Catholic Care v Charity Commission
17th March 2010
The High Court today found that the charity Catholic Care can potentially discriminate against gay couples, by exploiting an ambiguous exemption to the Equal Rights (Sexual Orientation) Regulations 2007.
When the Regulations were introduced they were widely understood to be intended to prevent faith-based adoption agencies from discriminating against same-sex couples. Nevertheless, the Regulations do provide for a number of exceptions, in particular Regulation 18, which allows charities to apply to the Charity Commission to permit discrimination in limited circumstances.
Deciding an appeal from the Charity Tribunal, Briggs J found that the exemption is potentially available to all charities providing benefit to persons of a particular sexual orientation. The exemption is not restricted, as the Charity Commission had contended, to benefits provided directly to the supposed ultimate beneficial class of that charity (i.e. children for adoption). Discrimination against parents, as indirect beneficiaries, is therefore potentially permissible. Neither is the exemption restricted, as the Charity Tribunal had ruled in its earlier hearing, to private charitable activities not covered by any of the other Regulations.
The question of whether the charity will, in fact, be permitted to amend its constitution to allow it to discriminate, is referred back to the Charity Commission. In deciding this question, the Charity Commission must have regard to its own guidance on public benefit, in particular the principle that benefits must be balanced against any detriment or harm. Furthermore, as a public body, the Commission must act consistently with the rights incorporated by the Human Rights Act 1998, in particular Article 14, the freedom against discrimination. In leaving the decision to the Commission, Briggs J noted that existing European case law illustrated that particularly strong reasons would be needed to permit discrimination in adoption services. However, he also noted that Catholic Care’s status as an adoption agency of last resort and the needs of children that might otherwise go unadopted may constitute a special case.
Ultimately, Catholic Care’s adoption services are 80% funded by the local authority, a body which is also bound by Article 14, so it may be that this funding will dry up in the end. However, it is likely that other issues lurking in the background of this case will have more enduring significance. In particular, the Commission’s narrow interpretation of charitable benefit is likely to resurface, possibly to be challenged by independent schools and other fee-charging charities. Equally controversial is the extent to which the Commission should (or should not) impose Human Rights Act obligations on charities which are still, for the most part, private institutions even where they offer public services.
For further information or if you have any questions, please contact Michael King mk@stoneking.co.uk or Tom Murdoch tm@stoneking.co.uk.
Case Notes 17 March 2010
Catholic Care v Charity Commission and Equal Human Rights Commission 2010 EWHC 520 Ch
