The news that the Catholic Adoption Agencies had lost their their case before the Charity Tribunal is sad but was certainly not unexpected, at least as far as I was concerned.
What the agencies were trying to do was to change their objects so as to add the following
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"
They argued that this would enable them to operate because of the exemption for Charities under reg 18 of the Sexual Orientation Regulations 2007
"18.—(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if—
(a) he acts in pursuance of a charitable instrument, and
(b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument"
From a legal point of view the Tribunals decision seems to me to be very questionable, the Tribunal said (para 21)
"regulation 18 could not be relied upon by the Appellant to permit activity which was no longer permitted, or which was made unlawful, by another regulation. As the Preliminary Ruling made clear, this was because the Tribunal understood regulation 18 to permit discrimination by charities only when their activities did not stray into the areas covered by the other regulations"
Frankly that is a legally fatuous remark and completely circular reasoning since if reg 18 only applies to activities which are not covered by the SOR's anyway then why would any Charity need to rely on reg 18 at all ? Before the comments section of this Blog gets overload I should add at this point that reg 18 is not some sinister " legal loophole" in the SOR's designed by cunning homophobes, it is the standard type of exemption given to Charities in every other area of Discrimination legislation so as to permit Charities(and we are only talking about Charities) to offer specific services to Women/Specific Races/Specific Nationalities/People with specific disabilities etc. If the Charity Tribunal decision stands unchallenged then every other Charity is now subject to every other type of Anti-Discrimination legislation and, incidentally, the commission decision makes it more difficult for there to be specific Charities providing services for Gay and Lesbian people.
However the irony is that even had the Catholic Charities won their case before the Tribunal it would have been a pyrrhic victory. As the Tribunal pointed out local authorities would refuse to deal with an Adoption Agency which was clearly and directly discriminatory in its objects and the Agency in that situation would have had no way to challenge such a refusal by a local authority.
Leaving aside the fact that the potential views of local authorities should have been irrelevant to the decision the Tribunal was supposed to be making which was whether the proposed change in objects was legal or not; the Tribunal was undoubtedly correct in their analysis. That is why I, as Director of the Thomas More Legal Centre have been advising Adoption Agencies for a year that they should amend their objects to read as follows
"The Charity shall not have power to engage in any activity which it knows, or reasonably believes, is contrary to the teaching of the Catholic Church; the formal opinion of the Bishop of [ ] shall be final in any question as to what is the teaching of the Catholic Church”
Such a provision in the objects of the Charity would, of course, have prevented them choosing either same sex, or unmarried heterosexual couples, as adoptive parents and they would have had to concentrate on married couples who according to the teachings of the Church (and millenia of human experience) are the appropriate unit to raise and nurture children. Had a local authority then refused to deal with one of the Catholic Agencies then the local authority would itself have been acting illegally by engaging in Religious Discrimination. Why none of the Catholic Agencies even tried this route I do not know. It certainly could not have been any more unsuccessful than the route they did choose.