Glasgow has suddenly found itself in the front line of the defence of religious freedom in Britain. Two Glasgow midwives are being taken to the Supreme Court over the issue of conscientious objection to abortion and the St Margaret’s Children and Family Care Society is being threatened with closure over its desire to provide every adoptive child with a mother and a father. Of the two cases, that of St Margaret’s is the most worrying and potentially wide-ranging since it calls into question the very existence of faith-based organisations operating in accordance with their conscience and beliefs.
As is well known, the 10 Catholic adoption agencies in England and Wales suffered a crisis when the Sexual Orientation Regulations became law in 2007 because the regulations required them to be willing to provide adoption services to same-sex couples. Ultimately the regulations (now incorporated in the Equality Act 2010) led to the English and Welsh agencies either closing or severing their links with the Church. In Scotland, the St Andrew’s agency in Edinburgh has also severed its links and only the St Margaret’s agency in Glasgow has continued to operate in accordance with Catholic teaching, giving preference to heterosexual married couples. It is for this reason that it is being threatened with closure by the Office of the Scottish Charity Regulator (OSCR).
St Margaret’s links with the Catholic Church are not merely nominal. In its 2011 annual report it had an income of £486,164, of which £51,000 comes as a grant from the Archdiocese of Glasgow and Diocese of Paisley with a further £51,937 from “crib donations” arising from collections in parish churches. The Church therefore makes a substantial financial contribution to ensure that St Margaret’s is able to find parents for children. The agency has a particular skill in finding parents for “difficult to adopt” children – those who are older or are physically or mentally handicapped – and it is recognised as providing an outstandingly successful service.
The problem that St Margaret’s is having arises from its policy that prospective adoptive parents should be a husband and wife married for at least two years. That policy has been described by OSCR as discriminatory against same-sex couples and St Margaret’s has been threatened with removal from the Charity Register which would close it down. This decision does not arise because of any complaint by any same-sex couple seeking to be parents or because of any failure by St Margaret’s to find appropriate parents for a child. It arises solely because of a complaint from the National Secular Society.
The decision by OSCR is being challenged by St Margaret’s, which is appealing to the Scottish Charity Appeals Panel in a case which could go through the Scottish courts and end up in the Supreme Court. Besides the legal costs involved, the case is also absorbing the time and attention of St Margaret’s management and board, distracting them from their core role of caring for children.
The basis of St Margaret’s defence is Section 193 of the Equality Act 2010, which exempts charities from non-discrimination law if they are acting in accordance with the provisions of their constitution. This exemption for charities has existed since the very first Race Relations Act in 1968 and, for example, would allow a domestic violence charity to offer a refuge only to women or allow a HIV charity to offer medical services only to homosexuals.
The St Margaret’s constitution states that it is established “to assess the suitability of applicants as adoptive parents all in accordance with the teachings of the Catholic Church”, and it is because of this that St Margaret’s wanted prospective parents to be married in accordance with Church teachings. The OSCR, however, has decided that this means that that St Margaret’s is not providing “public benefit” and therefore must be removed from the Charities Register.
The reasoning by the OSCR is a classic example of a circular argument. Since charities are permitted by Section 193 to discriminate, for the OSCR to say that that the act of discrimination makes an organisation unfit to be a charity renders Section 193 meaningless.
What the OSCR has completely failed to respect is the religious nature of St Margaret’s and the fact that its policies do not just apply to gay people but also to unmarried heterosexual couples. Also, the policy is based on what is the first choice of prospective parent. It does not mean that in no circumstances whatsoever would St Margaret’s consider a single person or a same-sex couple, but it puts the first priority on finding a married man and woman as the best choice for the child. So far St Margaret’s has always managed to find appropriate parents for the children referred to it, which is a fact that the OSCR has chosen to ignore.
The consequences of the actions by the OSCR are profound, as Brian McGuigan, a St Margaret’s Trustee, emphasises when he said: “Our country is on the brink of declaring illegal the belief that every child where possible deserves a mother and father.”
The implications are also profound for all other religious based charities, since none of them will be able to guarantee that their policies and principles are in accordance with their religious principles. The decision by the OSCR also casts doubt on the assurances by both the Scottish and British governments that churches will not be obliged to perform same-sex marriages. Based on what the OSCR has done any church that refused to perform same-sex marriages could find its charitable status revoked or its trustees removed and replaced. The OSCR decision has implications not just in Scotland but also for charities in England and Wales, since the Equality Act applies south of the border.
St Margaret’s is involved in a very important struggle – not just for Catholics, but for everyone in Britain who believes in freedom. The freedom to associate, and the freedom to form independent organisations and charities are fundamental if democracy and freedom are to have any real meaning.
Neil Addison is a barrister and author of Religious Discrimination and Hatred Law. Donations to St Margaret’s can be sent via Stmargaretsadoption.org.uk
This article first appeared in the print edition of The Catholic Herald dated 21/6/13