the litigation should be.
In 2006 Parliament made matters easier for the Charity Commission by telling it that the advancement of human rights is a charitable purpose. The regulator has been told that activities to advance this end should be looked upon favourably. But it still leaves a problem if the activity is pursuing litigation and not other human rights promotion work such as awareness-raising or working with survivors of human rights abuses.
Reading the case again I was struck by how different the world of human rights litigation looked from the perspective of 1981. In 1981 Slade LJ was concerned that an English court could not know if pursuing litigation to oppose the death penalty for adultery in a state governed by Islamic law would advance human rights because the judge would know too little of local conditions. After 14 years of the Human Rights Act and assessments of the practices of courts in other territories for numerous reasons this concern looks weirdly parochial. Any English judge today would feel competent to assess that being stoned to death for adultery abuses one’s human rights. The second question is whether litigation to challenge the local practice will achieve anything. But if the issue is whether litigation may be futile then the test being applied is ‘risk of not achieving a benefit’ and if we start applying that to research, religion or amateur sport (especially amateur sport) where will we be?
By definition human rights abuses occur when states allow laws to persist or create new laws which authorise the abuse of human rights – the performance of the death penalty, the use of torture to extract information in a state of emergency, the continued use of plenary guardianship and isolated social care institutions to legally deprive disabled people of their liberty and legal and political status… Strategic litigation is a valuable tool in the arsenal for human rights activists. But strategic litigation is also a practice carried out by big companies wanting to challenge legislation which affects their commercial interests and by campaign groups wanting to promote idiosyncratic personal ends. In the first case it is not clear that the litigation should be exempt from tax and in the second example it is not clear that taking it will benefit the public. So what makes the Human Dignity Trust different?
The answer must lie in the second half of the statutory provision which tells us that it is a charitable purpose to advance human rights. It goes on to state that it is a charitable purpose to promote conflict resolution, reconciliation and religious and racial harmony or equality and diversity. Human rights belong with a group of charitable purposes which make society more harmonious and less divisive.
The main thrust of McGovern v Attorney-General was correct. It would be dangerous to establish a precedent that campaigning to change the law alone is charitable. At the same time advancing human rights means advancing legal change. And Parliament has confirmed twice in the last decade that advancing human rights is a charitable purpose.
The distinction is that human rights belong to all of us. They are general and not particular. Organisations, like the Human Dignity Trust do not seek to divide society by promoting specific personal or commercial interests. They want to lawfully promote the rights of all people to enjoy sexual freedom.
This is a distinction which the Charities Commission can observe and can enforce and in this respect the judgment in McGovern has clearly been superceded both by statute and by changing public attitudes. The Charities Commission is quite capable of asking whether the litigation a charity wishes to pursue will genuinely bring about an advance in the human rights of those affected. And to know whether pursuing this litigation is likely to benefit the public the Charities Commission can consider the size of the sector of the public whose rights are being promoted, the likely impact on others of success and the impact of the human rights affected.
There will, inevitably, be problematic test cases at the margins if the Human Dignity Trust succeed. Most will concern domestic campaign groups which want to redefine their goals as relating to the promotion of human rights. And perhaps more of these groups should be given charitable status than enjoy it currently.