In McGovern, the abolition of inhuman treatment of prisoners was held to be a political object due to it requiring legal reform, such an objective though is manifestly for public benefit. Hence where such objects are involved, the courts should be able to exercise a degree of discretion to allow charitable status, without losing their veil of impartiality. Thge courts though have failed to do so, relying on a strict rule of impartiality, the only exception being where the object is ancillary. However, in allowing ancillary political activity by charities, it may be argued that the courts are de facto accepting the public benefit of the activity.
This raises issues of jurisprudence regarding the role of the judiciary, in regard to law making and impartiality. The traditional view states that there is separation of powers within the constitutional framework, hence the judiciary merely apply the law made by the legislature, thus impartiality is upheld. The opposing view is that judges are inherently bias due to their personal opinions inevitably influencing decisions, especially where discretion is employed, hence impartiality is maintained by the refusal to consider and therefore allow personal views to influence the decision
The case law indicates that the courts have not followed either of these views, instead refuse to consider 'hard cases' in order to maintain political impartiality. If examined on a deeper level though, this policy is in effect a product of judicial bias against political reform.
Whilst the courts argue that it is not for them to consider the merits of reform, however, in light of the experience and knowledge of legal and social issues held by judges, they are among the best placed and qualified to do so. At present the majority of the decisions in the area of charity is left to the Charity Commissioners, with the courts only being employed where challenges to the Commissioner is made. Hence by refusing to consider the merits of the reform the judges are failing to utilise their authority and knowledge to reach a more agreeable resolution, instead draw a strict line to deal with all cases.
It is contested that judges are capable of deciding the public benefit of reform without losing their impartiality. Where the burden of proof regarding public benefit would lie on the organisation seeking charitable status. An objective test could be applied, this taking the form of agreement that the proposal was for the public benefit by 'all right thinking men'. The judges could also employ the public policy arguments as a standard of testing the merit of reform, this though would require a degree of value judgement on part of the courts. However, a more certain guide for the judges to follow could used, such as if the reform was promoting the objects of the European Convention on Human Rights. The use of such tests would enable decisions to be made concerning public benefit on a more logical basis than the quantitative approach, whilst not effecting the impartiality of the judiciary.
The use of such tests would reflect that charity and politics is inextricably linked and any attempt to separate the two with a concrete rule is unsatisfactory, where the role of many charities is to fill the gaps left by the government in their provision of services and benefits. The attainment of government support thus is often fundamental to the objects of the charity, as this will result in increased awareness and funding. Therefore political activity in this sense will be of great value to the charity, than the actual performing of charitable acts. The conservative approach of the courts may also be explained by fear of abuse if political activity was allowed. Where political organisations would take advantage of charitable status and the subsequent privileges to further their political goals. However, the stimulation of greater political debate is for the public benefit where the democratic process is aided by greater public awareness of fundamental issues regarding governmental policy.
In the USA, the overlap between charity and politics is acknowledged to a greater degree, resulting in the law being based on a more logical theory, fairness to the taxpayers. Where unfair burdens upon taxpayers to subsidise non-charitable activities has been significant in the limitation of political activity of charity, impartiality of the courts being irrelevant to the considerations. Although,a test of substantiality is also employed by the courts, there is a more liberal approach to towards the interpretation of charity and political activity.
Therefore the theory behind the need for political impartiality is flawed, with the judiciary being inherently bias. Whilst the overlap between politics and charity render the courts unable to remain impartial, however by refusing to consider the merits of political objects of charities, the courts are in practice favouring a particular construction of charity, one where organisations are inherently conservative and wholly concerned with welfare provision.
The rule in practice
The courts have proved inconsistent in their application of the rule over political activity, resulting in a the piercing of their veil of impartiality. For example, there is greater leniency towards existing charities in terms of the extent of their political activities. In Re Inman, a gift to an anti-vivisection society was held not charitable, as a result of the society seeking legislative reform. However, a gift to the RSPCA was charitable, despite the existence of objects to procure legislation where necessary to achieve their goals. The court is seen then, not to act impartially favouring existing charities, whilst denying other organisations of attaining charitable status.
Further bias is seen in the awarding of charitable status to organisations campaigning for the retention of current legislation. For example, the Lord's Day Observance society is a charity despite its object to oppose any changes in the laws regarding Sunday trading. This being explained by the courts perception of the law as inherently correct. However, this further accentuates the bias of the courts towards conservative charities which are content with the 'political status quo'.
If the perception of the correctness of the law was to be universally applied, the law would become static and worthless, without the courts being able to adapt it to contemporary needs, instead requiring Parliament to install reforms which will often involve delays. Furthermore, it is within the jurisdiction of the courts to depart from precedent and legislation. Even if the court is bound by authority of a higher court it can comment on possible reform. It is only through such judicial activism that the law can progress and remain flexible, this being for public benefit.
Once again, the USA have employed a more reasoned approach to solve similar issues. The judiciary acknowledging that it is not always possible to determine how society will be best served. Where contemporary opinions should not result in the limitation of charity to inhibit the progress necessary to meet the demands of future society.
As stressed, in application of the rule on political activity the courts have focused on the means employed by the organisation, recently, in the Charity Commssioners Guidelines, the style of activity was focused on prohibiting campaigning and pressuring MPs. The giving of advice, information and reasoned argument though is permitted, the extent of such activities being laid down on the Charity Commissioners guidelines. Through prohibiting charities to utilise particular methods of raising awareness of their cause, the courts are furthering their requirement of conservative conduct by charities. Despite this though, allowing charities to become involved in political policy making is a shift towards a more liberal approach, indicating recognition of the inextricable link between politics and charity.
Such an application of the rule in practice is seen to undermine the work of charities. For the uncertainty over the level of activity acceptable will lead to greater caution, thus undermining their campaign to raise awareness. However charities already with government funding may limit their political activities even further, in fear of losing funding if the government is upset by their conduct.
The courts therefore are seen to perpetuate a conservative view of charity, through its inconsistent application of the rule which favours existing charities. Furthermore by curbing the political activity of charities the court are actually limiting the potential benefits that the charity may provide, by inhibiting their means of fund raising.
Conclusion
The myth of judicial impartiality is therefore seen to undermine the rule on undertaking of political activity by charities. For with a flawed rationale as a basis for the rule the courts have lacked a firm foundation to develop their case law upon, therefore resulting in a rule that has proved shaky and inconsistent in its application. Whereas in USA, with a more logical basis for imposing such a rule, fairness opposed to the inability of the courts to judge, the courts have not been constrained by the need to uphold an illusion of impartiality. Consequently, the court is able to take a more flexible approach in resolution of the issues. Whilst in England, the inability to judge has resulted in the development of the quantitative test which has proved unsatisfactory in practice, in cases such as McGovern.
The scope of the court's ability to judge on public benefit is constrained by the quixotic requirement of impartiality in this area. For the court has proved capable of judging in the interests of public benefit in many other areas of law where public policy is applied, with the judges employing subjective value judgements. Although difficulties would certainly arise in cases where the support of a certain cause may lead to public discontent with the judiciary's decision, leading to genuine concerns over neutrality, more objective standards such as the ECHR may be as a guideline for the courts.
The courts moreover, have favoured an image of charity that is inherently conservative, consequently charities have had to adhere to such a construct to avoid loss of status. This highlights the impossibility of judicial impartiality, for even if decisions on public benefit may not be made concerning political activity, this fails to explain the regulating of how the ancillary political activities may be carried out. For by prohibiting the use of campaigning and lobbying, the courts along with the Charity Commissioners, are promoting their own construct of charities.
Although the courts have acknowledged that the assessing of public benefit was a question of degree, thus the court has flexibility in its decision making. However, in applying an 'hard and fast rule', the courts have overlooked the need for flexibility, in attempt to impose certainty and neutrality. Neutrality though has not been achieved and whilst with guidelines from the Charity Commissioners, there is now greater certainty over the degree of political certainty this has been at the expense of valuable charitable work. Where charities have been unable to carry out certain forms of campaigning which would increase their profile and subsequently funds, thus benefit the public.
Significantly, in light of the Charity Commissioners recent guidelines and Guild, where a more liberal approach was taken towards the definition of charity, this may indicate a general shift in judicial attitude. Thus it is possible that greater political activity will be permitted in accordance with the inevitable overlap between the two, resulting in a more satisfactory approach.
Bibliography
Charity Law & Voluntary Organisations (1976)
Chesterman. Charities, Trusts & Social Welfare (1979)
Clark. 'The limitation on political activities: A discordant note in the law of charities' (1960) 46 Virginia LR 439
Hackney. 'The politics of Chancery' (1981) 34 Current Legal Problems 113
Hanbury & Maudsley's Modern Equity . Martin (ed.) (1993) 14 th ed.
'McGovern v Attorney General' (1983) MLR 385
Moffat. Trusts Law. Text & Materials (1994) 2nd ed.
Nightingale. Charities (1973)
Sheridan. 'Charity vs Politics' (1973) 2 Anglo-American LR 47
