The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty finding a home, following the principles of the Roman Catholic Church, and it wanted to restrict its services to married couples, excluding same-sex, unmarried and civil partner couples, taking advantage of the exception in regulation 18 of the 2007 Regulations, by expressly restricting those to whom it might provide a service. The Charity Tribunal had restricted its interpretation of ‘benefits’ in the Regulation to to those derived from a ‘pure charitable activity’. The Equality and Human Rights Commission (EHRC) argued that the change would deprive the charity of a claim to charity status.
Held: The appeal succeeded, and the case was remitted to the Commission for reconsideration in accordance with the principles identified. The 2007 Regulations made provision to protect the Human Rights to freedom of religion, and that must be respected in its interpretation.
Whereas an ordinary trust is valid only if it exists for the benefit of a defined class of beneficiaries, a charitable trust is, by definition, a purpose trust. However ‘although general charity law . . is the primary source for the understanding of the meaning of public benefit, it is no longer to be presumed that any particular type of purpose is for the public benefit. Section 3 [1996 Act] . . contemplates that purposes commonly regarded as charitable, such as the advancement of religion or education, the relief of sickness or poverty, or the care of children in need, may not be for the public benefit, for example if they are sought to be achieved in a particular manner.’ An organisation proposing a purpose for the public benefit will only qualify as a charity if, taking into account any dis-benefit arising from its modus operandi, its activities nonetheless yield a net public benefit.
‘[T]he purpose behind all the relevant exceptions in the [2007] Regulations . . is to exclude from the general prohibition types of differential treatment on grounds of sexual orientation which would, in the view of Parliament (applying for that purpose an appropriate margin of appreciation) be justified in the sense which I have described, so as to fall short of discrimination contrary to Article 14.’
The purpose of Regulation 18 is to afford to charities an exception from the prohibition of differential treatment on grounds of sexual orientation, wherever the public purpose being (or to be) achieved by the charity in question constitutes an Article 14 justification for that differential treatment.
Briggs J
[2010] EWHC 520 (Ch), Times 13-Apr-2010, [2010] PTSR 1074
Bailii
Charities Act 1993 64, Equality Act 2006 81, Equality Act (Sexual Orientation) Regulations 2007 18, European Convention on Human Rights 13, Charities Act 2006 1(1)(a) 3, Sex Discrimination Act 1975 43(3)
England and Wales
Citing:
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – C v United Kingdom ECHR 15-Dec-1983
(Commission) ‘Article 9 primarily protects the sphere of personal beliefs and religious creeds, ie, the area which is sometimes called the forum of the internal. In addition, it protects acts which are intimately linked with these attitudes, such as . .
Cited – Kozak v Poland ECHR 2-Mar-2010
In relation to the justification of differential treatment on grounds of sexual orientation, the State’s margin of appreciation is narrow, and that the principle of proportionality requires that the measure chosen to realise the legitimate aim must . .
Cited – Ladele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
Cited – EB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Karlheinz Schmidt v Germany ECHR 18-Jul-1994
Article 14 of the Convention operates not by way of the conferral of a freestanding right not to be discriminated against, but rather by way of complementing the other substantive provisions of the Convention and the Protocols. It has no independent . .
Lists of cited by and citing cases may be incomplete.
Adoption, Discrimination, Charity, Human Rights
Updated: 31 October 2021; Ref: scu.403332