Matthew Smith Maitland Chambers “The Catholic Adoption Case”: Religious Charities and the Equality Act 2010 Matthew Smith Maitland Chambers

Catholic Care Catholic adoption agency Specialising in “hard to place” children Adoption small but flagship part of work Constitution required operation in accordance with Roman Catholic understanding of family Reliant on support from collections at mass and Catholic schools

Catholic Care Sexual Orientation Regulations 2007 prohibited discrimination on grounds of sexual orientation No relevant exception on religious grounds Charity proposed amendment to objects to take advantage of charitable exception Issue: was charitable exception available?

Regulation 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 …

Regulation 18 (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.

Regulation 18 “(2) Nothing in these Regulations shall make it unlawful for the Charity Commission … to exercise a function in relation to a charity in a manner which appears to the Commission … to be expedient in the interests of the charity, having regard to the provisions of the charitable instrument”

Application to amend Application to amend governing instrument Commission refused to consent to amendments to governing instrument under section 64 of Charities Act 1993 (now section 198 of the 2011 Act) Appeal to Tribunal EHRC permission to intervene

Competing constructions Charity Commission: discrimination only permissible if discriminating in selection of beneficiary class Charity: discrimination permissible if a proportionate means of achieving public benefit EHRC: discrimination not for the public benefit so amended objects not charitable

Charity Commission’s argument The word “benefits” in Regulation 18 connotes benefits which it is the purpose of a charity to provide Catholic Care exists to provide benefits to children without families So Regulation 18 is not engaged by Catholic Care’s work with prospective parents

Charity’s argument Regulation 18 contains no express words of limitation Benefits is an ordinary English word Regulation 18(1) must be read in light of 18(2): discrimination is only permitted if it is expedient in the interests of the charity, whose objects are ex hypothesi for the public benefit

EHRC’s argument Discrimination on grounds of sexual orientation a “suspect class” “Convincing and weighty” reasons required No purpose incompatible with the ECHR could be for the public benefit, i.e. discriminatory body could not be charitable

Tribunal decision Tribunal decision: Regulations contemplated that discrimination by a charity could sometimes be justifiable discrimination impermissible in publicly-funded arena some scope to discriminate in the field of “pure charitable activity”

Arguments on Further Appeal Charity Commission: as below EHRC: as below Appellant: an additional, or alternative, limitation on the breadth of Regulation 18 is to read it compatibly with ECHR case law proportionate means to a legitimate aim

Court decision Briggs J – 17 March 2010 Reported at [2010] EWHC 520 (Ch) Discrimination permitted if a proportionate means of achieving a legitimate aim Remitted to Commission for fresh determination on evidence as to whether discrimination justified

Commission decision on remittal Commission decision (21 July 2010): evidence not sufficient to pass “convincing and weighty reasons” test Upheld on evidence by First-tier Tribunal (26 April 2011) and Upper Tribunal (Sales J - Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales [2013] 1 WLR 2105)

Equality Act 2010 Largely into force 1 October 2010 Imposed new duties on public authorities Harmonised equality and anti-discrimination legislation

Equality Act 2010 Protected characteristics: Age Disability Gender re-assignment Marriage and civil partnership Race Religion or belief Sex Sexual orientation

Direct Discrimination Section 13 (1) “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Indirect Discrimination Section 19 (1) “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.”

Prohibited Discrimination Section 29(1) “A person … concerned with the provision of a service to the public or a section of the public … must not discriminate against a person requiring that service by not providing the person with the service”

Some Exceptions (1) Section 13(2) – age discrimination OK if proportionate means of achieving a legitimate aim Section 13(3) – more favourable treatment for disabled persons Section 158 – positive action Section 195 – sport exception

Some Exceptions (2) Schedule 3 para 27 – single sex exception Schedule 9 – occupational requirements Schedule 11 – schools exceptions Schedule 14 – educational charities exceptions Schedule 23 – general exceptions (inc religious organisations)

Religious exceptions Paragraph 2 of Schedule 23 to the 2010 Act provides (so far as material) as follows: (1) This paragraph applies to an organisation the purpose of which is— (a) to practise a religion or belief, (b) to advance a religion or belief, (c) to teach the practice or principles of a religion or belief,

Religious exceptions (d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief, or (e) to foster or maintain good relations between persons of different religions or beliefs. (2) This paragraph does not apply to an organisation whose sole or main purpose is commercial.

Religious exceptions (3) The organisation does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by restricting- (a) membership of the organisation; (b) participation in activities undertaken by the organisation or on its behalf or under its auspices; (c) the provision of goods, facilities or services in the course of activities undertaken by the organisation or on its behalf or under its auspices; (d) the use or disposal of premises owned or controlled by the organisation.

Religious exceptions (4) A person does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by doing anything mentioned in sub-paragraph (3) on behalf of or under the auspices of the organisation.

Religious exceptions (5) A minister does not contravene Part 3, 4 or 7, so far as relating to religion or belief or sexual orientation, only by restricting— (a) participation in activities carried on in the performance of the minister's functions in connection with or in respect of the organisation; (b) the provision of goods, facilities or services in the course of activities carried on in the performance of the minister's functions in connection with or in respect of the organisation.

Religious exceptions (6) Sub-paragraphs (3) to (5) permit a restriction relating to religion or belief only if it is imposed— (a) because of the purpose of the organisation, or (b) to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.

Possible applications Church membership Denominational youth camps Care homes Benevolent/relief of poverty funds

Exception for charities 193 (1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if the person acts in pursuance of a charitable instrument, and the provision of the benefits is within subsection (2).

Exception for charities (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.

Charity Commission Guidance https://www.gov.uk/government/publications/equality-act-guidance-for-charities/equality-act-guidance-for-charities No good examples under section 193(2)(a) But religious motivation of supporters might in theory be available in light of Catholic Care

Matthew Smith Maitland Chambers 7 Stone Buildings Lincoln’s Inn London WC2A 3SZ Tel: 020 7406 1200 Fax: 020 7406 1300 E-mail: msmith@maitlandchambers.com