The “public benefit” of human rights: when model charitable objects are not charitable
2 July 2024
This article was originally published in Charity Finance.
In April 2024, the First Tier Tribunal (the Tribunal) held that a charitable incorporated organisation (known as Fundamental Freedom Limited (FFL)) established to promote human rights was not charitable despite the fact that its objects reflected exactly the Charity Commission’s model objects and the Tribunal had, in the context of a different charity (see the Human Dignity Trust (HDT) case of 2013), held the same wording to be charitable. On the face of it this is a curious decision and one which we consider below in the context of public benefit and political purposes.
Charitable Status
It will be a familiar concept to most readers that in order to be a charity, an institution must satisfy a two-fold statutory test: firstly, it must be established exclusively for charitable purposes which fall within s.3(1) of the Charities Act 2011 (the Act); and secondly, those purposes must be for the public benefit. The starting point is, therefore, to identify the particular purposes of the entity and, where they are unclear or ambiguous, to use extrinsic evidence to construe them.
Given FFL’s objects were identical to the Commission’s own model purposes for charities that promote human rights, and to HDT’s objects, it must be assumed that they were not unclear or ambiguous and, properly construed, fell within s.3(1)(h) of the Act. The issue for registrability for the Commission (and subsequently the Tribunal) must, therefore, have been one of public benefit.
Public Benefit and Political Purposes
For a charity’s purposes to be for the “public benefit” they must (a) be “beneficial” (the benefit aspect), and (b) benefit the public at large, or a sufficient section of it (the public aspect). There is no presumption of public benefit when considering charitable status, rather it is a question of fact, decided upon the evidence. Whilst both aspects of public benefit were relevant in the Tribunal’s judgment in the FFL case, only the benefit aspect is considered here.
It has long been established that there is no “benefit” (in the charity law sense) in furthering the interests of a political party or seeking a change in the law or government policy whether in England or abroad. This is for various reasons including that the courts have no means of judging whether a proposed change in the law or public policy will or will not be for the public benefit (see Slade J’s comments in the leading case of McGovern v A-G [1978]).
In McGovern, the main object of the charity was to procure the reversal of decisions of governments and authorities in countries where they had decided to detain prisoners of conscience and that was held by the High Court to be a political purpose and, therefore, not charitable. However, in the HDT case, the charity was conducting litigation to establish whether certain laws were valid in light of the State’s obligations under human rights laws. The Tribunal noted that “constitutional litigation” was “fundamentally different in nature from the activities found to be objectionable in McGovern” and held that HDT’s activity was charitable.
In addition, both case law and the Charity Commission’s guidance confirm that a charity does not lose its charitable status merely because it undertakes political activities which are incidental to the charity’s purposes. If the designated purposes of a charity are exclusively charitable, then if an incidental consequence of carrying out those purposes is non-charitable (or political means are employed in order to further those purposes), the charitable status of the entity is not lost.
Charities advancing human rights tread a fine line here, particularly those which use political activities or litigation to advance their purposes. The evidence in the FFL case indicated that the charity had been established to access funding from the US for the purposes of litigation to challenge UK government policy in respect of the Covid lockdowns (which FFL considered to be “a fundamental violation of freedoms and rights”) and to raise the potential of a “Covid hoax” before the International Criminal Court. The Tribunal viewed these purposes as political purposes (describing FFL as “a political organ”) and not merely ancillary or incidental activities which were a means to achieving the advancement of human rights.
Conclusion
The Tribunal’s judgment is not always easy to follow. On the one hand it found that FFL’s purposes were “not expressed sufficiently narrowly”, but this is difficult to accept given they reflected the Commission’s model objects. We prefer to read the Tribunal’s judgment as a finding that FFL did not satisfy the test for public benefit given its activities were political and an end in themselves, rather than incidental to the charitable purposes of advancing human rights.
Whilst the FTT’s decision is not binding, it urges caution where model charitable objects are being used. Charity law in relation to human rights is changing and it is likely that more significant political means for advancing human rights are permissible now than was the case historically. However, a line still exists and charities must be able to show that their activities are “beneficial” to the public and that any political activities they engage in are merely incidental to, or a consequence of, advancing human rights and are not ends in themselves.
Sectors
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2024.