Catholic Care v Charity Commission (4)

The latest round in the legal saga of the Catholic Care Adoption Agency and the Charity Commission has been concluded in the Upper Tribunal decision released today.  

I have blogged about this case before on 3 June 2009 the 23 August 2010 and 26 April 2011 and there is little more to be said

What the Agency was trying to do was to change its 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"

It argued that this would enable them to operate because of the exemption for Charities under Section 193 of the Equality Act 2010  which says

193(1)A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if—
(a)the person acts in pursuance of a charitable instrument, and
(b)the provision of the benefits is within subsection (2).
(2)The provision of benefits is within this subsection if it is—
(a)a proportionate means of achieving a legitimate aim, or
(b)for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

In my view the drafting of this clause was alway fundamentally flawed and the application was foredoomed to failure because it was directly, explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services 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."

Worryingly in its judgment despite spending a lot of time talking about the importance of any decision being based on evidence the Upper Tribunal in para 29 endorses the decision by the First Tier Tribunal to have regard to an unsolicited letter sent by the "Roman Catholic Caucus of the Lesbian and Gay Christian Movement" (whoever they are) even though the "Caucus" was not a party to the litigation and provided no facts to support its assertions.  

There are no new or startling points in the judgment though it is worth noting that the Hon Mr Justice Sales did reject, in paras 45 a suggestion by the Charity Commission that the views of the Catholic Church on Same Sex Adoption could be compared to racism

"In my opinion, donors motivated by respect for Catholic doctrine to have a preference to support adoption within a traditional family structure cannot be equated with racist bigots, as Ms Dixon sought to suggest. Such views have a legitimate place in a pluralist, tolerant and broadminded society," 

In para 44 the Judge said

"44.  It is very unlikely indeed that insistence by a donor who was a racist bigot that some benefit be conferred on children in need, but only if they are of a particular race, would be found to justify a body in providing that benefit to classes of person limited in that way. That would involve a gross intrusion upon the values which should be expected to be promoted in the public domain in accordance with the European Convention on Human Rights, which seeks to foster a democratic society marked by pluralism, tolerance and broadmindedness"

and I must say I am troubled by this attitude to Charity even though it is wrapped up in high minded prose.  Surely the very idea of Charity is the free giving by individuals and organisations to help others according to their decisions as to what causes they consider are worthy of support. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government, or the Courts have to interfere with that choice ?
 

On a sadder and more worrying point the Judge noted in para 47

47: The interest of promoting the traditional family on which the Charity relies has not been endorsed by the national authorities.