Analysis
The Human Dignity Trust (HDT) is a company limited by guarantee, incorporated on 16 December 2010. It was established to support people whose human rights were violated by the criminalisation of private, adult, consensual homosexual conduct, including by assisting them and their lawyers to bring litigation in domestic courts and tribunals, or against a state before international courts and tribunals. Its objects were to promote and protect human rights throughout the world, including the rights to human dignity and to be free from cruel, inhuman or degrading treatment or punishment, the right to privacy and to personal and social development, and to promote the sound administration of the law. It had powers which were exercisable only in furtherance of the objects, including power to provide and assist in the provision of legal advice and legal representation, and to bring and assist in bringing legal challenges and judicial review proceedings before courts and tribunals. It also carried out a number of educational activities including research programmes and public educational events. On 3 October 2013, the Charity Commission refused to enter it into the Register of Charities under s30 of the Charities Act 2011.
That decision was made on the basis that its objects were too vague and uncertain for the commission to be certain that it was established for charitable purposes only and that it had a political purpose – namely that of seeking to change the law of foreign states, which precluded charitable states. HDT appealed on the basis that its objects were not vague and uncertain, that the decision demonstrated a fundamental misunderstanding of the nature of a constitutional human rights challenge, because litigation aimed at upholding a citizen’s constitutional rights did not seek to change the law of relevant jurisdiction but rather enforces and upholds the superior rights guaranteed by that country’s constitution.
Held:
- 1) When applying the statutory test in the Act, the starting point was to identify the particular purpose of the institution. The particular purpose was charitable if it fell within any of the categories listed in s3(1) of the Act. As to what was for the public benefit, that was not fixed but changed over time.
- 2) HDT’s purposes were not unclear or ambiguous. On the basis of expert evidence, the scope of the human rights to be protected and promoted was clear and sufficiently well particularised.
- 3) Conducting and supporting litigation of the type described in the witness evidence did not amount to a parallel purpose. Conduct of such litigation was a means of protecting and promoting human rights rather than an aim of HDT in itself.
- 4) There was nothing objectionable in principle about an institution which declared wide purposes but in practice confined itself to a smaller area of operation than that permitted.
- 5) The term ‘human rights’ in s3(1)(h) of the Act had no ‘particular meaning under the law relating to charities in England and Wales’ for the purposes of s3(3) of the Act. It was to be given its ordinary natural meaning and there was no authority for the Charity Commission’s view that it was to be understood only as referring to those human rights accepted by the law of England and Wales.
- 6) Human rights was a broad and rapidly evolving concept and necessarily so in order to take account of developments in law, society and science. Parliament must have intended the ‘living instrument’ approach in mind in leaving the term ‘human rights’ undefined in the Act. It followed that the scope of the rights falling within the description of charitable purposes could evolve and change from time to time.
- 7) HDT’s objects, properly construed, fell within the descriptions of purposes set out in s3(1)(h) of the Act. They were limited to the protection and promotion of the rights set out in the Universal Declaration of Human Rights (UDHR) and subsequent treaties. HDT’s strategic litigation activities did not constitute a separate purposes and it was not necessary for the Tribunal to consider whether it would fall within the meaning of ‘human rights’ in s3(1)(h) of the Act.
- 8) The sound administration of the law was a discrete purpose. It fell under s3(1)(m)(i) of the Act as a charitable purpose. HDT’s objects, properly construed, only allowed it to operate in countries where the UDHR and subsequent treaties applied and where there was a constitutional court competent to hear the case.
- 9) It was not necessary for HDT to demonstrate that there would be a benefit to the public in England and Wales arising from its activities abroad. In any case, there was ample evidence of the public benefit to the community in the UK flowing from its activities abroad.
- 10) The promotion and protection of human rights (a) by means which included 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 relevant treaty obligation so as to enable that process, was not a political purpose or a political activity. The ambit of human rights had evolved in recent years, particularly in relation to the human rights of the LGBTI community.
- 11) The public benefit requirement was met. The support and conduct of the type of litigation was beneficial to the public. Purported criminalisation of relevant conduct represented a serious breach of human rights norms and there was a public benefit in seeking to interpret, clarify and protect superior constitutional rights.