Bates Wells Braithwaite

UK 200 2013 position: 125

Bates Wells Braithwaite’s Philip Kirkpatrick acts for Human Dignity Trust

Bates Wells Braithwaite (BWB) has welcomed a decision that establishes the Human Dignity Trust’s activities to protect the human rights of LGBTI people around the world as for the public benefit. Philip Kirkpatrick, deputy managing partner and co-head of BWB’s charity and social enterprise department, acted pro bono for the Human Dignity Trust in its application to the Charity Commission and subsequent successful appeal against the Charity Commission’s decision to refuse registration.

The Human Dignity Trust argued that a charity should be free to bring or support litigation to protect victims of human rights abuses and uphold the supreme law of any jurisdiction, as set out in the relevant constitution or in justiciable treaties by which a country has agreed to be bound. Where the supreme law of a country is contravened by subordinate legislation, that subordinate legislation is void and so is not the law at all.

The Human Dignity Trus applies this well-understood legal principle in relation to laws that criminalise private homosexual conduct between consenting adults. Such laws are clear infringements of international human rights law and domestic constitutional laws and it is therefore a proper means of promoting human rights and upholding the law to bring or support litigation that will have the effect of quashing those infringing subordinate laws.

The Charity Commission had argued that the Human Dignity Trust existed to change the law, which would be a political purpose and not charitable. The Human Dignity Trust’s argument was that this completely misunderstood the nature of law in a jurisdiction bound by a supreme constitution or bound by justiciable international treaties.

The Charity Commission also argued that it was uncertain what ‘human rights’ meant in English and Welsh charity law, despite the fact that it has registered numerous charities with the purpose of promoting the rights set out in the Universal Declaration of Human Rights (UDHR) and subsequent United Nations conventions and declarations.

In allowing the appeal, judge Alison McKenna said: ‘For the reasons set out under each of the relevant issues [above], we are satisfied that the Human Dignity Trust is established for the purposes of: (i) promoting and protecting human rights as set out in the UDHR and subsequent United Nations conventions and declarations throughout the world — and in particular, but without limitation, the rights to human dignity and to be free from cruel, inhuman or degrading treatment or punishment and the right to privacy and to personal and social development; and (ii) promoting the sound administration of the law. We are satisfied that these purposes are exclusively charitable because they fall within the descriptions of charitable purposes in section 3 of the act [sections 3 (1) (h) and 3 (1) (m) (i) respectively]. We are also satisfied that they are for the public benefit. Accordingly, we allow this appeal and direct rectification of the register.’

Kirkpatrick was part of a leading team of charity and constitutional experts who brought the case to the tribunal, including human rights and constitutional law expert Michael Beloff QC of Blackstone Chambers, who conducted the advocacy, charity law expert Robert Pearce QC of Radcliffe Chambers and junior barrister Emma Dixon of Blackstone Chambers.

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