Charity and politics: can they mix?

Historically, a line has been drawn between political organisations and charities.

Since the case of National Anti-Vivisection Society v IRC, there has been a prohibition on charities existing for political purposes. This means that a charity cannot exist with the aim of promoting a change in the law, whether in this country or abroad.

Human Dignity Trust (HDT) is one of a number of charities with the aim of protecting individuals all over the world from breaches of their human rights. It aims to bring national law into congruence with international human rights law, with particular emphasis on the rights of homosexuals. It achieves this by providing legal advice as well as bringing legal challenges and judicial review proceedings.

In June 2012 (and again in October 2013), the Charity Commission rejected HDT’s application for charitable status. This rejection was based on the grounds, among others, that its purposes were political. A recent decision in the Charity Tribunal has clarified HDT’s position and rejects the Commission’s conclusion that HDT’s objectives are ambiguous and that its purposes are political.

What is a charity?

A charity can be structured as a trust or as an incorporated organisation, but must satisfy two requirements. Firstly, it must have an exclusively charitable purpose and secondly, it must have a public benefit. The advantages of charitable status are numerous. Charities are exempt from capital gains tax, income tax, stamp duty and inheritance tax. They are also exempt from certain requirements of trusts law.

The Charity Commission is in charge of overseeing around 180,000 charities and registers about 5,000 every year. It has five distinct objectives but its underlying concern is gaining public confidence and trust in the charity sector.

Human Dignity Trust

HDT appealed against the Charity Commission’s rejection of its application. One particular aspect of the tribunal’s analysis relates to political purposes of charities. The rule has affected a number of well-known charities.

For example, in the case of McGovern v Attorney General, it was decided that Amnesty International’s objectives crossed the line in terms of political purposes due to its promotion of the abolition of laws permitting torture. Consequently, Amnesty International is structured with two separate entities. Only one has charitable status.

Despite cases such as Amnesty, the tribunal decided that HDT could qualify as charitable. Three reasons were used to support this conclusion.

Firstly, it was ruled that HDT does not operate to change the law of countries. It seeks to challenge laws that may infringe existing international human rights, which the particular country has submitted to. The protection of existing rights therefore does not have the same implications as campaigning for legislative change.

Secondly, the distinction was made between parliamentary and constitutional supremacy. If a legislature has submitted to a constitution, challenging the law through litigation is part of the political system. The tribunal acknowledged HDT’s activities as “engaging in a legitimate constitutional process”. The same does not hold true where parliament is supreme. Where parliament is supreme, the courts cannot usurp the legislature.

Thirdly, the tribunal expressed human rights as a “living instrument”. Testing, challenging and litigating these rights may be the only way to achieve their evolution.

What is the impact of this reasoning?

The judgment of the tribunal emphasises the unique facts of this case. It stresses that it “does not establish a legal precedent for the registration of other prospective charities”. The case is strictly limited to the four corners of the judgment but signals an interesting development in the treatment of political purposes. As international jurisprudence grows, citizens gain more rights from sources other than the UK parliament. The suggestion that HDT is an anomaly may be naïve when considering the internationally binding treaty obligations the UK government has signed and continues to sign each year.

At what point will the traditional notion of parliamentary sovereignty be outgrown and subsumed with an evolving, living spectrum of international rights and privileges?

Although rejecting charitable status would not forbid organisations like HDT from existing at all, their acceptance is a sign of a society making it easier for good causes to prosper. Most people would agree that a group advocating the abolition of slavery or promoting basic rights has a charitable purpose and a benefit to the public. This is reflected in the drafting of the Charities Act 2011 to include the “advancement of human rights” as a charitable purpose.

The decision of the tribunal does not change the law, but does provide an interesting logic for other charities to be aware of. It comes amid growing criticism of the Charity Commission’s ability to govern charities. Margaret Hodge MP has recently spoken out, saying the Charity Commission is not fit for purpose. If the Commission is going to secure public confidence, it may be time to reflect general public judgment over what should be charitable.

Jack Busby is an LPC student. He will shortly begin his training contract at Allen & Overy.

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