The Human Dignity Trust case: What does it mean to
"advance human rights" in a charity law context?
Rachel Holmes
This question was recently considered by the First Tier Tribunal (the Tribunal) when it heard the appeal of The
Human Dignity Trust (HDT) against the Charity Commission’s refusal to register it as a charity.
HDT’s principal activity is bringing litigation to challenge laws that criminalise same-sex relationships. It only pursues
litigation in countries with constitutional human rights protections that appear incompatible with such laws, or that have
signed up to international human rights treaties that are inconsistent with them.
The Commission refused to register HDT on a number of grounds. Part of the problem from the Commission’s
perspective was that the legal meaning of “to advance human rights” – recognised as a potentially charitable purpose
in charity legislation – was unclear. Because of this, the Commission concluded that it could not be certain that HDT
was established for charitable purposes. It also took the view that HDT’s mission was essentially political, directed at
changing the law – and it is well-established that political purposes cannot be charitable.
In the appeal, the Tribunal was presented with a list of matters for determination. This article deals with two:
1.
What are "human rights", for the purposes of charity law?
2.
What public benefit issues are associated with advancing human rights overseas?
Before turning to these two questions, it is worth mentioning that the Tribunal rejected the Commission’s contention
that HDT had political purposes, finding instead that it had two fundamental objects, as set out in its governing
document:
1.
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
2.
to promote the sound administration of the law.
The charity law meaning of "human rights"
Before the Charities Act 2006, the law recognised four charitable purposes:
1.
The relief of poverty;
2.
The advancement of education;
3.
The advancement of religion;
4.
Other purposes beneficial to the community.
Over the years, the fourth category inevitably became over-populated. The Charities Act 2006 (the 2006 Act) created
a list of charitable purposes, explicitly recognising some from the fourth category, including the advancement of
human rights. Some of the purposes in the ‘new’ list had been explored in case law; others had not. The 2006 Act
made it clear that, where a purpose in the list had a particular meaning before the 2006 Act was passed, it would
continue to have that meaning.
One of the questions for the Tribunal in this case was whether or not "the advancement of human rights" had a
particular meaning before the 2006 Act was passed. If it did not, what did it encompass?
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Although the Charity Commission published guidance on the advancement of human rights before the 2006 Act was
passed, in the Tribunal’s opinion this did not mean that the term had a particular meaning that was preserved by the
2006 Act: a phrase would only have a particular meaning if it had been expounded by the courts. The courts have not
commented on the advancement of human rights (at least, not since the Human Rights Act 2008 was passed), so the
phrase should be given its natural meaning. After hearing expert evidence from both parties, the Tribunal held that
human rights includes a core set of rights (such as those set out in the Universal Declaration of Human Rights, the
European Convention on Human Rights and other widely-recognised international human rights treaties) but that it is
also a flexible, evolving concept. Given that Parliament had declined to define "human rights" in charity legislation, it
must be taken to have intended this evolving meaning. The Tribunal expressly rejected the Commission’s argument
that it would only be charitable to advance human rights that were accepted by English law.
After further examination, the Tribunal concluded that HDT’s objects fell within the scope of “the advancement of
human rights”.
Public benefit
To qualify as charitable, a purpose must be for the public benefit as well as falling within one of the categories listed in
charity legislation. Essentially, this means that the purpose must be beneficial rather than detrimental, that the benefits
flowing from it must be available to a sufficient section of the public and that any benefit to private individuals or
organisations must be incidental and proportionate.
In this case, several public benefit-related questions arose, including:
1.
What is the test for purposes that are carried out outside England and Wales?
2.
Is conducting litigation of the type undertaken by HDT a proper way of advancing human rights (and promoting
the sound administration of the law)?
Operating overseas – who has to benefit?
The Tribunal rejected the Commission’s claim that HDT had to benefit both the UK community and the community in
the countries in which it operates. A purpose will generally be charitable if it would be charitable if it were furthered in
the UK, provided there are no public policy reasons to prevent it from being charitable – for example, if furthering the
objects might prejudice relations between the UK and other countries.
The Tribunal added that even if it was wrong that the community in the UK did not need to benefit, HDT’s method of
advancing human rights did benefit people in the UK, partly because there are global benefits to ensuring that
everyone’s rights are upheld. Moreover, there was no evidence that HDT’s activities were prejudicial to the UK’s
interests.
Is conducting litigation of the type undertaken by HDT a proper way of advancing human rights (and promoting the
sound administration of the law)?
The Commission's case was that conducting litigation of the type undertaken by HDT was not a proper way of
advancing human rights because HDT was essentially trying to change the law in other countries and that there was
no way of knowing if this produced public benefit. A court asked to determine the point would either have to judge the
situation according to English notions of public benefit (which may be inappropriate in the context of a foreign country)
or apply local concepts (which it wouldn’t know).
HDT maintained that, on the contrary, it was seeking to uphold the law. It is widely accepted that there is a hierarchy
of laws and that where inferior laws conflict with superior constitutional provisions or international legal obligations,
then the inferior laws should be set aside. By seeking to strike down the inferior laws criminalising same-sex conduct,
the HDT was effectively helping to enforce the provisions of the superior laws. So the dilemma of a court having to
decide whether a proposed change in the law was beneficial would never arise. If asked, a court would only need to
determine whether it was beneficial to pursue the type of litigation undertaken by HDT.
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The Tribunal accepted HDT’s analysis, adding that it is not really appropriate to think of the HDT’s work in terms of
upholding versus opposing the law. Rather, HDT is engaging in a constitutional process. It also agreed with HDT that
a court would only need to assess the benefit of the litigation undertaken by HDT, which – in the Tribunal’s view –
does produce public benefit.
The Tribunal found that because HDT was not seeking to change the law, neither its purposes nor its activities were
political, and litigation was a legitimate way for HDT to further its objects.
Having found that HDT’s purposes were charitable, the Tribunal ordered the Charity Commission to register HDT as a
charity.
Implications
The Tribunal made a point of saying that this case should not be seen as a precedent, that it would not affect other
human rights organisations and does not supersede the Charity Commission’s guidance on human rights. To the
extent that HDT’s activities are somewhat unusual, this is no doubt true. Nonetheless, it seems likely that this decision
will influence future discussions about the scope of the charitable purpose of advancing human rights.
If your charity is involved in human rights work and you have any questions or concerns relating to this case, please
get in touch with your usual contact at Farrer & Co and we will be happy to advise you. If you would like to read the
Charity Commission’s guidance, you can find it online here, or download a PDF of it here.
If you require further information on anything covered in this briefing please contact Rachel Holmes
([email protected]) or your usual contact at the firm on +44 (0) 20 3375 7000. This publication is a
general summary of the law. It should not replace legal advice tailored to your specific circumstances. © Farrer & Co
LLP, October 2014
Telephone: +44 (0)20 3375 7000
Email: [email protected]
Web: www.farrer.co.uk