...keeping human rights in
14 June 1999
1 February 2013
15 January 2013
14 January 2013
9 December 2013
22 January 2013
Charities must now prepare now for the incorporation of the Human Rights Convention into domestic law in October 2000. The convention is going to impact on all areas of charity law, from the criteria required to gain charitable status, to the way charities operate.
Under Section 6 of the Homan Rights Act, it will be unlawful for a public authority such as the Charity Commission to act contrary to the convention.
Like other public bodies, the commission is already reviewing its practices and procedures to ensure that they comply with the convention - no mean undertaking, given the nature and scope of the commission's work. For example, it has a policy, for reasons of conflict of interest, that its staff should not act as charity trustees. Arguably, however, this policy will contravene the rights of freedom of expression and freedom of assembly and association embodied in the convention.
All charities could be said to be public bodies, but until this issue is definitively resolved it is unclear whether they will be regarded as public authorities under the Act. In my view, this is unlikely. However, it is likely that charities carrying out functions of a public nature, such as those providing services under local authority contracts, will fall within the scope of the Act.
In addition to looking at the way charities work, the commission is carefully considering the Act's effects on charity law. It is certain that, as a result of the Act, the commission will find itself obliged to register as charities some bodies which, at present, are not eligible for charitable status.
For example, currently, in order to constitute a religion that is capable of being a charity, there must be belief and faith in a deity (re South Place Ethical Society  1 WLR 1965). It was on this basis that Scientology was rejected as a religion. However, Article 9 of the European Convention recognises the right to freedom of thought, conscience and religion, and the right to manifest one's religion or beliefs (subject to certain limitations).
Article 11 gives the right of freedom of association and expression, and Article 14 prohibits discrimination on religious, political and other grounds in the exercise of convention rights. A combination of these rights will probably mean that the commission will no longer be able to rely on the narrow criteria established in re South Place Ethical Society.
Ironically, it seems likely that the list of groups now seeking to claim charitable status may include a number of human rights organisations. At present, the law states that charities must be established for the benefit of the public and it has long been accepted that it is Parliament, rather than the courts, that decides what is in the public interest. On this basis, human rights groups that campaign for a change in the laws of foreign countries to outlaw human rights abuses have been denied charitable status. However, as English law now recognises a wide range of human rights, it should follow that organisations seeking to change the law so that citizens in other countries enjoy such freedoms and rights will now be eligible for charitable status.
There is much debate as to whether the Act has already changed charity law. There is a perfectly respectable argument to the effect that Parliament, by enacting the new legislation, has determined that the rights referred to in the Act are for the public benefit and that the essentially administrative reasons behind the delay in bringing its provisions into force do not detract from this. It remains to be seen if the commission shares this view.
Ann-Marie Piper is partner and head of the charities group at Paisner & Co.