Human rights work has a checkered history in the world of charity law. One might have thought that this would be an area where the conception of charity in the popular imagination dovetailed with the public benefit that is the litmus test for qualifying in law as a charity. But that is not so. A recent case in the United Kingdom could, however, help change the legal landscape.
Things, seemingly, got off on the right foot way back in 1898 with an Ontario Appeal Court decision, Lewis and Doerle, which held that the upholding of human rights was a recognized charitable purpose. That case said that a trust to promote, aid, and protect U.S. citizens of African descent in the enjoyment of their civil rights qualified as charitable.
Since then, however, the courts have blown hot and cold on efforts to foster, entrench or ensure enjoyment of human rights. This brings us to perhaps the most vexing issue in assessing the charitable nature of human rights work. There are a number of cases where such work has been characterized as advancing a political purpose and/or, in Canada, breaching the ITA requirements limiting non-partisan political activities. They have grappled variously with the scope of such rights, the propriety of work to influence law or conduct in foreign jurisdictions, and human rights efforts potentially being intertwined with political purposes and/or political activities.
With respect to the scope of human rights, there has been consideration of defining such rights with reference to international law and conventions or treaty obligations as well as on the basis of either constitutional provisions or ordinary statutes. The experience is mixed. Some courts are willing to look outside their home jurisdiction for the sources of these rights, while others have taken a narrower view and put more stress on domestic law.
On the question of influencing law or conduct in overseas jurisdictions, the principle that there can be public benefit from charitable work done in countries other than that in which an organization is based – which applies to all types of charitable purposes, not just human rights work – has generally been accepted where charitable efforts are devoted to addressing rights issues. This is, of course, always subject to the proviso that if such work is focused on opposing, changing or retaining legislation or policy, or mobilizing public opinion to do so, it may be considered political rather than charitable.
This brings us to perhaps the most vexing issue in assessing the charitable nature of human rights work. There are a number of cases where such work has been characterized as advancing a political purpose and/or, in Canada, breaching the ITA requirements limiting non-partisan political activities.
One of the legacies of Lewis and Doerle, and a number of cases dealing with promoting enforcement of the law, is that once a legal matter becomes settled or a social norm, it may be charitable to plump for it. Over the years, numerous other cases have also declared the subjects of attention of various groups to be controversial social issues, and undertakings to address those matters political rather than charitable. Recently, however, in courts outside Canada there are signs that such analysis is losing favour. In contrast, characterizing something as a “controversial social issue” can lead to work around it being categorized as political, rather than charitable.
A famous example of this is a Federal Court of Appeal judge having stated in the 2002 case Action by Christians for the Abolition of Torture (ACAT) v. Canada, 2002 FCA 499 (CanLII) that “I am not persuaded that the abolition of torture is an issue that is entirely uncontroversial today” – basing the statement on the word torture potentially being used to cover such matters as the death penalty and excision. This reasoning led, at least in part, to the Court upholding the revocation of Action by Christians for the Abolition of Torture’s charitable registration.
Over the years, numerous other cases have also declared the subjects of attention of various groups to be controversial social issues, and undertakings to address those matters political rather than charitable. Recently, however, in courts outside Canada there are signs that such analysis is losing favour. Notably, this August, in the case Re Greenpeace of New Zealand Incorporated , [2014] NZSC 105, the New Zealand Supreme Court held that topics addressed by an organization being controversial do not necessarily present a bar to charitable status.
More broadly, the 2014 United Kingdom case, The Human Dignity Trust v The Charity Commission for England and Wales,[2014] UKFTT 2013_0013 (GRC)(6 June 2014) , perhaps paves the way for a wholesale new approach.
The proceeding arose from the refusal by The Charity Commission for England and Wales to register a group mandated “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 “to promote the sound administration of the law”.
One aspect of the case that made it quite sensitive was the work the Human Dignity Trust was doing with respect to the criminalization of private, adult, consensual homosexual conduct in foreign states, which it addressed through support to mount legal challenges to such measures. Given this, shadowing the case was apprehension about potentially imposing contemporary Western values on countries with non-Western cultures.
Notwithstanding this, the Tribunal took a broad view of the meaning of human rights and accepted that it was an evolving term, whose meaning extended to rights set out in The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.
It also endorsed the use of litigation as a means of protecting or asserting rights, and as a way of furthering the “sound administration of justice”. Although promoting the sound administration of justice had been held charitable in Incorporated Council of Law Reporting for England and Wales v AG [1972] Ch73, its acceptance in the context of determining the charitable nature of a human rights organization appears new. A further basis of this holding was other case law saying that purposes pertaining to “enforcing the law generally” are charitable.
Concerns were raised about whether Human Dignity Trust’s use of litigation was appropriate. Moreover, the use of litigation as a technique for promoting human rights had not previously been recognized as charitable. However, it was held that the organization’s intention was only to litigate where there was a venue available to do so (on the evidence, in a large majority of the countries in question) and that use of litigation in the human rights context was analogous to the charitable nature of promoting prosecution of breaches of the law.
As to the issue of the purposes of Human Dignity Trust being potentially political, the Tribunal held that the litigation contemplated was fundamentally different from the engagement in legal proceedings that was ruled political in the 1982 U.K. case McGovern v. AG. The key difference was that Human Dignity Trust sought to determine the validity or constitutionality of legislation, whereas in McGovern the emphasis was on challenging laws.
On the question of the public benefit related to work in other jurisdictions, it was held that domestic public benefit was not required for an organization to be charitable, and even if it was, upholding human rights internationally was, on the evidence, beneficial to the public in the United Kingdom.
In short, this area of the law has seen some hopeful and helpful new developments. Perhaps developments Canadian courts can use as a template to get back to where we started from with Lewis v Doerle.
About Peter Broder
