QUOT HOMINES TOT SENTENTIAE OR UNIVERSAL HUMAN RIGHTS: A PROPOS MCGOVERN v. THE ATTORNEY‐GENERAL1
| Date | 01 July 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02524.x |
| Published date | 01 July 1983 |
| Author | Friedl Weiss |
THE
MODERN
LAW REVIEW
Volume
46
July
1983
No.
4
QUOT HOMINES TOT SENTENTIAE
OR
UNIVERSAL HUMAN
RIGHTS:
A
PROPOS
MCGOVERN
V.
THE ATTORNEY-GENERAL1
I.
INTRODUCTION
AMNESTY
INTERNATIONAL
is an organisation campaigning for the
improvement of compliance with human rights standards throughout
the world. In
1977
the Nobel Peace Prize was awarded to it. Whilst its
humanitarian work is frequently the subject of both admiration and
considerable controversy, its role as an instrument for combating abuses
of human rights has not been doubted. Its status is that of an inter-
national non-governmental organisation which is established in
accordance with the laws of a particular state. Thus, Amnesty was
founded as an unincorporated, non-profit making association under
English law. The seat of the organisation’s international secretariat is
in London.
Article
I
of the Statute
of
Amnesty International sets
out
the
means
by which it seeks to achieve its overriding aim which is
“
to secure
throughout the world the observance
of
the provisions
of
the Universal
Declaration of Human Rights,” with the particular object of ensuring
that prisoners
of
conscience (that
is
persons imprisoned, detained or
restricted because
of
their political, religious or conscientious beliefs
or their ethnic origin, sex, colour or language) are treated in accordance
with the provisions of the Universal Declaration.
The Amnesty International Trust was set up by Declaration
of
Trust
of November
2,
1977,
to administer those of its objects which Amnesty
had been advised were charitable. However, the Charity Commission
refused to register the Trust under section
4
of the Charities Act
1960
on the ground that its objects were not exclusively charitable. This
decision was appealed against by an originating summons of December
11,
1978.
The appeal was dismissed by Slade
5.
taking the view that he
had no means of judging whether the elimination
of
injustice to be
achieved by changes in the law in foreign countries, which he deemed to
constitute a political objective, constituted public benefit
so
as to
justify the Trust enjoying charitable status.’
McGovernv. Aftorney-General
[I9811
3
All
E.R.
493.
385
M.
L.
R
.-I
386
THE
MODERN LAW REVIEW
pol.
46
This case therefore is concerned with three interlinked questions.
First, whether a trust to secure the release of prisoners of conscience
and
to
procure the abolition of torture
or
inhuman or degrading treat-
ment
or
punishment by means of changes in foreign legislation and
reversal of administrative decisions of foreign governments is a trust
for political purposes. Secondly, whether it satisfies the requirement of
public benefit and thirdly, whether the trust is charitable. Prima facie,
this case is concerned with ordinary trust problems. Yet, when these
matters are lifted,
so
to speak, from their strictly technical legal
‘‘
habi-
tat,” intricate textures of broader themes are discoverable requiring
analysis on several levels. One is the purely domestic level of municipal
law, the operation of the law governing charities as administered by the
courts. Another is that of substantive human rights standards
of
international law.
A
third
is
the interplay of these two in
a
municipal
court. The following observations are mainly directed to international
law aspects of the judgment.
11.
RELEVANT
PRINCIPLES
OF
THE
LAW
OF
CHARITIES
Charitable trusts are
“
public
”
in at least two respects: broadly speak-
ing they enjoy tax exemptions and are enforceable at the suit of law
officers of the Crown.2 In order to benefit from charitable status
in
law,
a trust must promote a public benefit of a kind which courts recognise
as public benefit. Moreover, to be charitable in law, the purposes of a
trust must fall within one of the established four classes of charitiesas
These classes constitute rationalisations of the spirit and intendment of
the preamble to the Statute
of
Elizabeth
I
which has been reaffirmed
more recently with the added refinement that the classification is one of
convenience
It is unnecessary in the present case to dwell on these categories as
Slade
J.
accepted the suggestion by counsel for the plaintiffs that
“
a
trust for the relief of human suffering and distress would prima facie be
capable of being of a charitable nature.” However, the classification
is also significant with respect to the requirement of public benefit
which is subject to a test of variable stringency6 and in the case of
trusts for the relief of poverty
is
either assumed satisfied
or
to be
less
essential.’ But Slade
J.
refused to allow a
‘‘
charity of compassion
”
to
Pettit,
Equity
and the Law
of
Trusts
(4th ed.,
1979),
pp.
171, 209;
Cross
(1956) 72
L.Q.R.
187.
These are trusts based
on
the division first suggested by Sir Samuel Romilly in the case
Morice
v.
Bishop
of
Diirltant, 10
Ves.
522
and subsequently categorised by Lord
MacNaughten in
Income Tax Special Purposes Comrs.
v.
Penisel [1891]
A.C.
531, 593
as
comprising:
“
trusts
for
the relief
of
poverty; trusts
for
the advancement
of
education;
trusts for the advancement of religion; and trusts for other purposes beneficial to the
community not falling under any of the preceding heads.”
Scottish Burial Reform and Cremation Society
Lid.
v.
Glasgow City Corporation
[1967] 3 All
E.R.
215, 223, per
Lord Wilberforce. Statute
43
Eliz.1.c.
4,
known as The
Charitable Uses Act,
1601.
[1981] 3
All E.R.
503.
6
Giltnour
v.
Coats
[1949]
A.C.
426, 429, per
Lord Simonds;
I.R.C.
v.
Baddeley [1955]
Dingle
v.
Turner [1972]
1
All
E.R.
878;
(19721
A.C.
601;
Parker and Mellows,
The
A.C.
572, 615,per
Lord Somervell;
Cross,
op.
cit. 190;
Pettit,
op.
cit. 198.
Modernhwof Trusts(4th
ed.,
1979),
p.
180etseq.
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