Summary

The exception from the prohibition of differential treatment on the grounds of sexual orientation under the Equality Act (Sexual Orientation) Regulations 2007 reg.18 applied potentially to all types of benefit provided by a charity to persons of a particular sexual orientation in pursuance of a charitable instrument, whether or not those persons were the supposed ultimate beneficial class of that charity.

Facts

The appellant (C) appealed against the Charity Tribunal's refusal to permit it to amend the objects clause in its memorandum of association. C was a charitable company limited by guarantee that provided adoption agency services, and carried out its activities in accordance with the tenets of the Roman Catholic Church. C did not provide its adoption services to same-sex couples, contravening the Equality Act (Sexual Orientation) Regulations 2007 which made it unlawful to discriminate on grounds of sexual orientation unless a relevant exception applied. To bring its restriction within the exception provided in reg.18, C applied to the respondent commission for consent to amend its objects clause to limit provision of adoption services to heterosexuals only. Refusing the request, the commission held that the adoption of the proposed objects would not bring C within reg.18. It interpreted reg.18(1) as only applying to benefits of a charitable nature provided to the charity's beneficiaries so that, as the intended beneficiaries of C's adoption services were children in need of adoption rather than prospective adoptive parents, it did not permit C to refuse provision of its adoption services to same-sex prospective parents. The tribunal, in determining whether it would be lawful for C to decline to provide adoption services to a person on grounds of sexual orientation if it adopted the proposed objects, concluded that no useful purpose would be served by permitting the adoption of the objects. It held that reg.18 described only charitable activity that was only undertaken by charities, was permitted by the charity's own charitable instrument and was not prohibited or dealt with by other Regulations. C submitted that the commission had wrongly restricted its interpretation of "benefits" and that the tribunal wrongly concluded that reg.18 could only apply to an activity of a purely private kind not prohibited or dealt with specifically by another Regulation. It further argued that the adoption of its proposed objects was justified under the European Convention on Human Rights 1950 art.14.

Held

(1) The purpose of reg.18 was to afford to charities an exception from the prohibition of differential treatment on grounds of sexual orientation, wherever the public purpose being achieved by the charity constituted an art.14 justification for that differential treatment. (2) The interpretations of reg.18 by both the commission and the tribunal were incorrect. With regard to the commission's interpretation, reg.18 applied potentially to all types of benefit provided to persons of a particular sexual orientation in pursuance of a charitable instrument, whether or not they were the supposed ultimate beneficial class of that charity. Charities did not, strictly, exist to serve a beneficial class, but they served publicly beneficial purposes. Nonetheless, even if certain familiar types of charity could be described as serving a beneficial class, it was not uncommon for them to achieve that purpose by conferring benefits on persons outside that class, White's Will Trusts, Re (1951) 1 All ER 528 Ch D considered. There was no logical or rational reason why reg.18 should provide a means for enabling justified differential treatment by reference to the sexual orientation of the ultimate beneficial class, while excluding any justified differential treatment of their carers by reference to their sexual orientation, where the charity's purpose was achieved precisely by affording benefits to those carers. Concerning the tribunal's interpretation, it was incorrect on three grounds. Firstly and most seriously, the limiting of reg.18 to activity that was not prohibited by any other Regulation went against the opening phrase in reg.18(1) that "nothing in these Regulations shall make it unlawful...". Secondly, the tribunal's view that reg.18 dealt with a wholly different sphere of activity from other Regulations was untenable; reg.18 could overlap with reg.13 and reg.14. Thirdly, the notion that reg.18 was confined to purely private activity lay uneasily with the essential requirement of a charity, namely that it should confer a public benefit. Regulation 18 was to be confined by interpretation to avoid it transgressing the real restrictions imposed by the requirement to construe it compatibly with Convention rights. That was to be achieved by considering that it applied only to charities, which by their nature yielded a net public benefit, its practical effect was controlled by the commission and an interpretation compatible with a Convention right required there to be a need for the proportionate pursuit of a legitimate aim. The commission's regulatory powers could ensure that reg.18 conferred no exemption in relation to unjustified discrimination. Nonetheless, such a justification was implicit in the interpretation of reg.18. (3) Neither the tribunal nor the commission had considered the issue of justification under art.14, and a decision on that question by the instant court would involve the determination of partly factual questions from new. The commission was the body responsible for considering the issue of justification, and so whether C should be permitted to adopt the proposed objects was to be remitted to the commission.

Judgment accordingly