It is reported that the UN Committee against torture is to issue a report criticising the Holy See regarding how it has dealt with allegations of sex abuse by Priests and others throughout the world. Whilst I am in no way acting as an apologist for child abuse I am concerned at the fact that the Committee is issuing this report which seems to me to go way beyond its legitimate role and the wording of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Holy See has two separate though closely linked international legal identities. It is the spiritual head of the Catholic Church throughout the world and is also the Government of the physical territory of the Vatican State. The only territory which can be described as a "territory under
its [the Holy Sees] jurisdiction" is the physical territory of the Vatican State and also Papal Nunciatures which have the status of Embassies in those countries which have diplomatic relations with the Holy See. All other Catholic religious organisations, Dioceses, Churches etc fall under the legal jurisdiction of the various Countries in which they are situated.
This distinction is important for the purpose of the Convention Article 2.1 of which says (my emphasis)
"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
The phrase "in any territory under its jurisdiction" is repeated in Articles, 5, 11, 12, 13, 16 of the Convention and "territory" appears in Articles 6, 7, 20 . Therefore under the Convention as it is worded the Holy See should only be answerable for any alleged infringements of the Convention committed within the territory of the Vatican State not and not for alleged breaches committed, whether by Catholic Priests or others, in the territory of other signatory states. The Committee, which is established under Articles 17 - 20 of the Convention, therefore appears to be acting way beyond its remit and the remit of the Convention itself.
Furthermore there is a real question mark as to whether child abuse, however horrible, can properly be construed as "torture or other cruel, inhuman or degrading treatment or punishment." as defined in the Convention.
Article 1.1 of the Convention defines Torture as follows (my emphasis)
"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
whilst Article 16.1 adds (my emphasis)
"Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Child abuse for the personal sexual abuse of the individual does not fall within the definitions in either Articles 1 or 16 and in addition Priests etc are not "public officials acting in an official capacity" therefore once again the alleged acts fall far short of the criteria of the Convention and the lawful remit of the Committee,
I appreciate that this Blog can be, and undoubtedly will be, criticised as "legalistic" but all I am saying is that the law, in this case, an international Convention, should mean what it says and should not be hijacked or distorted to make it become something it clearly is not and was never intended to be.
The Catholic Church can be and should be criticised for mishandling of Child Abuse but not by this Committee claiming to be acting in the name of and under the authority of this Convention
Friday, 23 May 2014
Friday, 16 May 2014
Same-sex marriage: Legal Rights for Churches
The Christian Institute has issued an excellent guide to the rules and exemptions covering Churches and Marriage now that the Marriage (Same Sex Couples) Act 2013 is in force.
Details are HERE and you can download the Guide itself.
Details are HERE and you can download the Guide itself.
Thursday, 8 May 2014
Greece v Galloway - Town Council Prayers in the US
In the case of Town of Greece v Galloway 572 U.S. ____ (2014) the United States Supreme Court has decided that that prayers before the opening of meetings of a Town Council does not violate the Ist Amendment to the U.S. Constitution which prohibits
"an establishment of religion".
The case has echoes of the English case of Bone v Bideford Town Council [2012] EWHC 175 (Admin) (discussed in my 10 February Blog)
The case emerged after two women filed suit against the town of Greece in New York, claiming that the town’s practice of opening town council meetings with prayer violated the 1st Amendment. The facts presented in the case indicated that the vast majority of citizens who prayed were Christians, and that their prayers were Christian in content. The women charged that this practice violated the Establishment Clause of the Constitution. They did not demand that the practice of prayers before council meetings cease, but demanded that the prayers offered should be “inclusive and ecumenical prayers” and that all references would be to a “generic God.”
The Court ruled that the practice of the Town Council did not, in fact, violate the 1st Amendment and more interestingly rejected the entire concept of requiring prayer to be “nonsectarian prayer” to a “generic God.” As the Court stated:
"To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech."
In looking at the background to the case the Supreme Court noted that the town Council followed an informal method for selecting prayer givers, a town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town at no point excluded or denied an opportunity to a would-be prayer giver. A minister or layperson of any persuasion, could give the invocation. But nearly all of the congregations in town were Christian; and the participating ministers were too. The Town Council neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content. On one occasion a Wiccan Priestess applied to give the prayers and was allowed to do so.
Justice Kennedy, giving the majority ruling in the case noted that that today’s interpretation of the Constitution must be guided by the actual practices of the framers. In other words, the Constitution must not be read to forbid what the framers of the document unquestionably allowed. He also quoted with approval the memorable words of Goldburg J in Abington School District v. Schempp
“untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”
Justice Kennedy also added
Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.
A point regarding tolerance that our National Secular Society should perhaps think about
"an establishment of religion".
The case has echoes of the English case of Bone v Bideford Town Council [2012] EWHC 175 (Admin) (discussed in my 10 February Blog)
The case emerged after two women filed suit against the town of Greece in New York, claiming that the town’s practice of opening town council meetings with prayer violated the 1st Amendment. The facts presented in the case indicated that the vast majority of citizens who prayed were Christians, and that their prayers were Christian in content. The women charged that this practice violated the Establishment Clause of the Constitution. They did not demand that the practice of prayers before council meetings cease, but demanded that the prayers offered should be “inclusive and ecumenical prayers” and that all references would be to a “generic God.”
The Court ruled that the practice of the Town Council did not, in fact, violate the 1st Amendment and more interestingly rejected the entire concept of requiring prayer to be “nonsectarian prayer” to a “generic God.” As the Court stated:
"To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech."
In looking at the background to the case the Supreme Court noted that the town Council followed an informal method for selecting prayer givers, a town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town at no point excluded or denied an opportunity to a would-be prayer giver. A minister or layperson of any persuasion, could give the invocation. But nearly all of the congregations in town were Christian; and the participating ministers were too. The Town Council neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content. On one occasion a Wiccan Priestess applied to give the prayers and was allowed to do so.
Justice Kennedy, giving the majority ruling in the case noted that that today’s interpretation of the Constitution must be guided by the actual practices of the framers. In other words, the Constitution must not be read to forbid what the framers of the document unquestionably allowed. He also quoted with approval the memorable words of Goldburg J in Abington School District v. Schempp
“untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”
Justice Kennedy also added
Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.
A point regarding tolerance that our National Secular Society should perhaps think about
Friday, 25 April 2014
Christian Youth Camps - Victoria Supreme Court
The Supreme Court of Victoria (Australia) has issued a worrying and questionable decision regarding a refusal by a Christian Youth Camp to refuse a booking by a Gay Rights Organisation. The Judgment Christian Youth Camps v Cobaw Community Health Service [2014] VSCA 75 is carefully analysed and dissected by Professor Neil Foster of Newcastle Law School in New South Wales.
He has kindly put his analysis on the Internet and since I cannot possibly improve on what he has said I simply provide the link to Download his article
He has kindly put his analysis on the Internet and since I cannot possibly improve on what he has said I simply provide the link to Download his article
Tuesday, 4 March 2014
Church of Jesus Christ of Latter-Day Saints v. the United Kingdom
The European Court of Human Rights in Church of Jesus Christ of Latter-daySaints v. the United Kingdom (also in PDF) has unanimously dismissed a case brought by the Church of Jesus Christ of Latter-day Saints (often called the Mormon Church) claiming a breach of Article 9 of the European Convention on Human Rights
The case related to the issue of Rate Relief for one of the two LDS Temples in Britain, namely the one in Preston, Lancashire. A Temple is considered, by the LDS Church to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. According to para 7 of the Judgment the right to enter a Temple is explained by the Church as follows:
“WORTHY TO ENTER
You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...
The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...
THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING”
The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations.
The specific case concerned the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. Other buildings of the Church such as its various Chapels are open to the public and attract the normal 100% rates relief.
On 5 March 2001 the Church applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The Church appealed unsuccessfully to the Court of Appeal and then appealed to the House of Lords.
In that hearing Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56 the Church argued for the first time that refusal of Rates Relief amounted to a breach of Article 9 but the House of Lords unanimously dismissed the appeal holding, on the basis of an earlier judgment (Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that was open to the general public. (NB: The Henning case had concerned the other LDS Temple in Surrey)
The Government in its arguments to the ECHR did not accept that the LDS Church was in any different position in relation to the 1988 Act than any other religious organisation. The rule was of general application and concerned only the use made of the building; it did not discriminate on the basis of religious belief. Any of the Mormon places of worship, such as chapels and stake centres, that were open to the public, had the benefit of rates the exemption. The Government pointed out as an example that where Church of England churches were run by closed orders or as college chapels which were not open to the public they too did not get rates relief,
The LDS Church put in a very interesting argument summarised in para 21 of the judgment
Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in.
However the argument was unsuccessful the Court fully accepting the reasoning of the House of Lords. The case fell within the margin of appreciation given to individual states and the UK was entitled to decide that tax reliefs should only be given to places of religious worship which were open to the public and so provided "public benefit"
The case related to the issue of Rate Relief for one of the two LDS Temples in Britain, namely the one in Preston, Lancashire. A Temple is considered, by the LDS Church to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. According to para 7 of the Judgment the right to enter a Temple is explained by the Church as follows:
“WORTHY TO ENTER
You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...
The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...
THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING”
The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations.
The specific case concerned the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. Other buildings of the Church such as its various Chapels are open to the public and attract the normal 100% rates relief.
On 5 March 2001 the Church applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The Church appealed unsuccessfully to the Court of Appeal and then appealed to the House of Lords.
In that hearing Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56 the Church argued for the first time that refusal of Rates Relief amounted to a breach of Article 9 but the House of Lords unanimously dismissed the appeal holding, on the basis of an earlier judgment (Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that was open to the general public. (NB: The Henning case had concerned the other LDS Temple in Surrey)
The Government in its arguments to the ECHR did not accept that the LDS Church was in any different position in relation to the 1988 Act than any other religious organisation. The rule was of general application and concerned only the use made of the building; it did not discriminate on the basis of religious belief. Any of the Mormon places of worship, such as chapels and stake centres, that were open to the public, had the benefit of rates the exemption. The Government pointed out as an example that where Church of England churches were run by closed orders or as college chapels which were not open to the public they too did not get rates relief,
The LDS Church put in a very interesting argument summarised in para 21 of the judgment
Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in.
However the argument was unsuccessful the Court fully accepting the reasoning of the House of Lords. The case fell within the margin of appreciation given to individual states and the UK was entitled to decide that tax reliefs should only be given to places of religious worship which were open to the public and so provided "public benefit"
Friday, 28 February 2014
Prosecution in Australia of Unregistered Muslim Marriage
The issue of unregistered Muslim Marriages is something I have Blogged on in the past see http://religionlaw.blogspot.co.uk/2010/02/muslim-marriages-4.html where I give links to my other Blogs on this subject.
I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.
There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.
In Australia it has been reported that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.
It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our Marriage Act in the same way as the Australian Police are enforcing theirs
I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.
There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.
In Australia it has been reported that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.
It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our Marriage Act in the same way as the Australian Police are enforcing theirs
Wednesday, 5 February 2014
St Margaret’s Children and Family Care Society (3) SCAP Judgment
The decision in the case of St Margaret's Children and Family Care Society v Office of the Scottish Charity Regulator has been published on the website of the Scottish Charity Appeal Panel and it makes interesting and at times confusing reading. For the past history of this case and the English Adoption Agencies see HERE and HERE
It is of course a decision at first instance so it is not binding on any other Court or Tribunal however it is a decision which is likely to be highly persuasive in any other Case involving a Religious Charity so it is worth the trouble of reading in detail.
The Judgment emphasises that the case is largely based on the specific facts of the operations of St Margarets and indeed the main criticism it makes of OSCR is that it was applying a blanket approach that assumed St Margarets was breaking the Equality Act and therefore it should be removed from the Charity Register. One point that is made in the judgment more than once is that there was no complaint made about St Margarets by any prospective adoptive couple either same sex or heterosexual and the investigation by OSCR was based on a purely theoretical complaint from the National Secular Society. In this respect paras 740 - 810 are interesting because they looks at the reason why OSCR was threatening to remove St Margarets from the Register namely because, in the opinion of OSCR, St Margarets was breaching the Equality Act and therefore did not offer "public benefit" which is a requirement of Charity Registration in Scotland (and also in England)
"It appears to The Panel, ......, that [OSCR] simply took the view at an early stage that any type of discrimination which breached The Equality Act amounted to a disbenefit sufficient to fail The Public Benefit Test.
This approach was in The Panel's view erroneous and the Public Benefit Test was incorrectly applied .........
The Panel is of the view that it is not as simple to say that if The Equality Act is breached then the Public Benefit Test is not met and any guidelines contrary to that view should be revised by [OSCR]...... The contribution to society of an adoption service is part of the activities of The Appellant which does provide a Public Benefit in the charity law sense of that phrase and had the test been properly applied The Respondent would have quite correctly considered there to have been Public Benefit in those activities."
This may be of help to any Charity which is accused in the future of breaching the Equality Act. Any such breach does not mean that the Charity should automatically cease to be a Charity. If there are breaches of the Equality Act then such breaches should be dealt with in accordance with the regulatory provisions of the Equality Act and not by refusing or removing Charitable status.
Of a more general application is the fact that SCAP found that St Margarets was a "Religious Organisation" for the purpose of Schedule 23 of the Equality Act (which provides exemptions for Religious Organisations) and was also a "manifestation" of Religion for the purposes of Article 9 of the European Convention of Human Rights. It was argued by OSCR that St Margarets was simply an Adoption Agency and therefore was not "religious" Paras 470 - 490 are fascinating in this respect
"The Catholic Church understands charity as a fundamental aspect of the life of the Church. It is not something that the Church does, but something that the Church is, and which defines the Church's nature. Charitable activity within and for the wider community is seen to be an essential part of the religious mission, witness and outreach of the Catholic Church (Benedict XVI Encyclical Deus Caritas Est (2005))."
"Catholic laity have the right under Canon Law (Canon 1030 of the Code of Canon Law) to form charitable agencies under the auspice of the Catholic church. Such Catholic charities are required as a matter of Catholic Canon Law to follow Catholic principles in their activity and they may not accept commitments which could in any way affect the observance of those principles. (Benedict XVI " Apostolic Letter "On the Service of Charity"
Whilst in Para 1000 referring to the evidence given by a Director of St Margarets
"the Catholic Faith was a lifestyle more than the mechanics of attending a church and part of that lifestyle was the importance of stable family relationships found within married couples. He [the witness] referred to Matthew 25 from the New Testament as his pointer and what he considered The Appellant's organisation was all about. ('Lord, when did we see you hungry and feed you, or thirsty and give you a drink? When did we see you as a stranger and welcome you, or naked and give you clothes to wear? When did we see you sick or in prison and visit you?' "Then the king will reply to them, 'I assure you that when you have done it for one of the least of these brothers and sisters of mine, you have done it for me.)
and Para 1090
"The Panel does not agree with The Respondent that The Appellant is
merely an Adoption Agency or a non-religious charity simply because its main purpose appears not to be to conduct worship services. There are other religious charities for example who do not worship a deity but are
entitled to be charities and The Act does not define religion and belief as exclusively for worship, hymn singing, services and sacraments. Differing religions and differing charities whose principal purpose is the advancement of religion carry out these activities to a greater or lesser extent.
The Panel is of the view that The Appellant is a Religious Charity and there are the essential characteristics to make it so. As a Religious Charity it is able to rely on Article 9 on its own behalf and on behalf of its members."
How the future will lie for St Margarets is difficult to say. it is likely that OSCR will decide not to Appeal because the Panels decision on the very narrow point of "public Interest" was, legally speaking, the crucial point in relation to the powers and the actions of OSCR and the Panels decision on that point seems unassailable. St Margarets may however be faced with further legal action from the Equality and Human Rights Commission and no doubt from the troublemakers of the National Secular Society. What really gets to me is that the NSS don't do anything themselves to help Children or indeed to help anyone they simply criticise and try to change the good works done by others.
It is of course a decision at first instance so it is not binding on any other Court or Tribunal however it is a decision which is likely to be highly persuasive in any other Case involving a Religious Charity so it is worth the trouble of reading in detail.
The Judgment emphasises that the case is largely based on the specific facts of the operations of St Margarets and indeed the main criticism it makes of OSCR is that it was applying a blanket approach that assumed St Margarets was breaking the Equality Act and therefore it should be removed from the Charity Register. One point that is made in the judgment more than once is that there was no complaint made about St Margarets by any prospective adoptive couple either same sex or heterosexual and the investigation by OSCR was based on a purely theoretical complaint from the National Secular Society. In this respect paras 740 - 810 are interesting because they looks at the reason why OSCR was threatening to remove St Margarets from the Register namely because, in the opinion of OSCR, St Margarets was breaching the Equality Act and therefore did not offer "public benefit" which is a requirement of Charity Registration in Scotland (and also in England)
"It appears to The Panel, ......, that [OSCR] simply took the view at an early stage that any type of discrimination which breached The Equality Act amounted to a disbenefit sufficient to fail The Public Benefit Test.
This approach was in The Panel's view erroneous and the Public Benefit Test was incorrectly applied .........
The Panel is of the view that it is not as simple to say that if The Equality Act is breached then the Public Benefit Test is not met and any guidelines contrary to that view should be revised by [OSCR]...... The contribution to society of an adoption service is part of the activities of The Appellant which does provide a Public Benefit in the charity law sense of that phrase and had the test been properly applied The Respondent would have quite correctly considered there to have been Public Benefit in those activities."
This may be of help to any Charity which is accused in the future of breaching the Equality Act. Any such breach does not mean that the Charity should automatically cease to be a Charity. If there are breaches of the Equality Act then such breaches should be dealt with in accordance with the regulatory provisions of the Equality Act and not by refusing or removing Charitable status.
Of a more general application is the fact that SCAP found that St Margarets was a "Religious Organisation" for the purpose of Schedule 23 of the Equality Act (which provides exemptions for Religious Organisations) and was also a "manifestation" of Religion for the purposes of Article 9 of the European Convention of Human Rights. It was argued by OSCR that St Margarets was simply an Adoption Agency and therefore was not "religious" Paras 470 - 490 are fascinating in this respect
"The Catholic Church understands charity as a fundamental aspect of the life of the Church. It is not something that the Church does, but something that the Church is, and which defines the Church's nature. Charitable activity within and for the wider community is seen to be an essential part of the religious mission, witness and outreach of the Catholic Church (Benedict XVI Encyclical Deus Caritas Est (2005))."
"Catholic laity have the right under Canon Law (Canon 1030 of the Code of Canon Law) to form charitable agencies under the auspice of the Catholic church. Such Catholic charities are required as a matter of Catholic Canon Law to follow Catholic principles in their activity and they may not accept commitments which could in any way affect the observance of those principles. (Benedict XVI " Apostolic Letter "On the Service of Charity"
Whilst in Para 1000 referring to the evidence given by a Director of St Margarets
"the Catholic Faith was a lifestyle more than the mechanics of attending a church and part of that lifestyle was the importance of stable family relationships found within married couples. He [the witness] referred to Matthew 25 from the New Testament as his pointer and what he considered The Appellant's organisation was all about. ('Lord, when did we see you hungry and feed you, or thirsty and give you a drink? When did we see you as a stranger and welcome you, or naked and give you clothes to wear? When did we see you sick or in prison and visit you?' "Then the king will reply to them, 'I assure you that when you have done it for one of the least of these brothers and sisters of mine, you have done it for me.)
and Para 1090
"The Panel does not agree with The Respondent that The Appellant is
merely an Adoption Agency or a non-religious charity simply because its main purpose appears not to be to conduct worship services. There are other religious charities for example who do not worship a deity but are
entitled to be charities and The Act does not define religion and belief as exclusively for worship, hymn singing, services and sacraments. Differing religions and differing charities whose principal purpose is the advancement of religion carry out these activities to a greater or lesser extent.
The Panel is of the view that The Appellant is a Religious Charity and there are the essential characteristics to make it so. As a Religious Charity it is able to rely on Article 9 on its own behalf and on behalf of its members."
How the future will lie for St Margarets is difficult to say. it is likely that OSCR will decide not to Appeal because the Panels decision on the very narrow point of "public Interest" was, legally speaking, the crucial point in relation to the powers and the actions of OSCR and the Panels decision on that point seems unassailable. St Margarets may however be faced with further legal action from the Equality and Human Rights Commission and no doubt from the troublemakers of the National Secular Society. What really gets to me is that the NSS don't do anything themselves to help Children or indeed to help anyone they simply criticise and try to change the good works done by others.
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