Charity Commission of England and Wales refuses to register Human Dignity Trust

October 06, 2013 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News, Canadian Charity Law

The Charity Commission made clear that it is not questioning the worth of the organization but refused to register it as it did not have exclusively charitable objects.  The Human Dignity Trust was focussed on challenging laws around the world which criminalize consensual gay sex.  It is a difficult set of facts but the case would probably be decided in a similar fashion in Canada.  A charity can carry out some political activities, but its stated or unstated objects have to be exclusively charitable.

Here are some excerpts:

“The Commission recognises the aspirational and valuable philanthropic work of the HDT in seeking to remedy what it considers to be instances of injustice; however, the issue in this case is whether the organisation is charitable according to the law of England and Wales. “The mere fact that an organisation may have philanthropic purposes of an excellent character does not by itself entitle it to acceptance as a charity in law.” ...

The Commission recognises the importance and value placed by Parliament on human rights by the inclusion of the advancement of human rights in the list of descriptions of purpose which may be charitable under the Charities Act 2006. However, in so doing Parliament required, as with all other potentially charitable purposes, that to be charitable, such a purpose must fall within the descriptions of charitable purposes and be for the public benefit. It is a long standing and important rule in charity law that political purposes cannot be charitable purposes, as changes to the law or government decisions, either in this country or abroad, cannot necessarily be seen as beneficial and therefore meeting the public benefit requirement. Given that the purposes of human rights organisations may be directed towards such aims, whether the public benefit requirement is met is also an issue in considering the charitable status of such bodies. ...

The activities of the company are set out on its website and this is consistent with the information provided by the applicants in support of their application: “The Trust works with selected lawyers in each of the jurisdictions which continue to criminalise consensual same sex sexual conduct and offers them the legal assistance that they may require to bring about a successful challenge to those laws… These are the main ways in which the Trust seeks to meet its aims and objectives, although other tools relating to these aims, such as training, education and research may also, from time to time, form part of the Trust’s strategy.

Having regard to the governing document and the information provided by the company in support of its application, the sole focus of the company is, as the applicants acknowledge, to bring and assist in bringing legal proceedings either in foreign jurisdictions or international courts to seek to change domestic legislation in foreign jurisdictions which criminalise homosexuality. Accordingly, it is arguable from the relevant background information that the most significant element of the company’s purpose is directed towards procuring changes in such laws of foreign countries. Alternatively if it is not the purpose, the evidence supports the fact that this is its “sole intended activity”.  ...

Under charity law a purpose directed towards changing the law or changing decisions or policies of government or government authorities either in this country or in foreign jurisdictions is not charitable, and as such would not fall within any of the descriptions of purposes set out in section 3(1) of the 2011 Act; McGovern v Attorney General following House of Lords authorities National Anti-Vivisection Society v Inland Revenue Commissioners11 and Bowman v Secular Society Ltd12.The rationale for this approach being said to be that the courts must proceed on the basis that the law is right as it stands and that the court would have no means of judging whether any change in the laws be for the public benefit. Further, even if the court were to able to conclude prima facie that a change in the law was desirable, such changes are a matter for the legislature not the courts who in the last resort may need to administer charitable trusts. To take any view would usurp the function of the legislature.

These principles were explained and applied by Mr Justice Slade in McGovern, in relation to a purpose directed towards changing the law of a foreign state as not being charitable, because “the court will have no adequate means of judging whether a proposed change in the law of a foreign country will or will not be for the public benefit.”13 Even if the court is able to form a view on the evidence it would be bound to consider the consequences for this country as a matter of public policy. “The court would have no satisfactory means of assessing the extent of such risk, which would not be capable of being readily dealt with by evidence and would be a matter more for political than for legal judgment.”
28. Consistent with the legal principles in McGovern, if the purpose of the relevant organisation is, at least in part, directed towards procuring changes in the laws or changing decisions of government or governmental authorities in a foreign state, it cannot be charitable as public benefit cannot be demonstrated”


Here is the press release from the Charity Commission:

“Charity Commission publishes decision not to register the Human Dignity Trust

4 October 2013

The Charity Commission, the regulator of charities in England and Wales, has upheld its June 2012 decision not to register the Human Dignity Trust (HDT) as a charity.

The HDT works to support individuals who seek to challenge legislation criminalising consensual sexual activity between same sex adults in certain countries. It applied to register as a charity in July 2011, and requested a decision review after the Commission refused registration in June 2012.

The regulator says that it recognises the value of the work of the HDT in remedying what many see as injustices in foreign jurisdictions. It says its decision is no reflection on the merits of the organisation’s aims and activities, but results from its view that the HDT “is not established for exclusively charitable purposes for the public benefit”.

The principal activity of the HDT is to bring legal proceedings in certain foreign jurisdictions, or in international courts, to clarify the law where the HDT considers that domestic legislation criminalising homosexuality is at variance with constitutional law or international law. The Commission says that the purposes of HDT are not cast in an exclusively charitable form and that it cannot meet the public benefit requirement for a charity as its purpose is directed towards changing the law.

William Shawcross, Chairman of the Charity Commission says:

“I sympathise with the aims of the Human Dignity Trust and know that many people around the world will support their work to tackle discrimination. However, the Commission’s role is to assess whether an organisation is charitable in law. We cannot and must not make our decisions based on value judgements about the merits of an organisation’s aims or activities. I appreciate this decision will come as a disappointment to the Trust and its supporters.”

Kenneth Dibble, Chief Legal Advisor and Head of Legal Services at the Commission says:

“The Charities Act 2011 recognised that the advancement of human rights can be a charitable purpose, subject to the public benefit requirement being met. Case law relating to public benefit precludes purposes directed to changing the law being charitable, however desirable such changes might seem. After carefully considering the purposes of the Human Dignity Trust, we have concluded that they are not exclusively charitable in law. We recognise and respect the legal arguments made by the Trust, but we are bound to follow the law as we understand it given the important legal principle involved.”

The full decision is available on the Charity Commission’s website. The HDT is now free to appeal the decision before the Charity Tribunal.”

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Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.

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