A decision of the UK First-Tier Tribunal (Charity) has been released that will be of interest to charities in Canada, particularly those engaged in the promotion of human rights and upholding of the law.
The Human Dignity Trust (HDT) applied to the Charity Commission of England and Wales for charitable status. The purposes of the HDT are:
2. The objects of the company are for the public benefit:
2.1 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 in particular (but without limitation) :
2.1.1 the rights to human dignity and to be free from cruel, inhuman or degrading treatment or punishment;
2.1.2 the right to privacy and to personal and social development; and
2.1.3 to promote the sound administration of the law.
HDT helps local groups and individuals challenge through test case litigation the legality of laws that criminalize private consensual sexual activity between adults of the same sex, wherever those laws exist in the world. HDT argues that all countries must obey international law once they have ratified an international human rights treaty. Thus, national criminal laws of such nations must conform with international human rights obligations, as well as with constitutional law norms (which require nations to take into account international human rights law in the interpretation of their domestic constitutions) and rule of law values.
The Charity Commission refused to register HDT. It concluded that HDT’s objects were too vague and uncertain for the Commission to be certain that HDT was established for exclusively charitable purposes. The Commission also argued that HDT had a political purpose which precludes charitable status – namely, that of seeking to change the law of foreign states. In reaching this decision, the Commission went to great lengths to endorse the work of HDT and recognized its philanthropic efforts. It should also be noted that it is generally recognized that the promotion and protection of human rights is charitable.
HDT appealed the Commission’s decision and the Tribunal hearing the appeal disagreed with the reasoning of the Commission and ordered that the Commission rectify the register and include HDT as a charity. The Tribunal refused to accept that there was anything ‘vague’ about HDT’s charitable objects or purposes. The Tribunal also went on to confirm that HDT had no political purpose.
The Tribunal’s decision can be found here.
While the decision contains many interesting comments about how to consider whether a particular purpose is charitable in the UK, the comments made by the Tribunal about HDT’s “political purpose” will be of particular interest given the current heightened interest in the role charities play in public discourse in Canada.
While the Commission was concerned that the test litigation brought by HDT amounted to activities that promoted a change in the law and therefore constituted an uncharitable parallel political purpose, the Tribunal disagreed. In doing so, the Tribunal confirmed that it is appropriate to use litigation to achieve a charitable purpose. This is useful to many organizations that use litigation to achieve their mission.
The Tribunal also found that in circumstances where the litigation is challenging a law on the basis that it is contrary to a commitment under an international treaty or constitutional law to uphold human rights, such challenges would not be considered evidence of a “political” purpose. The Tribunal stated:
“We find on the evidence before us that HDT is concerned with the promotion of human rights by establishing whether particular laws are valid, through a process of constitutional interpretation. We find that this process falls entirely outside the categories of activity considered by Slade J in McGovern". [McGovern v AG  Ch 321].
The Tribunal supports this distinction by recognizing the difference between circumstances where the activity relates to changing a domestic law through pressure on parliament, on one hand, and circumstances where the constitution provides a scheme against which all laws of a country are to be tested, on the other. The Tribunal described as acceptable charitable activity, litigation in a context where there is constitutional supremacy and a legitimate role for the court in interpreting and enforcing superior constitutional rights where the domestic law is thought to be in conflict with those rights.
The Human Dignity Trust case, both at the Commission level and on appeal, demonstrate the depth and complexity of charity law in today’s world. Whether this decision will be relevant to Canadian cases in the future will be determined with time.