Corporate Philanthropy and Social Responsibility in Latin America

Charity, Politics and the Human Rights Act 1998: Chasing a Red Herring?

The International Journal
of Not-for-Profit Law

Volume 4, Issue 1, September 2001

by Graham Moffat *

A. Introduction

This paper is primarily concerned with the implications of the Human Rights Act (HRA) 1998 for certain aspects of the law that affect organisations established to pursue what in English law are known as charitable purposes.  Charities, as such organisations are commonly termed, are in general terms those not-for-profit organisations which can satisfy the state, in the form of a public body called the Charity Commission, [1] that they meet specified criteria. [2]   The criteria are derived from and are to be found in case law as developed over a period of some 400 years. In short the definition of charity is a creature of the common law.

In general terms the HRA 1998 may impact in a variety of ways on charities. In certain circumstances charities themselves may be deemed to be exercising functions of a public nature [3] such as providing residential care facilities for the mentally handicapped via a contractual relationship with local authorities.  In those circumstances the acts or omissions of the charity itself may come within the scope of the statute. [4]   Important as this consequence of the enactment of the HRA 1998 is for charities and for charity law, this paper concentrates instead on certain aspects of the eligibility of organisations for charitable status rather than on the implications of any public functions that they may perform.  In particular the paper considers how far if at all the HRA 1998 may or should impinge on one particular aspect of the definition of charity, the aspect that for shorthand purposes we might call the political disqualification rule. [5] .  There are two distinct facets to this rule: the most restrictive of these states that any organisation having a political purpose as one of its main objects cannot qualify as a charity. [6]   The particularly contentious element in this aspect of the rule is that which broadly states that it is a political purpose to seek to procure a reversal of government policy or a change in the law of this or any other country.  Confusingly for lawyer and layperson alike this prohibition does not mean that a charity cannot undertake any political activity.  In a leading and much quoted case McGovern v Attorney-General [1981] 3 All ER 493 Slade J states the following two propositions (at 511):

First, if any one of the main objects of the [organisation] … is to be regarded as ‘political’…, then … the [organisation]  … cannot qualify as being charitable. Second, however, if all the main objects … are exclusively charitable, the mere fact that the trustees may have incidental powers to employ political means for their furtherance will not deprive them of their charitable status.

However, and here we encounter the second aspect of the rule, not all political means are necessarily acceptable.  The Charity Commissioners have published guidelines that indicate what types of activity may be acceptable and to what degree the activities may be pursued within the confines of charity law.  The guidelines offer some flexibility to charities but appear to place a strong emphasis on ‘style’- being restrained rather than strident in advocacy.  Moreover a theme in the guidelines is that charities must strive for objectivity in their campaigning or lobbying activities. [7]

Whilst the principal focus of this paper is on the implications of the HRA 1998 for one admittedly narrow aspect of a specific area of law, it will also address some rather broader questions.  In particular it will be necessary to refer briefly to the way in which the HRA 1998 may affect common law doctrine.  It is evident that whereas the HRA 1998 in ‘bringing human rights home’ may be a novel constitutional innovation it would be misleading to assume that the European Convention was without previous effect or recognition in English Law [8] .  How far, therefore, the new statute is seen to require a completely fresh approach to rights-based claims will be a significant factor in determining its impact.  This is particularly so where, as in the present instance, long-established common law rules are at issue. [9]    It will also be relevant to discuss how far the HRA 1998 circumscribes the discretion of the state where, rather than proscribing particular activity, it is instead granting privileges to those organisations that undertake a particular form of activity and in a particular manner.

In addressing any of these issues one is purporting to enter the realm of the soothsayer.  There is inevitably a degree of uncertainty as to how our courts and administrators will apply this novel jurisdiction or indeed, to introduce a normative element into the debate, how they should apply it.  That said, judicial comment is replete with metaphors both geographical – Convention rights as ‘the magnetic north’ of all our law [10] – and geological – human rights ‘soak[ing] through and permeat[ing] broad areas of … law’ [11] – all emphasising the likely pervasive influence of the jurisdiction.  Assuming for the moment that the decisions of the judiciary will attempt to reflect the spirit of the Convention rights our process of enquiry will also therefore require some exploration of the rationale underpinning both the statute and certain Articles of the European Convention.

Paradoxically whilst the political disqualification rule is predominantly a creature of the common law, a key element in the underlying rationale of the rule is to be found in the relationship between the legislative function of parliament and the role of the courts.  The rule, it is sometimes claimed, is justified by the need to respect and maintain a constitutional settlement that recognises the sovereignty of parliament and the political neutrality of the judiciary.

The proposition that the courts must not usurp the function of the legislature was reaffirmed in McGovern v Attorney General [1981] 3 All ER 493 at 506 where Slade J purported to find support in dicta of Lord Diplock in Duport Steels Ltd v Sirs [1980] IRLR 112 at 117: [12]

Lord Diplock pointed out that certain trade union legislation might in actual operation have injurious consequences that Parliament had not anticipated at the time when the statutes were passed.  However he said: ‘But if this be the case it is for Parliament, not the judiciary, to decide whether any change should be made to the law as stated in the Acts.’  And he referred to ‘public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law…’

It is this adherence to a notion of neutrality or impartiality that is said to prevent the court from deciding, for instance, whether some change in the law or in government policy is for the ‘public benefit’.  Those tasks, it is said, are for parliament and government and not the courts.   As will be seen below in section C (2) this explanation may be said to beg the question as to whether advocacy of a change in law or policy is for the public benefit. [13]   Nevertheless the point to be emphasised here is that a concept of ‘public benefit’ is central to the legal definition of charitable purpose in the sense that a purpose cannot be charitable unless it is for the ‘public benefit’.  A key issue therefore is to explore how, if at all, the enactment of the HRA 1998 may have changed the terms of the debate in this area.  To do this it is necessary to have some appreciation of the structure and the purposes of the statute and, in particular, how it may have adjusted the terms of the constitutional relationship between the legislature and the courts.

B. Redefining the Relationship: government, courts and the HRA 1998

B.1 Legislation and the HRA 1998

The principal formal purpose of the Human Rights Act 1998 is to ‘incorporate’ into UK law – some might prefer the terms ‘embrace’ or ‘transform’ – most of the substantive provisions of the European Convention on Human Rights. Technically the Act does not incorporate the Convention fully since under s 3(2)(b) primary legislation of the UK parliament will prevail in domestic courts over the Convention rights where the two are incompatible.  The apparently restrictive effect of this approach is significantly circumscribed by a powerful rule of statutory interpretation which provides that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’ (s 3(1)).  In a public lecture the Lord Chancellor, Lord Irvine, made explicit the extent to which it was expected that the courts would adopt a ‘purposive construction’:  ‘the courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so’. [14]

In those probably rare circumstances where compatibility proves impossible the superior courts are empowered to issue a declaration of incompatibility (s4 (2)).  It must be emphasised that the declaration does not affect the validity, continuing operation or enforcement of the offending provision; the primary or subordinate legislation remains in place and it will be for the government of the day to respond.  It may choose to take no action but alternatively it may invoke a special procedure – the fast track procedure – to amend the offending legislation (s10 (2)).

It is evident that the statute envisages a strongly enhanced role for the courts in relation to interpretation and, one might almost say, validation of legislation.  The crux of the matter here is that interpretation of the meaning of Convention rights and their applicability in our domestic law rests exclusively with our courts.  It is true that they are directed under HRA 1998, s 2 to ‘take into account’ the judgments, decisions, opinions and declarations of the several existing Human Rights bodies at Strasbourg, but our courts are not bound to follow that jurisprudence.  They are theoretically free to develop their own interpretation of the principles reflected in the Convention rights.  They are also at liberty to draw upon the experience of Commonwealth jurisdictions such as Canada and New Zealand, as well as that of the United States.  Indeed it was argued during the passage of the legislation that the jurisdiction under section 2 is tantamount to ‘creating an entirely new Bill of Rights’ [15]   The approach in section 2 can alternatively be explained as merely being consistent with the doctrine of ‘margin of appreciation’ accorded to states by the human rights jurisprudence emanating from Strasbourg.  Under this doctrine states are allowed a limited discretion in determining the relationship between a Convention right and the exceptions that qualify the scope of many of the rights. [16]

It is important, however, not to overlook the fact that formally, in terms of the doctrine of separation of powers, pre-eminence of parliamentary sovereignty is retained.  Notwithstanding possible ‘declarations of incompatibility’ by the courts and a legislative response via ‘fast track procedures’ the government of the day still retains the authority to enact and sustain legislation that is in breach of a Convention right.  Moreover this possibility was expressly recognised by the Home Secretary at the Report stage of the Human Rights Bill.  There he cited existing abortion legislation as an illustration of circumstances where the government of the day may not wish to amend the law even if faced with a declaration of incompatibility. [17]   Nevertheless, whatever may be the formal position, and the abortion example suggests that the form is not just a constitutional fig leaf, it seems likely that the involvement of courts in determining matters of social and political controversy will be unavoidable.   It is therefore not surprising that commentators such as Ewing have felt able to conclude that in reality ‘the Human Rights Act 1998 represents an unprecedented transfer of political power from the executive and the legislature to the judiciary, and a fundamental restructuring of our political constitution’. [18]

It is this enhanced role for the courts that may provide some purchase for the proposition that the HRA 1998 potentially undermines the political disqualification rule.  As previously mentioned one purported rationale for the rule is that the courts should not be seen to usurp the function of the legislature. [19]   A further although linked rationale for the political purpose aspect of the rule as currently applied is that it helps sustain a perception of judicial impartiality by absolving the courts from having to adjudicate on whether a politically controversial purpose is for the public benefit. [20]   Insofar as the case law authorities which constitute the current rule are premised upon the perceived need to protect a perception of impartiality by avoiding involvement in commenting on the benefit of controversial purposes or of legal change, those authorities may be susceptible to being reconsidered as a result of the ‘new’ role for the courts under the HRA 1998.

Consider, for instance, the position where the courts are required to decide whether some act of a public authority or some statutory provision infringes one of the several Convention rights that are qualified by exceptions.  These exceptions provide a means whereby in some degree the protection of the rights of one person has in effect to be balanced against the interests of the community as a whole.  It is the judiciary that now has the ultimate responsibility for determining where that balance lies.  At the very least one might argue that decisions such as these might involve the courts in adjudicating on matters of acute political controversy.  We could then re-characterise this judicial role into charity law terminology: are the courts being required to determine whether the particular legislative provision and/or its interpretation by the public authority is for the overall benefit of the community?  Yet in some degree this is the very task, in the context of the political disqualification rule, that seemingly the courts have sought to avoid in the interest of sustaining a stance of impartiality.  This point is considered further in section C of this paper.

B.2 Common law and the HRA 1998

The implications of the HRA 1998 for the role of the courts are not restricted to those where the status of legislation is at issue.  If this were so, then the whole area of the interpretation of principles of common law would be left unaffected except in so far as the courts already interpret those principles by reference to principles of human rights comparable to those stated in the Convention.  This matter is particularly significant for our immediate purposes, since although the jurisdiction of the Charity Commissioners is defined by statute in the Charities Acts 1992 and 1993, in the context of charity and politics it is principally the interpretation and application of common law rules by the Commissioners and the courts that would be at issue.

What then is the position for a rule of common law that may be interpreted as potentially offending against one of the Articles of the Convention?  Perhaps more importantly is there any means by which the validity of such a rule could be tested in the courts?  Here we must turn to HRA 1998, s 6. Under that section as from 2 October 2000 it has been unlawful for ‘public authorities’ to ‘act in a way which is incompatible with a Convention right’ (s 6(1)).  The definition of a public authority includes (s 6(3)(a)) ‘a court or tribunal’ and (s 6(3)(b)) ‘any person certain of whose functions are of a public nature’.  Whatever debate there may be about institutions that fall within this definition it is clear that the criteria in s 6(3)(b) will encompass a public body such as the Charity Commissioners.

The practical point here is that in a dispute involving a point of common law between a private party (e.g. a charity) and a public body such as the Commissioners the courts are bound to interpret that law in a manner which is not incompatible with Convention rights. [21]   It is this area of jurisdiction that can potentially bring the political disqualification rule to the forefront of litigation.  Alternative if unlikely routes by which the politics issue might be raised could be where the Inland Revenue disallows a claim for tax relief because of expenditure on political purposes – i.e. not made wholly and exclusively for charitable purposes [22] – or where the Commissioners propose to exercise a statutory power [23] to remove trustees from their posts, for instance, for authorising such expenditure.

To pose the issue in more concrete terms it is conceivable that at some point the courts will be asked to decide whether rules (i) debarring from charitable status an organisation with political purposes and (ii) imposing restrictions on political campaigning by charities are compatible with certain of the Convention Rights, in particular with Article 10 which seeks to protect freedom of expression. [24]

Article 10 : Freedom of Expression.

  1. Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The right to freedom of expression is, however, one of the qualified rights under the Convention and the broad sweep of the language is modified by the terms of the second clause of Article 10.

  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The potential scope and limitations of Article 10 are considered further in Section C. [25]   First, however, it is necessary to consider more closely what principles might guide the interpretation of the new rights-based jurisdiction.

B.3 Interpreting Convention Rights

Speculation as to whether the new jurisdiction under the HRA 1998 can or should be applied to challenge the existing political purposes and political activity rules would be fruitless without some inkling of how the courts are likely to respond to the interpretative task that they have been given.  In carrying out this task the courts are of course not operating in an area devoid of guidance.  They are able both to have regard to the purposes that underpin human rights legislation and, as indicated previously, to draw upon the interpretative tools developed inter alia by the European Court of Human Rights (ECHR).

Turning first to the purposes of human rights legislation it can be claimed that its predominant purpose is to provide individuals with a raft of rights that encompasses the whole area of social activity.  This bald statement does not take us very far.  The picture can be made somewhat clearer if we elaborate slightly by emphasising that fundamentally we are referring to the protection of the human rights of individuals against abuse of power by the state.  Some might wish to go further and argue that the intent of human rights legislation is to place the protection of individual rights at the centre of our legal and social culture albeit subject to the qualification, to adopt a current political litany, that responsibilities as well as rights should be emphasised.  Klug and Starmer, for instance, suggest that the although the major purpose of the HRA 1998 is to protect individuals against abuse of public power ‘it is also about building a fair and decent society, taking account of contemporary realities’. [26]

The principal challenge for human rights adjudication then is to achieve the appropriate balance between the rights of individuals and the interests of the state and of other individuals.  It is here that recourse can be had to the interpretative principles that have been fashioned by the ECHR.  The overriding principle has been that courts should eschew a narrow interpretation of Convention rights and instead seek to give full weight to the object and purpose of the Convention.  In Handyside v United Kingdom, for example, the ECHR states that Convention concepts are to be interpreted in a spirit of ‘pluralism, tolerance and broadmindedness without which there is no “democratic society”’. [27]   As Grosz et al point out this approach has led the Court to treat the Convention ‘as a living instrument which must be interpreted in the light of present-day conditions’ and to lean towards making its safeguards ‘practical and effective’. [28]

In determining whether safeguards are ‘practical and effective’ the ECHR has recognised that in certain circumstances it is not sufficient for the state merely to abstain from interference in the attempted exercise of a convention right.  On the contrary genuine substantive protection of human rights may require the state to undertake a positive obligation, even to the extent of imposing obligations and penalties on other private parties.  Article 10 (Freedom of Expression) is considered in some detail below but equally it has been said of Article 11 (Freedom of Association) that ‘genuine effective freedom of peaceful assembly cannot  … be reduced to a mere duty on the part of the State not to interfere. … Article 11 sometimes requires positive measures to be taken’. [29]

When it comes to establishing the extent of any positive obligation and thereby striking an appropriate balance between protecting individual rights and recognising other claims the text of the Convention articles themselves provide guidance.  It is here that the wording of the limiting clauses in qualified rights such as that in Article 10 comes clearly into account.  As will be seen in the next section of this paper the interpretation and applicability of the qualifying factors in Article 10(2) are central to analysis of the implications of the HRA 1998 for the political disqualification rules.

C. Implications for Charity Law

In order to assess the implications for charity and politics of the HRA 1998 and its ‘incorporation’ of most of the Convention rights it is convenient to separate discussion into two categories.  These might loosely be termed the direct and indirect effects on the political disqualification rules.  For the avoidance of doubt it must be emphasised that these are terms of convenience and have no necessary connection with the terms of art associated with the relationship between EU law and national laws.  In the context of this paper, indirect effect principally concerns the ways in which the HRA 1998 might be seen to impinge on the underlying rationales for the charity and politics rules. [30]   By contrast the notion of direct effect refers more to the question of whether the statute may be viewed as affecting the letter and scope of the exclusionary rules themselves.

C.1. Direct effect of HRA 1998

There are at least two lines of argument that might be advanced in support of the proposition that the HRA 1998 has directly affected the rule that an organisation with a political purpose as one of its objects cannot be a charity.  One argument is of rather limited compass.  It concerns whether, specifically in the context of a purpose to promote human rights, the interpretation of what is for the public benefit as defined in the law of charity is directly modified by the enactment of the HRA 1998. In  McGovern v Attorney General [1981] 3 All ER 493 Slade J upheld a 1978 decision of the Charity Commissioners to refuse to register as a charity Amnesty International Trust whose objects, amongst otherwise charitable purposes, included (1) attempting to secure the release of prisoners of conscience, and (2) procuring the abolition of torture or inhumane or degrading treatment or punishment.  Although acknowledging (at 519) that ‘Amnesty International … is performing a function which many will regard as being of great value to humanity’ Slade J concluded that the disputed purposes were ‘substantially political’ not ‘charitable’. [31]   The first proposition of this paper then is to suggest that the authority of McGovern v Attorney General on this point needs to be reconsidered in light of the HRA 1998.  The second and more fundamental ‘direct effect’ proposition to be considered is whether there are aspects of the political disqualification rule itself, not just its current interpretation, that are more generally incompatible with Article 10 of the European Convention.  Each of these propositions will be considered in turn.

(a) Human Rights and ‘public benefit’

Although not decided precisely on the point, it did appear following McGovern v Attorney General that the political purposes rule seemed to have precluded recognition of ‘the promotion and enforcement of human rights’ as being a charitable purpose.  It can be argued that should the issue fall to be considered afresh then, following past practice, the enactment of the HRA 1998 should now lead to a recognition of the purpose as being charitable.  The past practice is to be found in a 1983 statement of the Charity Commissioners.  Then, following on from the enactment of the Race Relations Act 1976, the Commissioners confirmed that they had decided to reverse their previous policy on the charitable status of ‘the promotion of racial harmony’.  Prior to that date, they had considered themselves bound by Re Strakosch [1949] Ch 529 where it was held by the Court of Appeal that the appeasement of racial feelings (between the Dutch- and English-speaking sections of the South African Community) was a political purpose and therefore not charitable. The Commissioners explained their policy reversal in the following way: [32]

We took the view that Re Strakosch did not freeze the appeasement of racial feeling as a political purpose for all time. In England and Wales the question of whether it would be beneficial to the public to appease racial feeling appeared to be no longer a political one as legislation had been passed in an attempt to enforce good race relations.

In similar vein it can be argued (i) that the passage of the HRA 1998 and its acceptance by the various political parties means that the question of whether it would be beneficial to the public to recognise and enforce Convention rights is no longer a political one under charity law; and (ii), to adapt the language of the 1983 Report and substituting ‘human rights’ for ‘racial equality’, it is unlikely that ‘any substantial body of opinion in England and Wales would not consider [the promotion of human rights] to be a purpose beneficial to the community.’ [33]

This would not quite resolve the matter.  There would still remain the technical legal question as to whether such a purpose – ‘the promotion and enforcement of human rights’-, even though for the public benefit, can satisfy the anachronistic legal criteria for being a charitable purpose.  Can that purpose satisfy the requirement that by analogy with other established charitable purposes it is within ‘the spirit and intendment’ of the preamble to the Charitable Uses Act 1601?  Even aside from the plentiful supply of persuasive analogues in McGovern v Attorney General itself it could clearly be argued that the purpose is analogous with, for instance, ‘the mental and moral improvement of man’. [34]

Whilst the contested purposes in McGovern itself – ‘procuring the abolition of torture or inhuman or degrading treatment’ and ‘attempting to secure the release of prisoners of conscience’ – were more specific than the ‘promotion of human rights’ they are themselves broadly consistent with respectively Articles 3 and 9 of the European Convention. [35]   As such it is arguable, at least as regards the application of those purposes in the UK, that they could now be recognised as charitable since they are by analogy within ‘the spirit and intendment’ and do not infringe any of the exclusionary criteria propounded in McGovern itself.

The argument may be less persuasive where, as in McGovern, the purposes are construed as seeking to procure changes in the laws of foreign countries or a reversal of the policies of foreign governments.  Even here, however, it can be argued that since the test to be applied is whether the purposes are of public benefit from the viewpoint of the ‘community of the United Kingdom’ [36] then the enactment of the HRA 1998 has changed the perception of what constitutes benefit from that evident in the approach adopted by Slade J in McGovern ([1982] Ch 321 at 338). [37]  It might even be contended that speeches of government ministers seeking to imbue foreign policy with an ethical dimension, a key element of which is to encourage recognition of human rights internationally, lend weight to the argument.

(b) Direct Effect and the Political Disqualification Rule: A Proposition

Even assuming that the above proposition concerning ‘promotion of human rights’ as now constituting a valid charitable purpose is sustainable, it represents at best in one specific area a relatively minor easing of the application of the political disqualification rule.  This development would not alter the letter of the rule as it currently exists.  Extending the notion of public benefit to include promotion of human rights does not therefore address the more fundamental ‘direct effect’ propositions that may be advanced in the light of the HRA 1998.  These are that as presently interpreted the political disqualification rule, or at least elements of it, are incompatible with Article 10 of the European Convention, and that as a public body under the HRA 1998, s 6 the Charity Commission should not seek to apply nor the courts to enforce those aspects of the common law rule that infringe the Convention right.

The basic proposition here is quite straightforward.  The core of the argument is that the phrase ‘everyone has a right’ in Article 10 carries, on a plain reading, no explicit or implicit limitation to exclude particular persons or categories.  It therefore follows that since ‘everyone’ is interpreted as including organisations as well as individuals [38] then charities should have the right to exercise freedom of expression consistent with Article 10.  Although the distinction between ‘freedom of expression’ and ‘freedom of action’ may not always be clear, it is evident that the former certainly extends to most forms of political speech and most aspects of campaigning activity identified by the Charity Commissioners in their guidelines.  The fact that an opinion may be expressed in a polemical or aggressive tone does not negate the protection of Article 10. [39]

The only express limitations on the extent of the Convention right are those to be found in Article 10(2).  It may therefore be argued that unless in any given instance the application of the political disqualification rule can be justified under Article 10(2), then the rule infringes the right to Freedom of Expression as defined in Article 10 (1) of the Convention.  Consequently the Charity Commissioners and the courts should cease to apply the rule as a distinct disqualifying factor.  Acceptance of this proposition would not automatically justify the granting of charitable status to any and every political organisation.  Decisions on the charitable status of an organisation, one of whose purposes is deemed to be a political purpose, would still prima facie depend on whether the applicant organisation had some purpose, other than a political one, that would be recognised as charitable.

(c) Direct Effect and the Political Disqualification Rule: A Refutation?

Even aside from the Article 10(2) qualification there are a number of responses and defences that might be made to the proposition that Article 10 has a direct and limiting effect on the political disqualification rule.

One response is that the proposition is based on a false premise about the nature of charity.  That proposition assumes that charity and political activity or political purposes can coexist within the one organisation whereas it may be contended that the opposite is the case.  Put simply politics is the antithesis of charity.  If you allow an organisation with political objects to be a charity then, so the argument might run, you are stripping the concept of charity of an integral element.  The antithesis argument is in essence no more than an assertion and one that invites the riposte that charity and politics are inextricably linked [40] or even that they share the quality of being for the public benefit. [41]   Whilst one might accept as a premise that an organisation with exclusively political purposes (e.g. a political party) cannot be a charity because it has no purposes that would on any view be recognised as charitable, that is not decisive.  It does not explain why an organisation with purposes that are unquestionably charitable should be denied the legal status of charity because it also has an additional object such as seeking a change in the law or government policy and thereby infringes the political disqualification rule.  Moreover, the fact that charities are permitted under charity law to undertake a degree of political campaigning can be argued as tending to rebut the antithesis argument.  In short that argument begs the question as to the rationale for distinguishing between charity and politics.  Of itself therefore it is an unsatisfactory response to the ‘direct effect of Article 10’ proposition.

A second response, adopting a somewhat comparable line of reasoning, is just to argue that the proposition is misconceived.  There is in effect no restraint on freedom of expression.  Any organisation is free to pursue political purposes and to campaign to any extent within the general laws of the state.  It can carry out its purposes unhindered so long as it does not seek to come within the definition of charity.  In a sense underpinning this response is a view that the process of seeking charitable status involves two distinct stages.  Stage 1 occurs where a decision is taken to set up some organisation where one or more of the proposed objects constitutes what under charity law might be construed as a political purpose.  At this point there is no constraint on freedom of expression.  Such constraints as exist only come into play at stage 2 where an organisation decides to seek charitable status and the benefits both legal [42] and fiscal that accompany it.  The most significant of these benefits is the existence of certain fiscal privileges that are granted to charities and whose value has been estimated by the Inland Revenue to be in the order of £ 1.75 billion per annum. [43]   Then, so the argument runs, if the organisation wishes to take advantage of the benefits it must be prepared to accept the constraints that accompany charitable status.

An analogy might be drawn here with an individual who joins a political party or with a company that subscribes to a trade association.  In both instances one might expect that there would be rules which impose some limits on members’ freedom of expression.  The person, whether individual or organisation, has voluntarily accepted the constraints that accompany a particular status and its corresponding benefits.  In similar vein it may be argued that if an organisation opts for charitable status and its benefits then it must accept the attendant limitations and accountability obligations imposed by the state.  Provided this process is exercised without any discrimination between organisations with different political views or purposes then, so the argument runs, there is no infringement of Article 10 or indeed of Article 14.  One response to these analogies with private ordering is to contend that they equally are misconceived since there the bodies concerned and the relationships involved are matters solely of private law.  Any interference with freedom of expression is voluntarily assumed and without any involvement of the state.

There is a more fundamental objection to the contention advanced in the previous two paragraphs that there is no conflict between the political disqualification rule and Convention rights.  The objection is that the line of reasoning to support the contention concentrates solely on form and ignores matters of substance.  The matters of substance here are those legal privileges and fiscal benefits that are associated with the acquisition of charitable status.  Let us assume for the moment that for all practical purposes the benefits associated with registration as a charity mean that charitable status may be at least highly desirable, perhaps even necessary, for the effective functioning or even existence of an organisation.  Let us further assume that the organisation is excluded from charitable status solely on the grounds that one of its objects is political.  Do we therefore reach the position that the organisation must surrender its freedom of expression if it is to exist?  If so, is this therefore contrary to the substance of Article 10?  In particular would this outcome subvert the interpretative principle referred to earlier that the safeguards for Convention rights must be ‘practical and effective’? [44]

We have no direct answer to these questions but consider, for instance, the following statement from the United States Supreme Court in Perry v Sinderman, a case concerned with access to employment:

[The government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech.  For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalised or inhibited.  This would allow the government to ‘produce a result which [it] could not command directly’ (Speiser v Randall 357 U.S. 513 at 526). [45]

Whilst there has been no Article 10 litigation specifically on the point at issue in this paper, the case of Bowman v UK offers some support for the view that Article 10 is concerned with substantive and not simply formal freedom of expression. [46]   In that case by 14 votes to 6 the European Court of Human Rights held that a statutory limit of £5 on electoral expenditure by third parties was equivalent to a total ban on their being able to communicate information to the electorate.  The analogy is not wholly apposite in that a case such as Bowman, unlike the charity/politics example, does not involve the state providing privileges in return for accepting a restriction on freedom of expression.  Nevertheless one of the points argued by the UK government in Bowman does have some illustrative value.  The Court rejected the government argument that Mrs Bowman could have used alternative means, observing that ‘[it] is not satisfied that, in practice, [Mrs Bowman] had access to any other effective channels of communication. … Although she could herself have stood for election and thus become entitled to incur the statutory amount of expenses allowed to candidates, this would have required her to pay a deposit of £500, which she would in all probability have forfeited.’ [47]

Transposed to the context of the statutory registration requirement for charities the argument could be developed along the following lines.  If a registration requirement is not of a purely or substantially formal character but rather that failure to satisfy it imposes a degree of practical hindrance to an organisation’s ability to operate, then the requirement is potentially vulnerable to an action invoking an infringement of Article 10. [48]   Whether failure to achieve registration as a charity would in practice be deemed to affect the freedom of expression of an organisation would be a question of fact, as was the decisive issue in Bowman.  This effect may not be easy to establish.  Whilst the reason for seeking charitable status may often be to gain the benefit of the privileges, it must be open to question in any given case how far organisations would be hindered to any serious degree in carrying out their operations.  Organisations can, for instance, arrange for their campaigning activities to be hived off to a separate legal body without endangering the charitable status of the ‘parent’ organisation.  Such organisational fission is commonplace. [49]

It is, of course, an open question whether the ‘direct effect proposition’ can be disposed off by simple recourse to the purported refutations outlined in this section.  Even if the refutations are surmounted this simply takes us forward to the next stage of the argument, the possible justifications for restricting freedom of expression.

(d) Direct Effect and the Article 10(2) qualifications

Freedom of expression is not absolute under Article 10.  As previously mentioned, under paragraph 2 of that Article a state may impose ‘such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’ for the several purposes listed in Article 10(2). [50]   Therefore even if one were to conclude that freedom of expression of an organisation was in principle violated by the application of the political disqualification rule that judgement would not resolve the question as to whether the rule was in breach of the Convention right in Article 10.  To do this it is necessary to refer to the exceptions in Article 10(2) and their interpretation by national courts and by the ECHR.

(i) ‘Margin of Appreciation’ and ‘Proportionality’

The requirement that the state must demonstrate that any interference with freedom of expression is ‘necessary in a democratic society’ has generated an extensive volume of case law under the European Convention. [51]   The jurisprudence of the ECHR has had to address the question of where to strike a balance between a primary right such as freedom of expression and competing societal and individual rights.  It is evident that in addressing this question the ECHR has recognised that national authorities ‘by means of their direct and continuous contact with the vital forces of their society’ are better placed to form a judgement than a Strasbourg court more remote both geographically and in terms of local knowledge.  A significant outcome of the case law has therefore been to acknowledge that Article 10(2) leaves a margin of appreciation to states and that ‘the task of the European Court is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation’. [52]

This approach does not mean that national courts are left in a directionless void or have untrammelled discretion.  The ECHR has established a general test to be applied by the national courts in determining what is ‘necessary in a democratic society’.  In order for a restriction on the primary right to be ‘necessary’ within the meaning of Article 10(2) it must be prescribed by law and there must be a ‘pressing social need’ to protect the competing interest. [53]   Furthermore courts are expected to apply the principle of proportionality in exercising their jurisdiction. Again to quote the decision of the Court in Handyside: [54]

The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’. … This means, amongst other things, that every ‘formality, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.

For national courts the principle of proportionality therefore provides a key interpretative tool for evaluating the justification for invoking any of the Article 10(2) exceptions.  Here at least, our courts will be treading an increasingly familiar path given the refinements to the Wednesbury unreasonableness doctrine developed in the exercise of judicial review where fundamental rights have been at stake. [55]   We can determine from the jurisprudence of the ECHR that to satisfy the proportionality test any measures taken by a state and designed to meet the legislative or other objective must not be arbitrary or unfair or based on irrational considerations.  Moreover the means used to restrict freedom of expression must be no more than are necessary to accomplish the legitimate aim of the restriction.  Finally, in the context of freedom of expression, it does seem that the burden on the state of demonstrating justification for a restriction rests heaviest where the restriction is imposed on political expression. [56]

Turning then to the specific restrictions in Article 10(2), the only ones relevant for the purposes of this paper are those ‘for the protection of the reputation or rights of others’ and ‘for maintaining the authority and impartiality of the judiciary’.

(ii) ‘for the protection of the reputation or rights of others’

In Bowman an argument based on this qualification to freedom of expression was advanced to justify the low statutory financial limit (at the time £5) on third party funding of candidates in UK general elections.  The argument was that the restriction was justified as it was intended to advance the legitimate aim of securing equality of access to the electorate between election candidates.  In other words the statutory limit on expenditure was imposed to protect ‘the rights of others’.  The Strasbourg court accepted that the aim was legitimate but the majority concluded that the restriction in question ‘was disproportionate to the aim pursued’. [57]

An analogous argument might be developed in relation to political purposes and political campaigning by charities.  Can the state legitimately argue, for instance, that charities would obtain an unfair advantage in political campaigning by virtue of their tax advantages and, perhaps also, their moral status? [58]   In short the restriction is imposed to protect the rights of others who do not benefit from the same privileges as do charities.  Whether the restriction is necessary or appropriate is a matter of evidence and of judgement.  Thus, charities may respond by arguing, for example, (i) that commercial organisations in receipt of tax benefits or government subsidies are not usually prevented from engaging in the political process; (ii) that the influence of charities is minor compared with that of commercial organisations in receipt of those benefits, and (iii) that tax considerations are irrelevant to the primary question of whether an organisation should be registered as a charity. [59]   A complicating factor relevant both to the argument of principle and to that of proportionality is that, as already noted, the state does allow charities to be involved in a degree of political campaigning (see d (iv) below for further discussion of the implications of this practice for Article 10)

The discussion above relates principally but not exclusively to campaigning rather than to the issue of whether an organisation with a political purpose can be charitable.  More directly touching on this latter point is the contention advanced on occasion on behalf of the state that to allow organisations with a political purpose to be granted charitable status would damage the reputation of charity in general. [60]   Whilst there is scant empirical evidence on this matter let us assume that some evidence could be adduced to support the contention.  Here again this simply shifts the focus or argument more explicitly towards the balancing process.  The question then becomes whether, applying the principle of proportionality, the restriction is necessary for the protection of the reputation of others – the others in this instance being other charities

(iii)  ‘maintaining the authority and impartiality of the judiciary’

This justification for the restriction on freedom of expression is one that appears to mirror almost exactly one of the reasons conventionally advanced by the courts for introducing and maintaining the political disqualification rule.  Whether the restriction on freedom of expression inherent in the rule is ‘necessary’ to achieve the stated purpose of impartiality or is even conceptually relevant to it lies at the heart of debate about the rule.  Whilst the ‘impartiality’ justification has consistently been affirmed by English courts, dicta in some recent Commonwealth cases have questioned the validity of some aspects of the rationale for the political disqualification rule. [61]   Nevertheless if the English judiciary remain persuaded of the merits of the ‘impartiality’ justification then a fortiori there would seem at first glance to be every reason to recognise the justification as satisfying the requirements of Article 10(2).

The seemingly straightforward nature of this linkage between the language of Article 10(2) and the rationale for the political disqualification rule in charity law may, however, be misleading for two reasons.  First, it assumes that the material scope given to the language in Article 10(2) coincides with the charity law understanding of the requirements necessary to ‘maintain … the impartiality of the judiciary’.  In fact it would seem that a somewhat narrow view has been taken by the European Court of what restrictions can be permitted under the aegis of ‘maintaining the authority and impartiality of the judiciary’ under Article 10(2).  The emphasis has been directed towards recognising t