Philip Kirkpatrick: 'The regulator's decision making is deeply flawed'

The trustee of the Human Dignity Trust argues that its successful appeal to the charity tribunal exposes weaknesses at the Charity Commission

Philip Kirkpatrick of the Human Dignity Trust
Philip Kirkpatrick of the Human Dignity Trust

On 9 July, the charity tribunal reversed the refusal of the Charity Commission to register the Human Dignity Trust as a charity and directed it to rectify the register of charities, so concluding an application process that has lasted three years. HDT helps people throughout the world to challenge the legality of laws used to persecute lesbian, gay, bisexual, transgender and intersex people.

The tribunal analysed the commission's arguments carefully and rejected each one of them politely, but without equivocation. The tribunal's decision and the process of obtaining it expose deep flaws in the commission's decision-making. I am a trustee of HDT and advised it on this case.

At the heart of HDT's case is a simple and well-understood legal principle: in the hierarchy of laws, if inferior laws infringe superior ones then the inferior laws are either void or must be interpreted so as to conform to the superior ones.

That is the basis on which legislation criminalising private consensual homosexual acts between adults is consistently found to be void or unenforceable; such legislation infringes superior rights to dignity, equality and private life. HDT exists to promote those human rights and to secure the sound administration of the law.

Here are some examples of commission arguments that were rejected.

The trust's purposes were unclear

In fact, HDT had based its purposes on the commission's own recommended objects for a human rights charity.

It was necessary to state in HDT's objects what activities it would carry out to promote its objects

The requirement to specify methods within a charity's objects cannot be found anywhere in the law of charities and the proposition was rejected by the tribunal. It is an example of charity lore, rather than law, sometimes relied upon too heavily by the commission.

The commission was not satisfied that promotion of the right to human dignity fell within the scope of the advancement of human rights

This is a statement that Geoffrey Robertson QC described in The Guardian newspaper as one "that could only be made by people utterly ignorant of the subject". The commission's own independent human rights expert explained that human dignity was the founding principle of human rights and the tribunal naturally accepted the concurring views of the parties' experts on the existence of this right.

It was unclear what human rights meant in English law and objects should be restricted to the rights in the European Convention on Human Rights

The commission's own suggested objects for a human rights charity refer to the rights contained in the Universal Declaration of Human Rights and subsequent United Nations declarations and conventions. It did not take the tribunal much reasoning to agree with the concurring views of the parties' experts that human rights had a broad, common-sense meaning and it was not restricted as newly proposed by the commission. Had the tribunal decided otherwise, numerous registered charities with the commission's recommended objects would have been thrown into turmoil.

HDT existed for a political purpose

The commission relied on the 1982 case of McGovern v Attorney General, which decided that Amnesty International was a political organisation and not a charity because it sought to change the law by getting the death penalty abolished and to effect the release prisoners of conscience even if they had been detained lawfully. However, the commission, ignoring the well-understood principle of the hierarchy of laws, sought to extend the McGovern principles so that seeking to enforce superior law became a political purpose. It is obvious that McGovern did not decide that: the tribunal found no difficulty in ascertaining the real meaning of the case and recognising that HDT existed to advance human rights for the public benefit.

It would not be permissible for HDT to assist people who could afford to pay for their own legal advice

The law on this issue was made clear to the commission recently in the tribunal challenge brought by the Independent Schools Council to the commission's public benefit guidance. The law is that people in poverty cannot be excluded from benefiting, not that only people in poverty can benefit.

So much for the law (and lore); what about the process? 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. That analysis was prepared by the renowned human rights and constitutional law expert Tim Otty QC, the founder and current chair of HDT.

But the commission simply refused to accept the arguments without, apparently, taking any specialist advice. At the tribunal hearing, the commission admitted to having no expertise in human rights law and when, shortly before the hearing, the commission did provide expert evidence from a constitutional and human rights specialist, that evidence supported HDT's position.

The other reason is, I think, the commission's 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 LGBTI people. The commission's concern was evident in its submission, for which it produced no supporting evidence, that laws against same-sex relationships represent deeply embedded cultural views that must be taken into account. That unsubstantiated assertion was fallacious on numerous grounds, not least that human rights exist for the very purpose of protecting minorities from persecution arising from the views of majorities.

The failings in this case have caused HDT to give serious consideration to seeking an order that the commission pay its costs on the grounds that it has behaved unreasonably.

HDT has been successful, but it has taken more than three years - time that would have been better spent raising funds and overcoming the persecution of its beneficiaries. The process would, but for significant, free legal support, have cost HDT a vast amount of money. There must be a better way.

Philip Kirkpatrick is co-head of the charity and social enterprise department at Bates Wells Braithwaite and a trustee of the Human Dignity Trust


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