Head in the sand?
The charity Tribunal has ruled that Catholic Care...
...(see news review in Caritas, issue 17 April 2009) is not allowed to discriminate against same sex couples wishing to use its adoption services. The Charity Commission had refused permission to make the amendment to its objects, so the charity appealed this decision. Father Hudson’s Society withdrew its original application after the Charity Tribunal’s preliminary ruling in February 2009.
Catholic Care has never provided adoption services to same sex couples, but following the introduction of the Equality Act (Sexual Orientation) Regulations 2007, such discrimination would be unlawful unless the charity could rely on the specific exemption for charities contained in reg. 18. The charity was given the opportunity at the preliminary hearing to present details of how it intended to operate in future and comply with (a) the Tribunal’s preliminary ruling and (b) its own proposed objects. But it maintained it would continue as before and that it should be exempt. The appeal was therefore dismissed.
Catherine Rustomji of Hempsons and secretary of the Charity Law Association told Caritas:
‘Many commentators had doubts that the amended objects would have passed the public benefit test. In any event, it was not necessary for the tribunal to decide this point but it did express doubt that the proposed alteration was specifically designed to advance the charity’s purpose, rather than maintain a principled stance on an issue.
‘This case is important in terms of understanding the remit of the Commission’s decision-marking under
s. 64, as well as learning more about how the tribunal will conduct cases and make rulings. It was clear that the tribunal is keen to help charities but will also flex its strength in criticising what it saw as possible intimidating tactics by the Commission.’
Glynis Craig, a senior lawyer at the Equality and Human Rights Commission added:
‘The Equality and Human Rights Commission (EHRC) has power under s.30 Equality Act 2006 to intervene in legal proceedings which are relevant to the EHRC’s work.
‘This case clearly was of interest to the EHRC as it concerned the circumstances in which charities can lawfully discriminate against some groups. In general, charities cannot operate in a way that is discriminatory but there are some circumstances where it is lawful for them to do so.
‘This case involved the exceptions for charities under the Sexual Orientation Regulations. There are, however, similar exceptions for charities in relation to sex and race discrimination. The EHRC explained to the Tribunal that the exceptions for charities would not apply in this situation as the adoption work carried out by the charities was essentially a public function as it is carried out on behalf of, and paid for by, local authorities. Furthermore, the EHRC argued that the Charity Commission could only permit a charity to change its charitable objects if satisfied that it met the public benefit test under s. 3 Charities Act 2006. That test must be interpreted compatibly with s. 3 Human Rights Act and permission could not be granted if the effect of changing the object would amount to discrimination. Such a change would have been discriminatory in this case.’
Author: Clarissa Dann
Clarissa Dann is the Editor of Caritas, Charity Funding Report and Codicil.
Clarissa has a background in legal and professional publishing, as well as business journalism and holds an MBA from
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