The charity tribunal decision in the case of the Human Dignity Trust revealed "deep flaws" in the decision-making process of the Charity Commission and a nervousness about dealing with matters of political controversy, according to a senior charity lawyer.
Philip Kirkpatrick, co-head of the charity and social enterprise department of the law firm Bates Wells Braithwaite, makes these points in an article in Third Sector. He is a trustee of the Human Dignity Trust and advised it on the case.
The tribunal recently allowed the appeal of the trust against the commission’s refusal to register it as a charity. The trust challenges laws in various countries that discriminate against homosexuals, arguing that they infringe rights to dignity, equality and private life guaranteed in international human rights treaties.
"The tribunal’s decision and the process of obtaining it expose deep flaws in the commission’s decision-making," Kirkpatrick writes. "The commission persisted throughout the case with untenable legal propositions and failed at every stage to take proper advice.
"Early in the process, HDT presented the commission with an analysis of constitutional and human rights law that was ultimately accepted by the tribunal."
He says that part of the reason the commission acted as it did was its "nervousness about dealing with matters of political controversy. Had HDT’s case been about preventing torture, I cannot imagine the commission reaching the same conclusion.
"But HDT deals with the matter, controversial in some quarters, of protecting the rights of lesbian, gay, bisexual, transgender and intersex people. The failings in this case have caused HDT to give serious consideration to seeking an order that the commission pays its costs on the grounds that it has behaved unreasonably."
Kenneth Dibble, chief legal adviser and head of legal services at the commission, said in a statement: "We completely reject the concerns expressed by Philip Kirkpatrick about the commission's approach to the registration of the Human Dignity Trust. We dismiss any notion that we are nervous of matters of political controversy.
"Our reasons for rejecting the charity’s registration application were based on charity law and consistent with our guidance. It is the commission’s responsibility to ensure only organisations that are legally constituted as charities are registered, a responsibility we take very seriously.
"The commission was well aware of and considered at some length and in great detail the legal and factual arguments put forward by the trust. Nevertheless, we were unable to conclude that its objects were cast in charitable form or that the principal activities of the trust were sufficient to support the charitable purposes as argued for."
Dibble said parliament clearly intended the concept of charity to be developed through decisions of the commission, the tribunal and the courts. The tribunal was meant to be a low-cost route to justice and "pursuing tribunal cases can create a financial burden to those who choose to instruct counsel".
He added that the decision by the tribunal was not a binding precedent, which could be set only by decisions in the Upper Tribunal and the courts.