Sex discrimination – Discrimination on ground of sexual orientation

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales: Upper Tribunal (Tax and Chancery Chamber): 2 November 2012

The appellant was a Roman Catholic charity which had previously been involved in the provision of adoption services. At the end of 2008, the charity's practice of excluding homosexuals from the charity's adoption services became unlawful under the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263 (the Regulations). The charity sought to amend its memorandum of association to take advantage of a limited exemption for charities from the general law prohibiting discrimination on grounds of, inter alia, sexual orientation.

The exemption contained in regulation 18 of the Regulations and later section 193 of the Equality Act 2010 (the 2010 act), applied when the charity was acting by a charitable instrument. Accordingly, in order to continue the practice the charity's memorandum of association needed to make explicit that it would only provide its adoption services to heterosexual adoptive parents, and not to homosexuals.

The application was refused by the respondent Charity Commission (the Commission). Following appeals to the Charity Tribunal and the High Court (see [2010] 4 All ER 1041) the matter was remitted to the Commission for fresh consideration. In July 2010, the Commission again refused permission to amend the memorandum of association and the charity appealed to the First-tier Tribunal (General Regulatory Chamber) (Charity) (the tribunal).

The charity was required to raise additional voluntary income to support its activities in order to supplement the 'inter-agency' fee payable to voluntary agencies by local authorities when there was a successful placement. The tribunal considered, inter alia, the charity's claim that if it were not permitted to discriminate against homosexuals it would lose the funding stream of donations necessary to keep its adoption service running but accepted the Commission's submission that the negative attitudes of third parties could not, of itself, provide justification for discrimination on the ground of sexual orientation.

The tribunal heard evidence from an academic, Dr S, that the operation of the system for matching children and parents was affected by the inter-agency fee arrangements, which made local authorities wary about using voluntary adoption agencies for placements. That resulted in a surplus of potential adoptive parents on the books of voluntary adoptive agencies. Therefore, Dr S did not agree with the proposition advanced by the charity that its resources were increased by being able to engage in fund-raising under the auspices of the Roman Catholic Church, that would increase the number of adoption placements which would take place.

The tribunal preferred the evidence of Dr S of that issue. It was also noted that whilst a lengthy period had elapsed since the end of 2008 with the charity unable to provide adoption services, no evidence had been forthcoming from the local authorities with which the charity had worked to show that in practice there had been any significance problem in placing children for adoption as a result. The tribunal concluded that the charity could not show that it had grounds of sufficient strength to provide objective justification for the proposed discrimination as required by section 193 of the 2010 act, with the result that permission to amend the memorandum of association should be refused. The charity appealed.

The charity contended, inter alia, that its proposed mode of operation would be likely to assist children in need and hence was objectively justified. It submitted that the motivation of third-party donors for providing or nor providing voluntary funding for the adoption service was irrelevant to the question of objective justification, provided that such donors would be acting lawfully in acting as they did. It further submitted that if it were permitted to proceed with the proposed practice it would be likely to help children in need who would not otherwise be helped and acting to promote the vital interests of children in need by placing them with adoptive families.

The Commission contended that the private prejudice of charitable donors could not justify discrimination. Consideration was given to article 14 of the European Convention on Human Rights. The appeal would be dismissed.

(1) The motivation of third-party donors was capable of being relevant to the balancing exercise required under article 14 of the Convention. The latitude or width of the margin of appreciation to be allowed to a body to react to third-party pressures when engaging with the public might well be affected by the motivation of the third party (see [44] of the judgment).

(2) Notwithstanding the statements in the European authorities about the legitimacy and acceptability of views in favour of promoting traditional family life, it was also clear that even where a body acted in accordance with such views, if in doing so it discriminated against homosexuals it was still necessary for it to show that there were particularly convincing and weighty reasons justifying differential treatment (see [48] of the judgment).

In the instant case, the extent of the benefits to children and the likelihood that such benefits might be achieved were relevant considerations to be taken into account in determining whether weighty and convincing grounds had been established to justify the proposed discrimination against homosexuals. However, the analysis of the tribunal, rejecting the claim of the charity that discrimination against homosexuals would be likely to improve the prospect of increasing the number of children placed with adoptive families in a significant way, could not be faulted. It disclosed no error of law.

There had been evidence before the tribunal which had entitled it to conclude that, for reasons associated with the operation of the inter-agency fee arrangements, the legitimate aim identified by the charity would not be achieved by its proposed method. There was not a 'material probability' that the number of children placed in adoptive care would be increased by the charity's work. The tribunal had been right to conclude that the charity could not show that there were weighty and convincing reasons why it should be permitted to change its memorandum of association to enable it to discriminate against homosexuals as it proposed (see [54], [55] of the judgment). P (adoption: unmarried couple), Re [2008] 2 FCR 366 distinguished; Karner v Austria (Application 40016/98) [2003] ECHR 40016/98 considered; Kozak v Poland (Application no 13102/02) [2010] 51 EHRR considered.

(3) It was an established principle that the mere fact that some people might feel upset if homosexuals were accorded equal treatment in some area of life could not, of itself, provide objective justification for discrimination on grounds of sexual orientation. However, if as a consequence of some people having prejudices about or negative attitudes towards homosexuals, some real detriment to public interest, of sufficient weight, might arise unless a practice discriminating against them were adopted, then in principle it was possible under article 14 of the Convention and section 193 of the 2010 act for such a practice to be found to be proportionate to the legitimate aim of preventing that determinant or harm and hence objectively justified (see [38] of the judgment).

In the instant case, the tribunal had been right to consider the question of justification as it had (see [38] of the judgment). Smith v United Kingdom (Applications 33985/96 and 33986/96) [1999] ECHR 33985/96 considered.

Monica Carss-Frisk QC and Matthew Smith (instructed by Wallace LLP) for the charity; Emma Dixon (instructed by Legal Services London, Charity Commission) for the Commission.