Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor  EWHC 520 (Ch) (17 March 2010)
The England and Wales High Court has held that it is for the Charity Commission to determine whether discrimination against same-sex couples by a charitable organisation is justified.
In 2007, the Equality Act (Sexual Orientation) Regulations 2007 ('Regulations') were introduced in England. One significant effect of the Regulations was to make it unlawful for a person to discriminate on the grounds of sexual orientation in the provision of goods, facilities or services to the public, subject to certain exceptions.
Catholic Care is a charity that carries out a range of charitable activities, including the provision of adoption services. This adoption service focuses on 'hard to place children', being children who, for reasons of disability, age, ethnic origin or otherwise, it is harder than usual to find willing adoptive parents. Catholic Care carries out its adoption agency activities in accordance with the tenets of the Roman Catholic Church. As a result, Catholic Care refused to provide adoption services to same-sex cohabiting couples or civil partners.
In order to avoid contravention of the Regulations, Catholic Care sought to take advantage of an exception in reg 18 that applies to charities ('Exception'). The Exception makes it lawful to provide benefits only to persons of a particular sexual orientation where the charity is acting in pursuance of a charitable instrument which itself restricts the enjoyment of benefits to persons of that sexual orientation. A 'charitable instrument' in this context refers to the instrument establishing or governing the charity.
Catholic Care was governed by a Memorandum of Association, which did not restrict the enjoyment of benefits to persons of a particular sexual orientation. Therefore, Catholic Care sought to amend its Memorandum of Association to restrict the availability of its charitable services to heterosexual people in accordance with the tenets of the Church. However, in order to give effect to the proposed amendments, Catholic Care needed approval by the Charity Commission.
The Commission refused to approve the amendments to the Memorandum of Association. This is because the Commission considered that the Exception only enables charities and charitable instruments to restrict the class of persons who receive benefits from the charity based on the sexual orientation of those beneficiaries. The Tribunal reasoned that Catholic Care provides 'benefits' only to adopted children and not the parents. As a result, the Charity Tribunal concluded that the Exception allows Catholic Care to limit the provision of benefits to children of a particular sexual orientation, but not prospective adoptive parents of a particular sexual orientation. Therefore, any discrimination on the basis of the sexual orientation of prospective parents would be unlawful. In these circumstances, the Commission did not consider it necessary to deal with the human rights issues.
Catholic Care appealed to the Charity Tribunal. For different reasons to the Charity Commission, the Charity Tribunal dismissed the appeal. Catholic Care then appealed to the England and Wales High Court.
As a starting point, the High Court noted that the human right to non-discrimination was a qualified rather than absolute right. Justice Briggs noted that 'some forms of differential treatment may be justified…if undertaken for a legitimate aim and in a manner where the means employed are proportionate to the aim sought to be realised'. To this end, Catholic Care argued that through its adoption services, it served the legitimate aim of providing suitable adoptive parents for a significant number of children that would otherwise not be provided for. Further, the differential treatment by reference to the sexual orientation of prospective adoptive parents was a proportionate means of achieving that legitimate aim as there were other agencies willing to provide similar services to same-sex couples.
The Equality and Human Rights Commission intervened in this case and in response argued that it cannot be in the public benefit for a charity to discriminate in a way that breaches human rights. Whilst the High Court did consider these issues, the case was not decided on this basis.
The decision by Briggs J primarily focused on the correct interpretation of the term 'benefits' contained in the Exception to the Regulations at reg 18. As indicated above, the Charity Commission argued that the Exception only allows charities to restrict the provision of services based on the sexual orientation of the adopted children who are beneficiaries of those services. However, Briggs J found that limiting the interpretation of 'benefits' to apply only to adopted children 'was neither logical [nor] rational'. In rejecting the Commission's interpretation, Briggs J stated that 'Catholic Care...serves needy children by making benefits available to prospective adoptive parents'. He noted that while charities can loosely be described as serving a beneficial class, 'it is by no means uncommon for them to achieve that purpose by conferring benefits on persons outside that class'. As a result, Briggs J concluded that the term 'benefits' contained in the Exception to the Regulations had a broader meaning than was relied upon by the Charity Commission.
Justice Briggs therefore held that the Exception at reg 18 may apply to Catholic Care's practices, but this application is limited to the extent that such practices are justified according to the right to equality under the European Convention on Human Rights. It is therefore necessary to conduct an analysis of whether the refusal to provide services to same-sex couples is a justified limitation on the right to non-discrimination. Justice Briggs remitted the decision back to the Charity Commission to conduct this analysis and reconsider whether Catholic Care should be permitted to adopt the proposed changes to its Memorandum of Association.
Relevance to the Victorian Charter
Under reg 14 of the Regulations, religious organisations may discriminate against a person when providing services on the basis of the person’s sexual orientation, if this is necessary to comply with the doctrine of the organisation or to avoid conflicting with strongly held religious convictions. However, this exemption does not apply to religious organisations that provide services or fulfil functions on behalf of a public authority.
Catholic Care was a publicly funded body so it did not enjoy protection from reg 14. As a result, it was necessary for Catholic Care to rely on the Exception at reg 18 instead.
This situation can be contrasted to the situation under the Equal Opportunity Act 1995 (Vic) ('EO Act'). The EO Act contains a broad exception for religious organisations, which on its face allows all religious bodies to discriminate on the basis of various attributes, including sexual orientation, regardless of whether the organisation receives public funding or is performing of a contract for government.
However, this case adds to existing jurisprudence which supports the proposition that such an exception is not consistent with the broad right to equality under the Charter. As indicated in Ladele v London Borough of Islington  EWCA Civ 1357, whilst there is an absolute right to hold a religious belief, some limitations on a person's ability to manifest their religious beliefs are necessary for the protection of the rights and freedoms of others.
The decision is available at www.bailii.org/ew/cases/EWHC/Ch/2010/520.html.
Lara Werbeloff and Melanie Schleiger, Lander & Rogers