Joint Committee on the Draft Charities Bill Minutes of Evidence


Supplementary memorandum from Minority Rights Group International (DCH 327)

ADVANCEMENT OF HUMAN RIGHTS IN THE DRAFT CHARITIES BILL

  At the close of last Wednesday's oral evidence session, Mr Milburn invited witnesses to write to the committee to expand upon any of the points made. I am therefore taking this opportunity to provide some clarification on my comment that despite the passage of this proposed legislation there may be many areas of the advancement of human rights that the Charity Commission will still not regard as being charitable even though they concern grave, mass violations of rights. This is something on which two members of the committee approached me after the session.

  As you will know, the Charity Commission has in recent years recognised the promotion of human rights as a charitable purpose in its own right, working by analogy with existing charitable purposes. On 11 June the Commission issued for consultation revised guidance on "The Promotion of Human Rights". The paper notes that human rights is included as "one of the descriptions of charitable purposes" in the draft Charities Bill, and then usefully goes on to explain the Commission's intended approach towards deciding the charitable status of organisations wishing to promote human rights. It is my understanding that this is the approach the Commission would follow if the Bill becomes law.

  The guidance states: "Since the promotion of human rights is a broad concept which is apt to apply to non-charitable purposes (including, of course, political purposes), it is important that an organisation seeking to establish itself as a charity should set out the ways in which it will promote human rights" (paragraph 19). The guidance then goes on to outline ways in which a charity might promote human rights. Although the guidance notes that the list is not exhaustive, the implication is that other ways of promoting human rights may be disallowed; and here the Commission appears particularly wary of work to end infringements of human rights (as opposed to work which is about generally promoting rights).

  Of particular concern is the Commission's attempt to make a distinction between some human rights and others. In paragraph 37 it states that "eliminating infringements of the prohibitions on torture, slavery, extra-judicial killing, arbitrary detention and disappearance" are charitable. The clear implication is that eliminating infringements of other human rights may not be held to be charitable. The justification for this is not clear, although the guidance refers both to these particular rights being "basic" human rights, and also notes that "These prohibitions form part of what is known in international law as the `peremptory norms'."

  The attempt to make distinctions between different human rights offends against a principle of international law that human rights are indivisible and inter-dependent. All the human rights contained in the Universal Declaration of Human Rights and subsequent multilateral treaties of universal application are "basic": they are the rights that the nations of the world have agreed are held by every living person in recognition of our common humanity.

  The notion of peremptory norms of general international law, or jus cogens, is principally a concept applying to the interpretation of treaty obligations. Jus cogens are defined in the 1969 Vienna Convention on the Law of Treaties as those norms which are "accepted and recognized by the international community of states as a whole as norms from which no derogation is permitted [. . .]". However, there is no settled list of jus cogens norms in international law (the International Law Commission refused to draw one up specifically because of the conclusions that might be drawn from omission), and the Charity Commission list does not match any list of which I am aware. Leading authorities on international law including the International Court of Justice and the Restatement of Foreign Relations Law of the United States have in this context referred to particular human rights norms that do not appear on the Charity Commission list, for example the prohibition of apartheid or racial discrimination.[3] The International Convention on the Elimination of Racial Discrimination is the oldest and one of the most widely ratified of all UN human rights treaties.

  The real source of paragraph 37 of the guidance appears to be previous ad hoc decisions of the Charity Commission and of course the Amnesty case (McGovern v Attorney General [1981] 3 All ER 493). The sort of mess that results from relying on this case law is demonstrated by the objects clause of a recently registered charity, the Human Rights Watch Charitable Trust (no 1100101): over 400 words of complex, self-contradictory legalese that does nothing to help the task of charity trustees or to advance public understanding of charity.

  There is therefore a serious concern that, even after the passage of this legislation, the Charity Commission would not regard as charitable many human rights purposes, for example:

    —  The release of prisoners of conscience (that is, those individuals imprisoned solely on account of their conscientiously-held beliefs, or because of their ethnicity, colour or language)—this was the original object of Amnesty on its foundation in 1961;

    —  Procuring the abolition of apartheid or racial discrimination;

    —  Procuring the abolition of capital punishment for juvenile offenders.

  Seeking to end many other gross violations of rights may also not be accepted as charitable. Take the recent practice in Burundi of "regroupment" in which some 300,000 people were detained in concentration camps solely on account of their Hutu ethnic origin where they were subjected to consistent patterns of further gross human rights abuse, including systematic rape. Seeking to end the infringement of human rights violations of this nature would surely not be regarded by the British public as anything other than a humanitarian mission, deserving of charitable status. But it is not covered by the Charity Commission guidance.

  I am of course aware that some aspects of human rights may be politically contentious, just as there continues to be healthy political controversy over education, religion and the prevention of poverty. However, we have come a long way in the near quarter century since the Amnesty case, including the fall of the Berlin wall, the end of the Cold War and the abolition of apartheid in South Africa, and my own experience indicates that work to end infringements of grave violations of human rights abroad is not regarded by the general public in this country as political. It would be an historic opportunity missed if the Charities Bill did not reflect this change but instead left us where we were in 1981.

  I would therefore recommend that:

    1.  "the elimination of racial discrimination" is included as a charitable purpose in clause 2 (2) of the draft Bill;

    2.  it is made clear that "the advancement of human rights" includes "the elimination of infringements of human rights", either by an amendment to this effect in clause 2(2)(h) of the draft Bill or by means of a Parliamentary statement by the Minister during the passage of the legislation.

July 2004






3   See the list of erga omnes obligations (a related concept to jus cogens) in Barcelona Traction, Light and Power Co Case, ICJ Reports 1970, p3; and the list of prohibitions under customary norms in Restatement (Third) of Foreign Relations Law of the US, vol 2 (1987), p165, which also includes "a consistent pattern of gross violations of internationally-recognized human rights". Back


 
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