The First-Tier Tribunal (Charity) General Regulatory Chamber which has replaced the previous Charity Tribunal has issued its judgment in the case of Catholic Care Leeds v Charity Commission which is the latest round of a lengthy legal process involving two Decisions by the Charity Commission, two Tribunal Judgments and a High Court Judgment.
All of this has involved an attempt by Catholic Care to amend its Charitable objects to read
"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"
but this application was refused by both the Commission and the Tribunal.
I have Blogged about this case before 23 August 2010 and 9 June 2009 and have little to add to what I said previously. Catholic Care has been pursuing the wrong legal remedy throughout this case and should have tried to achieve its objectives another way
There was a Press Release Summary sent to the media accompanying the Judgment and I attach it below
1. This case concerned an appeal by Catholic Care (Diocese of Leeds) a charity, against the decision of the Charity Commission to refuse its consent to a change of charitable objects. The charity wanted to change its objects so as to bring itself within an exemption to the Equality Act 2010 and thus be allowed to refuse to offer adoption services to same sex couples.
2. The Tribunal has dismissed the charity's appeal for the reasons given below.
3. This matter has had a complicated procedural history and has been affected by changing legislation over the past 2 years or so (paras 2-5) The test the Tribunal had to apply was under s. 193 of the Equality Act 2010 which exempts charities from the equality obligations of the Act, where the Charity (a) acts in pursuance of a charitable instrument - ie their charitable objects require it and (b) it is a proportionate means of achieving a legitimate aim.
4. It was accepted by the charity that discrimination on the basis of religious belief alone would be unlawful - para 14 - so this was not in issue. The Bishop of Leeds gave evidence in which he expressed the view that the law should respect the Catholic Church's views on this issue in the same way that it allows Churches not to have to bless civil partnerships. However, adoption is a public service, funded (in part) by local authorities, so does not have the same exemptions under the 2010 Act as those which cover private religious worship (para 60);
5. The charity argued that the discrimination should be permitted because:
(I) Same sex couples could obtain adoption services from local authorities and other voluntary agencies so would not suffer detriment if the charity alone refused them services;
(II) The charity can only operate its adoption service with the assistance of donated income, and its supporters would stop supporting it financially if it did not discriminate, so it would have to close if the discrimination were not permitted;
(III) The closure of the service was such a serious consequence that the discrimination proposed was proportionate to the aim pursued, which was that of seeking to increase the number of adoptions which take place;
(IV) The charity can attract potential adopters that other agencies would not attract because of its distinctive approach.
6. The Tribunal found that:
(I) There must be particularly weighty reasons to justify discrimination on the basis of sexual orientation, which is a protected characteristic under the 2010 Act (para 53);
(II) Same sex couples would suffer a significant detriment by not being able to use the charity's own high quality service. The availability of other services to same sex couples could not amount to a justification for discrimination by the charity (para 53 again);
(III) The charity had not made out its case that its donors would cease to support it if it offered adoption services to same sex couples. Its accounts showed that its donated income is not restricted to its adoption services but applicable for all of its work; it produced no evidence of the views of donors, only the Bishop's opinion on this point; the discriminatory views of 3rd parties cannot in any event justify discrimination by the charity (paras 54 - 57);
(IV) As to the risk of closure, the charity has not yet explored all the alternatives. Other Catholic charities have found alternative means of operating since the law changed. The expert evidence heard by the Tribunal contradicted the charity's case that if it were to close, children would be left un-adopted (para 58).
(V) The charity did not prove its assertion that an increase in its resources would inevitably lead to more adoptions taking place, because the Tribunal found that the expert evidence about the local authority funding arrangements for adoptions did not support the charity's case in this regard (para 49).