Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor

Regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 is not confined to benefits provided directly to a charity’s ultimate beneficiaries or to purely private charitable activity. It may apply where a charity achieves its public purpose by providing benefits to others, such as carers or prospective adoptive parents.

The exception must, however, be construed compatibly with Convention rights. It permits differential treatment on grounds of sexual orientation only where that treatment is justified under Article 14 as a proportionate means of achieving a legitimate aim. The Charity Commission must apply that test when exercising its regulatory powers under Regulation 18(2).

Catholic Care operated a charitable adoption agency serving the Diocese of Leeds. It sought the Charity Commission’s consent under section 64 of the Charities Act 1993 to amend its objects so that adoption services would be provided only to heterosexuals, in accordance with Roman Catholic doctrine.

The Commission refused consent, construing Regulation 18(1) as applying only to benefits provided to a charity’s intended beneficiaries. The Charity Tribunal rejected that construction but adopted a different interpretation, under which Regulation 18 applied only to a narrow field of purely charitable activity outside Regulations 14 and 15. It dismissed Catholic Care’s appeal after concluding that no useful purpose would be served by approving the amendment.

The central issues were the proper construction of Regulation 18 and whether the proposed differential treatment could be justified under Article 14 of the Convention.

1. The appeal was allowed in relation to the Tribunal’s interpretation of Regulation 18. The Commission’s construction was also wrong. “Benefits” was not confined to benefits provided directly to the ultimate beneficial class of a charity. A charity may achieve its purpose by conferring benefits on persons outside that class, including carers or prospective adoptive parents.

2. Regulation 18 was not confined to purely private charitable activity, nor was it mutually exclusive of Regulations 13, 14 or 15. Its opening words showed that it could operate where another provision of the Regulations might otherwise make conduct unlawful.

3. The exception had to be interpreted compatibly with Convention rights. Its purpose was to permit differential treatment which would be justified under Article 14. The relevant inquiry was whether the treatment pursued a legitimate aim and bore a reasonable relationship of proportionality to that aim. Sexual-orientation discrimination required particularly convincing and weighty reasons, and the margin of appreciation was narrow.

4. The public-benefit requirement for charitable status, together with the Charity Commission’s regulatory powers under Regulation 18(2), generally provided safeguards against unjustified discrimination. The Commission had to consider whether the proposed objects would remain charitable and whether approving them would be expedient in the interests of the charity, applying Convention-compliant principles.

5. The evidence disclosed a prima facie case that continuing Catholic Care’s service for hard-to-place children might pursue a legitimate aim by proportionate means. The issue involved factual and evaluative questions that had not yet been determined. It was therefore inappropriate for the High Court to decide justification de novo on a second appeal limited to points of law.

6. The question whether Catholic Care should be permitted to adopt the Proposed Objects was remitted to the Charity Commission for determination in accordance with the judgment, with expedition.

1. Charity Commission for England and Wales: refused consent on 18 November 2008 under section 64 of the Charities Act 1993.
2. Charity Tribunal: issued a preliminary ruling on 13 March 2009 and a final ruling on 1 June 2009. It dismissed Catholic Care’s appeal.
3. High Court (Chancery Division): allowed the appeal on the construction of Regulation 18 and remitted the question of consent to the Charity Commission.