Court of Appeal rules on the legality of Christian requirement by fostering agency

7 October 2021 by Natasha Isaac

R (Cornerstone) v Ofsted  [2021] EWCA Civ 1390

In this claim for judicial review, the issue was whether it was lawful for the claimant independent fostering agency (Cornerstone) only to accept heterosexual evangelical Christians as potential carers under the Equality Act 2010 (EA 2010) and the European Convention on Human Rights (the Convention).

Ofsted wrote a draft report in which they considered this policy to be unlawful when reviewed in the context of the EA 2010 and the Human Rights Act 1998 (HRA 1998) and in a report issued in draft on 12 June 2019 Ofsted assessed the effectiveness of Cornerstone’s leaders and managers as ‘Inadequate’.

The High Court dismissed Cornerstone’s claim, including holding that whilst its policy was not unlawfully discriminatory on the grounds of religious belief, it was unlawfully discriminatory on the grounds of sexual orientation.

The Court of Appeal dismissed Cornerstone’s appeal.

Background law and facts

Cornerstone are a small Independent Fostering Agency (IFA) founded in 1999 based in the North East of England, which at the time of Ofsted’s inspection in 2019 had 14 approved fostering households and cared for 18 children. They claim to provide high quality adoption and fostering services according to Christian principles for children who are hard to place.

The wording of the policy, which potential carers were required to sign up to, under scrutiny appears at paragraph 10 of their Code of Practice under which

There is an expectation on all Cornerstone carers to: […] Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex. [21]

Cornerstone argued that its policy in its entirety was essential to the continuation of its work, both because of the funding it receives and because of the shared faith and values of its carers which led to a community of fellowship and worship.

The Charity Commission Review in 2010

Notably the Charity Commission had also reviewed Cornerstone’s work in 2010 after the judgment in Catholic Care ((Diocese of Leeds) v Charity Commission for England and Wales [2010] EWHC 520 (Ch)) noting that the implications from that judgment were that an organisation that discriminates in a way that is not justified is not likely to be established for the public benefit and as such will not be a charity.

Cornerstone’s response to the Charity Commission was, amongst other things, that it did not discriminate on the grounds of sexual orientation but sexual behaviour. The Charity Commission accepted this but without reason. The Charity Commission also accepted that Cornerstone’s provision of services fell within paragraph 2 of Schedule 23 to the EA 2010 which permits the restriction of services because of the purpose of the organisation and/or to avoid causing offence on the grounds of religion or belief.

The Court of Appeal held that the distinction between sexual behaviour and sexual orientation was a nullity because sexual behaviour was a manifestation of sexual orientation. Additionally, the Court found that, as per the judgment in the High Court, Parliament had allowed discrimination on religious grounds except in respect of acts done on behalf of a public authority pursuant to contract which are discriminatory on the grounds of sexual orientation.

Arguments before the Court of Appeal

Cornerstone, appealed on 12 grounds, five of which were advanced before the Court of Appeal.

Ground 1 – Ofsted’s Powers vs other overlapping organisations
That the judge erred in concluding that Ofsted had properly exercised its power to require Cornerstone to disapply or modify its recruitment policy, notwithstanding the finding by the Charity Commission that Cornerstone did not contravene the EA 2010 when acting in pursuance of its charitable instrument.

Cornerstone argued that this adopted an unduly narrow approach to the Charity Commission where S193(8) EA 2010 confers on the Commission a special power not to enforce non-discrimination provisions where the result of enforcement would be disproportionate.

Ground 3 – Direct Discrimination
That the judge erred in concluding that Cornerstone’s recruitment of foster carers in accordance with its policy constituted direct discrimination because of sexual orientation (S13(1) EA 2010).

Cornerstone argued that its constituent documents set out what it means to be an evangelical Christian, with requirements which apply to all, regardless of sexual orientation, and that someone in a same-sex marriage would not be in a Christian marriage as Cornerstone understands it. Cornerstone also argued that any discrimination in this case is entirely abstract as no instance of discrimination against any person has been identified or relied upon.

Ground 4 – Indirect Discrimination
That the judge erred in concluding that Cornerstone’s recruitment of foster carers in accordance with its policy was not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination (S19(2)(d) EA 2010).

Ground 9 – Hypothetical victims
That the judge erred in holding that Cornerstone in recruiting foster carers in accordance with its policy acts incompatibly with the Convention right under Article 14 (the prohibition on discrimination) read with Article 8 (respect for private and family life) of hypothetical gay or lesbian evangelical Christians who might want to become Cornerstone carers.

Cornerstone noted that the Convention as applied in the European Court of Human Rights (ECtHR) did not decide cases in the abstract.

Ground 10 – Oftsed’s Powers to require Cornerstone to change their policy
That the judge erred in holding that Ofsted’s requirement that Cornerstone should change its recruitment policy was compatible with respect for Convention rights under Articles 9-11 (freedom of religion, expression and assembly) and/or 14 (prohibition on discrimination) which Cornerstone could pray in aid as a religious organisation.

Ofsted’s Response

The judgment is limited in the detail of Ofsted’s response, the points which follow are particularly notable.

Ground 1 – Ofsted’s Powers vs other overlapping organisations
Ofsted’s response to this ground is essentially distilled in their argument that “overlapping jurisdiction between regulators is neither surprising nor problematic: for example, Ofsted is entitled to comment on unsafe premises at a children’s home, even though that would also fall within the jurisdiction of the Health and Safety Executive”.
Further, not all IFAs are charities, if Cornerstone is correct that Ofsted are not entitled to consider whether an IFA is complying with the EA 2010 that would apply to all IFAs.

Finally, Oftsed also argued that Cornerstone’s reliance on R (Z) v Hackney was misconceived as there were too many factual and legal differences, see [49] for detail.

Ground 3 – Direct Discrimination
Ofsted’s response to Cornerstone’s arguments is that there is “an exact correspondence” [66] between Cornerstone’s Code of Practice and the protected characteristic of sexual orientation. Ofsted also argued that as a regulator it did not need to identify an actual victim to conclude a policy was discriminatory.

The Court’s Decision

Ground 1 – Ofsted’s Powers vs other overlapping organisations
The Court rejected Ground 1 on the same basis as the judge at first instance. First, there is no intention within the legislation to exclude other regulators, and the pervasive nature of equalities legislation is manifest in the public sector equality duty at s149 EA 2010. Second, the different stance between the Charity Commission and Ofsted on “sexual behaviour” vs “sexual orientation” is “undoubtedly disappointing for Cornerstone” but they do not amount to regulatory harassment. Lastly, R (Z) v Hackney does not support Cornerstone’s case, and the fact that a charity has limited resources does not translate into a conclusion that they can only have one regulator.

Ground 3 – Direct Discrimination
The Court of Appeal did not accept Cornerstone’s arguments on this ground, finding that this was a case of direct discrimination [67-68] for five reasons:
1) The fact that Cornerstone’s rule on homosexual behaviour forms part of a broader belief system does not alter the fact that this aspect of Cornerstone’s policy expressly excludes people of a particular sexual orientation. It cannot be argued that it is not discriminatory because it also distinguishes between applicants on a wide range of other grounds .
2) The distinction between sexual behaviour and orientation was false.
3) Same-sex couples would be automatically rejected by Cornerstone which constituted a clear difference in treatment. The comparison proposed by Cornerstone between Christian married couples and everyone else was impermissibly discriminatory.
4) Preddy v Bull could not be distinguished from this case because the hotel-owners were not a religious organisation.
5) The question of whether a policy is objectively discriminatory does not depend on identifying a specific instance of discrimination arising, see further [77-80].

Ground 4 – Indirect Discrimination
The Court noted that direct and indirect discrimination were mutually exclusive and reviewed proportionality as a separate point.

Ground 9 – Hypothetical Victims
The first instance judge noted that Oftsed is not seeking to bring proceedings on behalf of a victim under s7 HRA 1998. Ofsted’s conclusions about Cornerstone’s policies were made pursuant to its inspection and reporting powers. Therefore, the process of regulation is different from the bringing of a claim of discrimination.

Peter Jackson LJ noted, however, that the existence or non-existence of potential victims may be relevant to justification, a point to which he returns at [108-123].

Ground 10

The judge considered the following four questions raised by this ground:
1) Are Cornerstone’s rights under Article 9 engaged because its recruitment policy is a manifestation of religion?
Decision – the recruitment policy does fall within the protection of Article 9 of the Convention
2) If so, did Ofsted’s requirements materially interfere with Cornerstone’s right to manifest its beliefs?
Decision – the judge at first instance was wrong to find that there had been no material or significant interference with Cornerstone’s right to manifest its beliefs. Further, it was wrong to confine the inquiry to the things that Cornerstone could still do.
3) Further, were Cornerstone’s rights in fact breached by the production of the draft Report?
Decision – Court of Appeal found that the proposal of publication of the report could amount to an unlawful act requiring the Court to decide whether or not to grant a declaration.
4) If Cornerstone’s rights were breached, did Ofsted’s actions pursue a legitimate aim in a proportionate manner?
Proportionality is addressed in detail at the final stages of the judgment, where Peter Jackson LJ discusses whether the decision in Catholic Care is relevant to this case (it is), and the evidence produced by Cornerstone itself.

Peter Jackson LJ applies the test in Bank Mellat v HM Treasury (No 2) [2014] AC 700 :
5) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
6) whether the measure is rationally connected to the objective;
7) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
8) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, the former outweighs the latter.
In short, it is clear that Cornerstone did not prove a need which could only be fulfilled in a discriminatory manner, and it was “proportionate for Ofsted to seek to ensure that the services provided in the public sphere are conducted in a non-discriminatory way” [123].

Comment

The Court noted that it was of “particular significance that Parliament has, in relation to religious organisations that offer a service to the public, given a clear indication that discrimination on the basis of sexual orientation is permissible. It seems that this continues to leave open the door to discriminatory practice if Cornerstone were to provide its fostering and adoption services only to evangelical Christian children, but that is a blog post for another day.

There are some truly poignant sentences in this judgment, and although it is 47 pages long it is worth reading for such quotations as

Enhanced protection on the ground of sexual orientation exists to counteract historic injustice towards homosexuals, the causes of which include religious beliefs [129].