St Margaret’s Children and Family Care Society, sexual orientation and discrimination: update

In January we reported the conclusion of the Office of the Scottish Charity Regulator (OSCR) that St Margaret’s Children and Family Care Society, a Glasgow-based Roman Catholic adoption agency, was failing the charity test in s 7 of the Charities and Trustee Investment (Scotland) Act 2005. The reason for OSCR’s decision was that the charity gave preference to couples who had been married for two years or more and, in effect, discriminated against the unmarried and same-sex couples. OSCR told the charity that it would lose its charitable status unless it amended its policies and gave it until 22 April to comply.

Third Sector now reports that the Scottish Government wants St Margaret’s, which completed 22 adoption placements in 2011/12, to continue providing its “valuable services to vulnerable children and young people” and that officials were meeting representatives of the charity to discuss the situation. Said a spokesman for the Government:

“The Scottish Government is committed to equality and protection from discrimination. It is also our view that there should be room for St Margaret’s to continue its important work. It is in no-one’s interests to close an organisation that is providing valuable services to vulnerable children and young people and we want to work with St Margaret’s to find a solution”.

According to the report, St Margaret’s is still considering its position.

Comment: The Scottish Government appears to be taking a rather different line from that adopted by the UK Government during the long-running Catholic Care litigation – which was simply to keep well away from the issue. The two approaches demonstrate that, under devolution, different governments may have different perceptions of how to proceed, even in similar circumstances. More fundamentally, however, it seems to us that the two approaches highlight a basic issue not only in charity law but in public law generally: the relationship between politicians and regulators.

In short: once a statutory scheme of independent regulation of a particular sector is put in place what, if anything, is the residual role of government? Should the regulator be left to get on with it or may the executive and/or legislature properly give directions as to how regulation should be carried out? Or should ultimate control of regulation be solely a matter for the courts through the mechanism of judicial review?

In the specific case of St Margaret’s there is also an obvious clash of policy objectives between the need to uphold equal treatment for everyone, irrespective of gender, sexual orientation and marital status, and the need to find caring, committed adoptive parents for children awaiting placement – and readers may remember that one of the points pleaded in favour of Catholic Care was that it was particularly successful at finding placements for “hard to adopt” children.

One’s instinct is that statutory regulation should be entirely insulated from political interference, with final oversight being left to the courts rather than to governments. The danger of allowing exceptions in special circumstances because of political pressure is that once one starts down that road, exactly where does one stop? But where to draw the line between legitimate political interest and illegitimate political arm-twisting can be an exceedingly difficult judgment to make. Which set of interests are ultimately the more important in the St Margaret’s case: those of unmarried or same-sex potential adopters or those of the children awaiting adoption? And are the two necessarily in opposition anyway? In the Catholic Care litigation the court concluded that they were not.