The decision of the Scottish Charity Appeals Panel to uphold St Margaret’s adoption agency in Glasgow’s appeal against the Office of the Scottish Charity Regulator (OSCR) this week was a significant moment in the story of Scottish charity law.
Nearly ten years after it was established, this was the first time the panel, made up of solicitors and what appears to be a fairly random selection of public sector worthies, has ruled against the regulator. It is one of only a handful of times the panel has actually met.
The outcome of the process is interesting for a variety of reasons, not least because it would seem to uphold a level of discrimination against same-sex couples in the very week the Scottish Parliament has introduced groundbreaking laws to eliminate it.
However, it wasn’t just the principle of OSCR’s ruling (that St Margaret’s discriminated against same-sex couples by refusing to place children with couples that haven’t been married for two years), which the appeal panel objected to. The regulator received a ticking off for allowing the same group of people, its board, to both make the initial decision and review it. On this front the panel has made a clear recommendation to OSCR to review its procedures – how the tables have turned!
This will ensure that Scotland continues to have a charity law process that is fit for purpose
The ruling itself also comes into question, with the panel suggesting that upholding a complaint which did not include an actual example of discrimination – no same-sex couple had complained – was a disproportionate regulatory response given it would lead to the closure of a charity that did a lot of good work in the community. From a lay point of view, this feels like an odd response to the Equalities Act – it would appear to suggest that if there is good coming out of discrimination against same-sex couples then it’s ok.
The charity regulator could now appeal this decision in the courts, but it seems more likely that it will let it lie. There’s a danger that it is seen as a dispute between the Catholic Church and the liberal left or that it becomes the focus of the ongoing battle that has arisen between the church and gay rights groups in light of the same-sex marriage bill.
In general, it can only be seen as a positive thing that the charity regulator, with its power to make rulings over the rest of us, can be challenged. This will in the long-run ensure that Scotland continues to have a charity law process that is fit for purpose and fair for all.
It will also be interesting to see how St Margaret’s responds when same-sex married couples start knocking on its door in two years time.
