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 that it is justifiable for a state to seek to protect the judiciary from unfounded allegations of bias. [62]   It seems improbable, for instance, that the European Court would consider that avoiding involvement of the courts in matters of political controversy would per se justify a restriction on freedom of speech.  Indeed one of the most obvious and anticipated effects of placing human rights discourse in the forefront of litigation involving the state is to put the courts in a position where controversy is not only unavoidable but is intended.  An interpretation of Article 10(2) that justified excluding the courts from ruling on matters of political controversy would render almost nugatory the protection offered by Article 10 against infringement by the state on freedom of expression.

This analysis of the scope of Article 10(2) leads directly into the second reason why the seemingly obvious parallel between the language of that Article and the rationale for the political disqualification rule is misleading.  It simply fails to take account of the possibility that the HRA 1998 will involve our own courts in matters of political controversy and thereby itself indirectly undermine the rationale for the political disqualification rule in its fullest extent.  This point is considered further below (C 2) where the possible indirect effect of the HRA 1998 is discussed.

(iv) Proportionality and the Campaigning Exception

There remains one further response that might be made to challenge the claim that the restrictions on political purposes and campaigning infringe Article 10.  That is simply that charity law already permits charities to undertake a significant amount of political campaigning.  The proviso is only that campaigning must be ancillary to some charitable purpose and comply with the guidelines issued by the Charity Commission which in turn are presumed to reflect the spirit of the decided cases in the area.  The proposition then would be that there is freedom of expression under Article 10(1) or alternatively that the extent of the permitted campaigning means that such restrictions as are imposed are not disproportionate to the aim to be achieved, i.e. ‘respect for reputation or rights of others’.

It should not be overlooked, however, that the proposition that under charity law a significant degree of political campaigning is permitted is potentially a double-edged sword.  As previously indicated it tends to undermine the contention that Article 10 has no bearing on the political disqualification rule because ‘charitable purposes’ and  ‘political purposes’ are mutually exclusive.  That separation can be sustained formally by drawing on a distinction between charitable ends and political means.  The difficulty then is that the distinction is in some circumstances wafer-thin.  This is particularly so where the rule can be easily circumvented either by careful drafting so that a political purpose can be characterised as being ancillary to a charitable purpose or even by interpretation by the courts. [63]

C.2 Indirect Effects of the HRA 1998

As indicated previously the notion of ‘indirect effect’ of the HRA 1998 refers in this paper to the possible ways in which the statute might impinge on the underlying rationale for the political disqualification rule.  We have already seen that the rule excluding organisations with political objects from attaining charitable status rests partly, if somewhat tenuously, on a rationale linked broadly to a notion of judicial impartiality. Two separate facets of this rationale fall to be considered in more detail here: one relates to the doctrine of separation of powers and the constitutional position of the judiciary whilst the other concerns the involvement of the judiciary in matters of political controversy. To be precise, the principal issue therefore is how far if at all those two stated reasons for the rule could be said to be consistent with the enhanced constitutional role of the judiciary under the HRA 1998.  There is a caveat to be mentioned here.  Even assuming that inconsistency between ‘rule’ and ‘role’ could be established, this would not of itself resolve the question of how far charities could or should be allowed a more extensive political role.  Resolution of that issue depends on where the justification is really located.  There may be reasons for sustaining the separation between charity and politics other than those conventionally advanced in the case law.  This point is considered further in the conclusion to the paper.

First, however, we examine the outline of the argument that the enactment of the HRA 1998 indirectly alters the terms of the debate surrounding the impartiality rationale for the political disqualification rule.

C.2(a) Indirect Effect and Freedom of Expression

The key to the ‘indirect effect’ proposition rests on the fundamental nature of the right of freedom of expression and its relationship to the practice of democracy.  In political and philosophical discourse two principal reasons, sometimes labelled as the intrinsic and the instrumental have been advanced as underpinning the value of freedom of expression. [64]   Under the intrinsic conception freedom of speech is regarded as a good in itself.  Whatever the merits of this proposition may be they are not of immediate relevance to the discussion here.  It is the instrumental (or consequentialist) conception that concerns us and there are two dimensions to this conception.  At its broadest freedom of expression can be justified instrumentally as constituting the best way of determining the truth.  This proposition is most famously and graphically captured by a much-quoted passage from Milton’s Aeropagitica: [65]

Though all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength.  Let her falsehood grapple; whoever knew truth put to the worse in a free and open encounter?

Phrased in those sweeping terms the virtues of freedom of expression are by no means limited to or even couched in terms of political speech. The more narrow perhaps more prosaic consequentialist justification is that freedom of expression can be perceived as a key element in a democracy.  Thus, in Handyside v UK the European Court of Human Rights stated: [66]

The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’.  Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.

From this standpoint freedom of political speech is important because it contributes to an informed electorate, to the processes of democratic debate and to the accountability of representatives.  Regrettably, so the argument runs, the current rules on charities and politics constrain the nature of the contribution that charities can make to an enlightened political discussion in a pluralist democracy. [67]   Indeed it has been claimed that only if the current political restrictions on charities are removed ‘can voluntary organisations fulfil their responsibilities as part of the fabric of modern democratic society’. [68]   In a broadly comparable although more theoretical vein some political scientists argue that governance in society is tending towards a system of self-organising networks in which the voluntary sector has a key political role to play. [69]   One response to such claims is that there is nothing preventing voluntary organisations ‘fulfilling their responsibilities’ provided that they do not also expect to receive the benefits of charitable status.  As previously indicated [70] this riposte rather begs the question at issue: ‘what reasons are there for imposing constraints on the involvement of charities in political activity?’

The significance of the propositions about freedom of political speech and the democratic process is that they can be rephrased in terms of charity law.  The proposition then becomes that in a pluralist democracy political criticism, the promotion of controversial views and advocacy of change in or retention of any given law are all activities that should be accepted as ‘beneficial to the community’.  Variants of this proposition have appeared in a number of forms in legal academic criticism of the political disqualification rule. [71]

To summarise, the core of the ‘indirect effect’ proposition is that the changed role of the judiciary in the polity as a consequence of the HRA 1998 has in turn changed the terms of the debate about the justification for the political disqualification rule.  We can now assess the implications of this line of argument for the two separate facets of the judicial impartiality rationale viz.  the doctrine of separation of powers and the involvement of the judiciary in matters of political controversy.

C.2(b) Separation of Powers, Legal Change and Public Benefit

As regards separation of powers, the courts have jurisdiction under the HRA 1998 to interpret domestic legislation by reference to the extensive body of Convention rights.  As indicated previously this process may quite conceivably result in judgments that conflict directly with government policy on a particular matter.  One might even draw an inference to this effect where, under section 4 of the HRA, the court issues a declaration of incompatibility that some aspect of legislation introduced by the government is contrary to the Convention rights as interpreted by the court.  Next, to pursue the hypothesis let us assume that courts would be willing to recognise that under charity law advocacy of some change in the law could be for the public benefit.  It is then at least open to question whether implementing that approach in any given case would represent any greater infringement of the traditional Diceyian doctrine of separation of powers than could occur in the interpretation and application of the HRA 1998 itself. [72] Arguably this remains the case even if the change advocated was in a direction inconsistent with government policy.

The above argument does rely heavily, however, on accepting that the courts would be upholding the virtue of advocacy of change’ rather than commenting on the merit of the proposed change itself. [73]   But that proposition does not reflect the position so far adopted in the case law. [74]   Instead the stated rationale for the political disqualification rule rests on the proposition that the courts, in enforcing such a purpose, would in reality be stating whether the change itself, not merely its advocacy, would be for the public benefit.  If, notwithstanding the argument advanced to the contrary in the previous section, the courts continue to adhere to their current approach then the claim that there is no conflict with the doctrine of separation of powers will be more difficult to sustain.  That conclusion is best illustrated by shifting the focus away from charity law for the moment.  Let us assume that the advancement of Convention rights can be aligned with some notion of public benefit.  Let us furthermore assume that a particular decision of the court under the HRA 1998 about the status of, for instance, some legislative provision can be construed as a statement that the provision at issue conflicts with Convention rights and is therefore not for the public benefit.  This approach by the court would nevertheless still represent the implementation of a jurisdiction granted to it by the HRA 1998 itself.  Returning then to the position under charity law a  free-standing jurisdiction for the courts to state that a change in the law, not necessarily on a topic in any way related to Convention rights, is for the public benefit could still be interpreted, however erroneous the reasoning may be thought to be, as constituting an infringement of the doctrine of separation of powers and one that goes beyond any modification justified by the extended jurisdiction of the courts under the HRA 1998.

C.2(c) Controversy and Judicial Impartiality

Any rationale for the political disqualification rule that relies on some notion of courts not becoming involved in matters of political controversy is also, post 2 October 2000, more difficult to sustain.  As has been seen already there are now likely to be occasions when the courts will be placed under the HRA 1998 in the position of adjudicating on whether, for instance, implementation of a particular government policy by some public body infringes a Convention right.  This outcome can plainly bring the courts more explicitly into the domain of political debate and quite probably political controversy.  The contention, following the line of argument deployed in the previous section, is that if the courts were to accept that the advocacy of particular views on matters of controversy might be for the public benefit under charity law, then they would be taking no more controversial a stance than that entailed of the court in exercising its jurisdiction under the HRA 1998.  It must be emphasised again, however, that this does depend on the courts accepting, for instance, that the promotion or advocacy of some purpose is for the public benefit as a contribution to debate, and does not require the court to reach a judgement as to whether the actual attainment of the purpose itself will benefit the public.  Some analogical support for the capacity of the court to adopt this approach might be found in an area of charity law where controversy and competing views can be present, namely the advancement of religion. In Gilmour v Coats Lord Reid emphasised that the law adopts a position of neutrality on the claims of different religion: [75]

Where a particular belief is accepted by one religion and rejected by another, the law can neither accept nor reject it.  The law must accept the position that it is right that different religions should each be supported, irrespective of whether or not all its beliefs are true.

By parity of reasoning could not the courts recognise as charitable a trust whose objects are controversial, or one of whose objects is to change the law, without this recognition being construed as agreement or disagreement that the change would be for the public benefit?  A court that upheld as charitable a purpose such as ‘the promotion of peace by disarmament’ need no more be construed as supporting that purpose than Romilly MR was endorsing the ‘foolish’ works of Johanna Southcote when he held charitable a devise of land to promote the publication of her work in the 19th century. [76]

The proposition being advanced here about public benefit and judicial impartiality is not unlimited in its scope.  An objection to the type of reasoning sketched out above is that without qualification it could justify charitable status being granted to any and all political organisations and pressure groups.  There is though no reason why the emergence of some limitation on the scope of the political disqualification rule should necessarily lead to that conclusion.  To accept, as one purpose of an organisation with other indisputably charitable purposes, that advocacy of some change in the law or in government policy may be for the public benefit does not entail a conclusion that an organisation with exclusively or predominantly political purposes should equally be granted charitable status with its attendant legal and fiscal privileges.  It is therefore important to emphasise that most proponents of reform envisage that in some form constraints would continue to exist. [77]   The key is then to determine where the limits are to be drawn and in particular whether such limits as are to be imposed should only be those that fall within the qualifications listed in Article 10(2) of the European Convention.


With one exception it is difficult to draw any firm conclusions from this survey of the possible ways in which the HRA 1998 might directly or indirectly affect the material scope of the political disqualification rules.  The exception concerns the legal status of the promotion of human rights in the UK as a charitable purpose.  It can be argued with some degree of confidence that the political disqualification rule should no longer act as a barrier to recognition of that purpose as being charitable.  Beyond that one conclusion it is a matter of speculation whether the legislation will record more than a minor tremor on a Richter Scale of legal effects. [78]

On the one hand it may be anticipated that the courts will exhibit a high degree of caution.  Scepticism may predominate in the face of any attempt to use a novel rights-based discourse to undermine the combination of legally restrictive rules moderated by pragmatic application of guidelines that characterises the present status quo.   After all it must not be forgotten that the present attitude of the courts is supposedly premised upon preserving judicial impartiality and respecting the constitutional position of the courts vis à vis the legislature. [79]

On the other hand, this sceptical approach towards the direct effect of the HRA 1998 may underestimate the scope for modification of the rules that the indirect effect of the legislation may offer.  The thinking here is that the mode of reasoning the courts will be required to employ under the HRA 1998, in particular the consideration of matters of policy as part of the adjudication process, may in turn ‘spill over’ into their approach to interpretation of common law doctrine.  This ‘spill over’ effect may appear in either a strong or a weak version.  The strong version of the effect refers to a phenomenon whereby, to borrow from the language of a leading Canadian case in a different constitutional context, ‘the courts ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in [the legislation]’. [80]   German scholars have advanced a similar proposition about the relationship between values and the legal order. [81]   In the context of the political disqualification rules in charity law the possibilities and limitations inherent in this type of approach were reviewed in the context of discussing the indirect effect of the HRA 1998 in Section C2 above.

Turning then to the notion of a ‘weak spill over’ effect, what is meant is that the process of judicial reasoning will have to become more explicit as regards the values that inform legal decisions.  The point has been forcefully made by Lord Browne-Wilkinson. [82]   Commenting extra-judicially on the impact of the HRA 1998 on a common law methodology whereby moral reasons underpinning decisions are rarely articulated, he concludes: [83]

Moral attitudes that have previously been the actual, but unarticulated, reasoning lying behind judicial decisions will become the very stuff of decisions on Convention points.  The silent true reason for a decision will have to become the stated ratio decidendi.

Lord Browne-Wilkinson is there talking about moral attitudes that underpin decisions rather than unarticulated policy reasons that may equally do so.  In the context of the political disqualification rules it is the policy reasons that are more relevant.  Notwithstanding this distinction it can be argued that in any claim invoking Article 10 the courts will be placed in a position comparable to that envisaged by Lord Browne-Wilkinson. [84]   At the very least the courts might have to formulate a response to the sort of criticisms of the judicial impartiality rationale that this paper has sought to identify.  Mere assertions that the rules are necessary to protect judicial impartiality will not be compelling. [85]

Articulation of reasons for a decision does not mean that the outcome will be different.  It may be that the courts will conclude after all that charity and politics are antithetical, or that fiscal privileges should not be provided to support political purposes or activities, or that the common law rule already incorporates the Article 10(2) qualifications in that it is a necessary and appropriate response to protect the rights of others. [86]   An alternative outcome may be that the courts will incrementally and in due course undertake a fresh line-drawing exercise over the political disqualification rule but one in which the reasons for exclusion or inclusion in charitable status will avoid reliance on a questionable mythology of impartiality. [87]

Turning finally from myths to idioms and the so far unstated theme of the paper: is the HRA 1998 a red herring in the debate about the status of the political disqualification rule?  Just as the red herring idiom itself is ambiguous [88] so is the impact of the HRA in this area.  On the one hand it can be argued that Article 10 of the Convention will have minimal direct impact on the rule and to that extent the introduction of a rights based discourse merely serves to obscure the underlying principles and policies.  Conversely it can be argued, in the ways outlined in this paper, that the Act can have an indirect impact in so far as it alters the terms of the debate about the rationale for the political disqualification rule. It may be optimistic and unrealistic to expect more.

* Graham Moffatt is Professor of Law at the University of Warwick.  This paper was delivered at the Warwick-Giessen Human Rights Symposium in 2001.

[1] The Charity Commissioners, of whom there are five assisted by a staff of around 550, are civil servants appointed by the Home Secretary to whom they must submit an annual report, but otherwise they act independently of his department. On the public accountability of the Commission see 10th Report of the House of Commons Expenditure Committee (HC Paper (1974–75) no 495); National Audit Office Regulation and Support of Charities  (HC Paper (1997-98) no 2) and the Committee of Public Accounts (Twenty Eighth Report (1997-98) HC no 408).

[2] Under Charities Act 1993, s 3(1) and (2) the Commissioners are required to establish and maintain a register of all ‘charities’ not specifically excused. The mandatory obligation is reinforced by s 3(6) and (6)(a), under which the ‘charity trustees’ of such charities are required to apply for registration (see generally H. Picarda The Law and Practice Relating to Charities (London: Butterworths, 1995) ch 35).

[3] Under the Human Rights Act 1998, s6 (1) it is unlawful for a public authority to act in a way which is incompatible with a Convention right and ‘a public authority’ includes ‘any person certain of whose functions are functions of a public nature’ (s 6(2)(b)).  This definition could certainly extend to include some activities of modern charities.

[4] See J. Warburton and A. Cartwright ‘Human Rights, Public Authorities and Charities’ (2000) 6 CL&PR no 3, 169; and Charity Commission, Human Rights Act 1998: Charities and Human Rights (Operational Guidance OG71 B3 – 18 September 2000:

[5] For preliminary assessments of the possible significance of the HRA 1998 for the political purposes rule see D. Morris ‘Charities, Politics and Freedom of Speech’ (1999) 5 CL&PR no 3, 219; and G. F. K. Santow ‘Charity in its Political Voice – a Tinkling Cymbal or a Sounding Brass? (1999) 18 Australian Bar Rev 225 or [1999] Current Legal Problems 255. See also F. Quint and T. Spring, ‘Religion, Charity Law and Human Rights’  (1999) 5 CL&PR no 3, 153 for a more detailed assessment of the possible impact of the HRA 1998 on the definition of religious purposes under charity law.

[6] The term ‘political purpose’ has been given a broad interpretation in charity law.  It includes (i) to further the interests of a particular political party; or (ii) to procure changes in the law of this country; or of a foreign country; or (iii) to procure a reversal of government policy or of particular decisions of governmental authorities in this country or a foreign country; or (iv) to promote the maintenance of an existing law or a particular line of political administration and policy or (v) to promote a particular set of political principles or (vi) to promote a partial view  on a matter of political controversy.

[7] Political Activities and Campaigning by Charities (London, Charity Commission, 1997); see generally G. Moffat, Trusts Law (London, Butterworths, 1999) 755-756.

[8] According to S. Grosz, J. Beatson, and P. Duffy, Human Rights: The 1998 Act and the European Convention  (London, Sweet & Maxwell, 2000) between 1964 and July 1999 the European Convention was referred to in over 650 English cases.  See also M. Beloff QC and H. Mountfield, ‘Unconventional Behaviour – Judicial Uses of the European Convention in England and Wales’  [1996] EHRLR 467, and M. Hunt Using Human Rights Law in English Courts (Oxford, Hart, 199 7) Ch 5 and Appendix 1; but for the more sceptical analysis of the position in Scotland see C.R. Munro ‘Fundamental Rights in National Law’ [1997] SLT (News) 221 cited in G. Anderson. ‘Using Human Rights Law in Scottish Courts’ (2000) 25 European Law Review Human Rights Survey HR 3 f/n 4.

[9] It remains to be seen whether what Lester and Pannick describe as the ‘subtle insularity’ of Lord Donaldson MR will prevail: ‘you have to look long and hard before you can detect any difference between the English common law and the principles set out in the Convention, at least if the Convention is viewed through English judicial eyes’ in R v Secretary of State for the Home department, ex Parte Brind [1991] 1 AC 696 at 717, cited in Lord Lester and D. Pannick  Human Rights Law and Practice (London: Butterworths, 1999) p 17 f/n 1.

[10] Lord Irvine HL Deb, vol 585, col 840, February 5 1998; see also Lord Lester and D. Pannick QC Human Rights Law and Practice (London, Butterworths, 1999) at para 2.07: ‘The HRA 1998 will create a strong magnetic field across the entire body of United Kingdom law …’.

[11] Lord Rodger in HM Advocate v Montgomery [2000] J.C. 111 at 117A cited by G. Anderson, op cit at HR 16.

[12] It can be argued that the reliance by Slade J on the dicta of Lord Diplock is misconceived.  Lord Diplock in Duport Steels is addressing a very different aspect of judicial impartiality which bears no relation to the circumstances where a court is not itself purporting to change the law but is being asked to uphold as charitable a purpose advocating change in the law. The legal context for the decision in Duport Steels was that the Court of Appeal in a series of decisions (notably Express Newspapers Ltd v McShane [1979] ICR 210; Associated Newspapers Group v Wade [1979] ICR 664) had interpreted a statutory provision in a manner plainly inconsistent with its intent so as to restrict the statutory immunities granted to industrial action. Indeed in one respect comments by Lord Diplock in the case tend to undermine the impartiality point as interpreted in charity law. The fact that Lord Diplock was reminding the Court of Appeal of the principles of parliamentary sovereignty did not prevent him from describing the legislation as ‘intrinsically repugnant to anyone who has spent his life in the practice of the law or the administration of justice’ ([1980] IRLR 112 at 117). This was widely seen as an open invitation, probably not needed, to the Conservative government to change the law.

[13] It is open to question as to whether the current approach of the courts is premised upon an excessively narrow interpretation of the Diceyian doctrine of sovereignty of Parliament.  See e.g. A. V. Dicey The Law of the Constitution (10th edn, 1965) at 39-40: ‘The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament … has … the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament’.

[14] ‘The Development of Human Rights in Britain’  [1998] PL221 at 228-9.

[15] See the review by F. Klug ‘The Human Rights Act 1998, Pepper v Hart and All That’ [1999] Public Law 246 at 249-252.

[16] See P. Mahoney ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 HRLJ 1 and other contributions at pp 6-36.  See also Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996).

[17] HC Deb vol 317, col 1301, 28 October, 1998.

[18] ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79 at 92; see also C. Gearty in F. Butler (ed) Human Rights For The New Millenium (The Hague, Kluwer, 2000) at 36.

[19] See f/n 13 and accompanying text.

[20] In McGovern v Attorney General [1981] 3 All ER 493 Slade J addresses this point by emphasising that the court would be ‘prejudicing its reputation for political impartiality, if it were to promote such objects by enforcing the trust’ (at 507).

[21] Note that although it is common law based rules that would be at issue the matter would remain within the ‘vertical effect’ scope of the HRA 1998.  The debate as to whether the Act also has a  ‘horizontal effect’  – i.e. to affect legal relations between one private citizen and another – is irrelevant for the purposes of this paper.  See generally on the ‘horizontal effect’ debate M. Hunt ‘The “Horizontal Effect” of the Human Rights Act’ [1998] PL 423; G. Phillipson ‘The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?’ (1999) 62 MLR no 6824; H.R.W. Wade ‘Horizons of Horizontality’ (2000) 116 LQR 217 but cf. Buxton LJ ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48.

[22] A charitable trust established in the UK is exempt from income tax on investment income as long as the income is applied for charitable purposes only (Income and Corporation Taxes Act 1988 (ICTA), s 505; and see IRC v Educational Grants Association Ltd [1967] Ch 993).

[23] Charities Act 1993, ss 16 and 18.

[24] Quaere whether it might be argued that Article 14 (Prohibition of Discrimination) is infringed where charities are denied the same level of freedom of expression as non-charitable organisations.  Note in particular the reference to ‘or other status’ in the wording of Article 14 which prohibits discrimination ‘on any ground’ in the securing of Convention rights.

[25] The ways in which the common law has developed doctrines to protect aspects of freedom of expression should not be overlooked.  This has been most evident in the emergence of defences to defamation actions (see e.g. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 and more recently Reynolds v Times Newspapers Ltd [1998] 3 WLR 862 CA and [1999] 4 All ER 609 HL). In Reynolds, for instance, a passage in the Court of Appeal comments that ‘we do not for an instant doubt that the common convenience and welfare of a modern plural democracy … are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community’ (at 909, emphasis added). See also M. Chesterman ‘Foundations of Charity Law in the New Welfare State’ (1999) 62 MLR no 3,333 at 346-8.

[26] The Times, 1 August 2000.  See also F. Klug, ‘The Human Rights Act 1998: A General Overview’ in F. Butler (ed) Human Rights for the New Millenium (Kluwer, 2000) 49-63.

[27] (1976) 1 EHHR 737 para 49.

[28] See S. Grosz, J. Beatson, and P. Duffy, Human Rights: The 1998 Act and the European Convention  (London: Sweet & Maxwell, 2000) p.163 citing respectively Matthews v United Kingdom (1999) 28 EHRR 361, para 39 and Loizidou v Turkey (1995) 20 EHRR 99, para 72.  See also Sigurour A Sigurjonsson v Iceland (1993) 16 EHRR 462; para 35.

[29] Platform Artzte fur das Leben v Austria (1991) 13 EHRR 204 para 32 cited in S. Grosz et al op cit p 165.

[30] There is a degree of similarity with the usage adopted here and the distinction sometimes drawn in human rights literature between ‘direct’ and ‘indirect’ horizontal effect. See A. Dremczewski, European Human Rights Convention in Domestic Law (Clarendon: Oxford, 1997) 200 and G. Phillipson, ‘The Human Rights Act and the Common Law’ (1999) 62 MLR no 6, 824 at 826-31.

[31] See for comment on the case T.G. Watkin [1982] Conv 387; F. Weiss (1983) 46 MLR 385; R. Nobles (1982) 45 MLR 704.

[32] Annual Report of the Charity Commissioners 1983, paras 18–20.

[33] Ibid, para 19.

[34] See e.g. Re Hood [1931] 1 Ch 240; Re Price [1943] Ch 422 and Re South Place Ethical Society [1980] 1 WLR 1565.

[35] Article 3: Prohibition of Torture; Article 9: Freedom of Thought, Conscience and Religion.

[36] See Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners [1954] Ch 672 at 684.

[37] On this general point see the discussion by Mr Justice Santow in ‘Charity in its Political Voice – a Tinkling Cymbal or a Sounding Brass?’ (1999) 18 Australian Bar Rev 225 at 240; or [1999] Current Legal Problems 255 at 272-275.

[38] See Autronic AG v Switzerland (1990) 12 EHRR 485.

[39] See Jersild v Denmark (1994) 19 EHRR 1 but note though that the position is less clear cut where racist literature or expressions of political support for terrorism are involved.  See eg X v Federal Republic of Germany  29 DR 194 EcomHR and   Brind v United Kingdom (1994) 18 EHRR CD76 and generally Lester and Pannick op cit pp 198-9.

[40] See e.g. M. Chesterman Charities, Trusts and Social Welfare (London, Weidenfeld & Nicolson 1979) ch 365-368; and ‘Foundations of Charity Law in the New Welfare State’ (1999) 62 MLR no 3, 333-349.

[41] See A. Dunn ‘Charity Law as a Political Option for the Poor’ (1999) 50 NILQ 234.

[42] A charitable trust is exempt from the operation of the following rules of trusts law: (1) the rule that, in order to be valid, a trust must specify with adequate certainty one or more human beneficiaries (‘certainty of objects’), (2) the rules against perpetual duration and, to a limited degree, undue remoteness of vesting (‘perpetuities’), and (3) (subject to some exceptions) the doctrine of lapse, whereby if fulfilment of a trust disposition is initially ineffective or subsequently fails, the trust property is held on trust for those expressed to be entitled in default, or in the absence of any such person(s), upon resulting trust for the settlor or his next-of-kin.

[43] Treasury Press Statement, 2 July 1997.  Note that the government estimates that the further tax reliefs introduced in the April 2000 budget could be worth £400 million a year to charities (see Budget Statement p 000)

[44] See footnote 27 and accompanying text.

[45] (1972) 408 US 593 at 597 cited in G. Morris ‘The European Convention on Human Rights and Employment: To Which Acts Does it Apply?’ [1999] EHRLR no 5, 496 at 500.

[46] (1998) 26 EHRR 1.

[47] Ibid, para 46.

[48] For a comparable argument in relation to religious charities and Article 9 of the European Convention see F.  Quint and T. Spring, ‘Religion, Charity Law and Human Rights’ (1999) 5 CL & PR 153 at 165-66 citing X v United Kingdom , No 7291/75.  Note however that a similar argument in relation to freedom of expression under paragraph 2(b) of the Canadian Charter of Rights and Freedoms was robustly rejected as ‘untenable’ in Human Life International in Canada Inc v Minister of National Revenue [1998] 3 FC 202 (CA) per Strayer J: ‘The guarantee of freedom of expression … is not a guarantee of public funding through tax exemptions for the propagation of opinions no matter how good or how sincerely held …’.

[49] See G Moffat, Trusts Law: Text and Materials (London: Butterworths, 1999) at 756.

[50] See above p 000.

[51] See eg M Janis, R Kay and A Bradley  (2nd edn) European Human Rights Law: Text and Materials (Oxford: OUP 2000) ch 5.

[52] Handyside v UK (1976) 1 EHRR 737 para 50.

[53] See e.g. Ahmed v United Kingdom [1999] IRLR 188.

[54] Op cit para 49.

[55] See e.g. M. Beloff and H. Mountfield, ‘Unconventional Behaviour-Judicial Uses of the European Convention in England and Wales’ [1996] EHRLR 467; Sir N. Bratza ‘The Implications of the Human Rights Act 1998 for Commercial Practice’ [2000] EHRLR 1 at 2-3.

[56] Lingens v Austria (1986) 8 EHRR 407 at 418-419, paras 41-42.

[57] Bowman v United Kingdom (1998) 26 EHRR 1 at para 46.

[58] See e.g. D Morris, ‘Charities, Politics and Freedom of Speech’ [1999] 5 CL & PR 219 at 228-9 and generally on this point S. Swann ‘Justifying the Ban on Politics in Charity’ in A. Dunn (ed) The Voluntary Sector, the State and the Law (Oxford: Hart, 2000) 161-175.

[59] See generally Perri 6 and A. Randon, Liberty, Charity and Politics: Non-Profit Law and Freedom of Speech (Aldershot: Dartmouth, 1995) ch 9.

[60] See eg Charities: A Framework for the Future (1989), para 2.41; Goodman Report (1976) para 105.

[61] Santow J in Public Trustee v A-G (NSW) [1997] 42 NSWLR 600 especially at 620F-G; Hammond J in Re Collier (dec’d) [1998] 1 NZLR 81 at 89-90.

[62] See Barfod v Denmark (1989) 13 EHRR 493 at paras 61-64; and generally Lester and Pannick op cit at 205-206.

[63] A stark illustration of the difficulties of distinguishing ends and means can be seen in the contrasting conclusions of the High Court and Court of Appeal in Re Koeppler Will Trusts [1984] 2 All ER 111; rev’d [1985] 2 All ER 869; see also the critical comments of Santow J (Charity in its Political Voice: A Tinkling Cymbal or a Sounding Brass?’ [1999] CLP 255 at 278 or (1999) 18 Australian Bar Review225 at 244.

[64] See e.g.  M. Janis R Kay and A. Bradley  (2nd edn) European Human Rights Law: Text and Materials (Oxford: OUP 2000) at p 140; see generally E. Barendt Freedom of Speech (Oxford: OUP, 1996) Ch 1 for an overview of the political and philosophical debates about freedom of speech and C. McCrudden in B. Markesinis (ed) The Impact of the Human Rights Bill on English Law (1998) ch 8.

[65] John Milton Aeropagitica: A Speech for the Liberty of Unlicensed Printing to the Parliament of England (1644) cited in Janis et al op cit at 158. For arguments in a similar vein see J.S. Mill On Liberty (1859) and Justice Oliver Wendell Holmes famous metaphor of the ‘free market place of ideas’ in his dissenting judgment in Abrams v United States 250 US 616, 630 (1919).

[66] Handyside v UK (1976) 1 EHRR 737 para 49

[67] It must not be assumed that there is universal dissatisfaction with the current state of the ‘politics and charity’ relationship. A relatively recent independent report on the voluntary sector (Commission on the Future of the Voluntary Sector) responding to the considerable volume of evidence presented to it on this matter, concluded that the guidance issued by the Charity Commissioners (see f/n 7)  ‘has given adequate scope for charities to fulfil their role in seeking changes in policy and law for the benefit of their beneficiaries and society’ (Meeting the Challenge of Change (1996) para 3.5.12 but see Sprince (1997) 11 TLI 35-41 for a comparative and more sceptical assessment).

[68] E. Burt, ‘Charities and Political Activity: Time to Re-think the Rules’ [1998] Political Quarterly 23 at 29.

[69] See e.g. the overview by R. Rhodes, ‘The New Governance: Governing Without Government’  [1996] Political Studies 652.

[70] See footnotes 38 and 39 and accompanying text.

[71] R. Cotterrell, (1975) 38 MLR 471; C.E.F. Rickett (1982) 10 NZULR 169; R. Stevens and D. Feldman, [1997] Public Law 615-620.

[72] See footnote 13 and accompanying text.

[73] In Re Collier (dec’d) [1998] 1 NZLR 81.  Hammond J refers to the claim that a judicial decision on ‘(say) temperance, or birth control or euthanasia’ reflects an assumption as to worth of that purpose and comments obiter (at 90, lines 34-38): ‘I have to say that I have considerable sympathy for that viewpoint which holds that a Court does not have to enter into the debate at all; hence the inability of the Court to resolve the merits is irrelevant. Rather, the function of the Court ought to be to sieve out debates which are for improper purposes; and then to leave the public debate where it falls, in the public arena’.  This dictum can be seen as consistent with the approach adopted by the courts prior to Bowman v Secular Society [1917] AC 406; see e.g. Re Foveaux [1895] 2 Ch 501.

[74] In Re Collier (dec’d) [1998] 1 NZLR 81 Hammond J accepts the conventional view that trusts to change the law are not charitable.  Note, however, his reservations on the point: ‘Is it really inappropriate for a judge to recognise an issue as thoroughly worthy of public debate, even though the outcome of that debate might lead to a change in the law?’ (at 90).

[75] [1949] 1 All ER 848 at 862.

[76] Thornton v Howe (1862) 31 Beav 14.

[77] Recently, for instance, Professor Chesterman concluded a critique of some aspects of the existing rules with the proposition that ‘participation in public debate about changes in law or policy relating to an area of charitable activity should be recognised as beneficial within a democratic society and, within limits, charitable in its own right’. (1999) 62 MLR no 3, 333 at 349; emphasis added).

[78] Unfortunately the quite extensive operational guidance on the HRA 1998 issued by the Charity Commission is of scant assistance with regard to the issues raised in this paper.  It simply restates the current position of the Commission on political activity by charities; see Occupational Guidance note OG71B2

[79] In Attorney-General v Southwood (2000) The Times 18th July Chadwick LJ reiterates the mantra. Commenting on the fact that there are likely to be diametrically opposite views as to the best way of securing peace he states: ‘The court is in no position to determine that promotion of the one view rather than the other is for the public benefit.  Not only does the court have no material on which to make that choice; to attempt to do so would be to usurp the role of government’ (at para 29 of the transcript).  It is unfortunate that no argument was presented to the court on the possible effect of the HRA 1998 on the political disqualification rules.

[80] Retail, Wholesale & Departmental Store Union, Local 580 v Dolphin Delivery Ltd (1985) 33 DLR (4th) 174 at 198 per McIntyre J who, however, rejected the argument that the Canadian Charter of Rights and Freedoms was directly applicable in private litigation.

[81] See e.g. the work of Alkema and Drzemczewski cited by Phillipson op cit at p. 830.

[82] Lord Browne-Wilkinson  ‘The Impact on Judicial Reasoning’ in B. Markesinis (ed)  The Impact of the Human Rights Bill on English Law (1998) ch 4.

[83] Op cit p 22.

[84] It would be paradoxical indeed if in this area of charity law the courts were to seek to cling to some notion that policy considerations should not be viewed as material to the outcome of cases.  This would be to ignore the fact that in its 19th century origins the rule were founded on public policy grounds; see De Themmines v De Bonneval (1828) 5 Russ 288.

[85] Note, however, the suggestion by S. Gardner that the existing disqualification rule can serve a ‘protective function’ as a technique that enables the court to decide cases without having to revert to first principles in every instance. See An Introduction to the Law of Trusts (Oxford: Clarendon Press, 1990) p. 110.

[86] It is striking, however, that restrictions on political activities of non-profit organisations in other European countries appear to be either non-existent or substantially less than is the case in the UK. See Perri 6 and A. Randon Liberty, Charity and Politics: Non-Profit Law and Freedom of Speech (Aldershot: Dartmouth, 1995) chs 2 and 3.

[87] See e.g. S. Swann ‘Justifying the Ban on Politics in Charity’ in A. Dunn (ed) The Voluntary Sector, the State and the Law  (Oxford: Hart Publishing, 2000) where, however, a strongly argued case is advanced against any sweeping reform to the current rule.

[88] The origins of the idiom and its ambiguity are to be found in hunting practice. At times a red herring, a type of smoked herring, would be used to lay a trail for hunting dogs to follow.  Perversely a red herring could also be dragged across the trail of genuine animal-scent so as to mislead the hunting dogs.