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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cornerstone (North East) Adoption and Fostering Services Ltd, R. (On The Application Of) v HM Chief Inspector of Education, Children's Services and Skills (OFSTED)  EWCA Civ 1390 (24 September 2021)
Cite as:  PTSR 595,  2 FLR 54,  IRLR 993,  2 All ER 516,  EWCA Civ 1390
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ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)
Mr Justice Julian Knowles
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ASPLIN
LADY JUSTICE NICOLA DAVIES
| THE QUEEN (ON THE APPLICATION OF
CORNERSTONE (NORTH EAST) ADOPTION AND FOSTERING SERVICES LTD)
|HER MAJESTY'S CHIEF INSPECTOR OF
EDUCATION, CHILDREN'S SERVICES AND SKILLS (OFSTED)
Sarah Hannett QC (instructed by Ofsted Legal Services) for the Respondent/Defendant
Hearing dates: 29-30 June 2021
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Friday, 24 September 2021.
Lord Justice Peter Jackson:
(1) Cornerstone's recruitment policy is not unlawfully discriminatory under either the EA 2010 or the HRA 1998 on the grounds of religious belief because the exception in paragraph 2 of Schedule 23 EA 2010 applies.
(2) Cornerstone's policy of requiring applicants to refrain from homosexual behaviour unlawfully discriminates against gay men and lesbians under the EA 2010, and in requiring applicants to be heterosexual it unlawfully discriminates against gay men and lesbians under the HRA 1998.
(3) Ofsted's report did not violate Cornerstone's rights under Articles 9-11 and 14 of the European Convention on Human Rights ('the Convention').
(4) Ofsted's report was not unlawful as being in breach of its guidance on the inspection of IFAs, entitled 'Social Care Common Inspection Framework: Independent Fostering Agencies' (February 2017) ('SCCIF').
The Judge therefore dismissed Cornerstone's claim and he ordered it to pay 75% of Ofsted's costs. On 11 August 2020, Ofsted published a version of the Report that had been amended to reflect the aspects of Cornerstone's claim that had been upheld.
Ground 1: the judge erred in concluding that Ofsted properly had – and in all the circumstances properly exercised its – power and jurisdiction to require Cornerstone to disapply or modify its recruitment policy for foster carers as contained in its charitable instrument, notwithstanding the finding by the Charity Commission – exercising the specific mandate afforded to it by Parliament under Section 193 EA 2010 – that when acting in pursuance of this charitable instrument, Cornerstone did not contravene the EA 2010.
Ground 3: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy constituted direct discrimination because of sexual orientation, within the meaning of s. 13(1) EA 2010.
Ground 4: the judge erred in concluding that Cornerstone's recruitment, selection and appointment of Cornerstone foster carers in accordance with its policy is not a proportionate means of achieving a legitimate aim and is therefore unlawful indirect discrimination, within the meaning of s. 19(2)(d) EA 2010, on grounds of sexual orientation.
Ground 9: the judge erred in holding that when it recruits, selects and appoints Cornerstone foster carers in accordance with its policy, Cornerstone acts incompatibly with the Convention right under Art. 14 (read with Art. 8) of hypothetical gay or lesbian evangelical Christians who might wish to become Cornerstone foster carers; and
Ground 10: the judge erred in holding that Ofsted's requirement that Cornerstone disapply or modify its recruitment policy for foster carers as contained in its charitable instrument was compatible with respect for the Convention rights under Arts. 9-11 and/or 14 which Cornerstone could pray in aid as a religious organisation.
2. Cornerstone acts as a "service-provider" concerned with the provision of a service to the public or a section of the public, for the purposes of Section 29(1) EA 2010.
5. The recruitment of foster carers is done on behalf of a public authority, within the meaning of paragraph 2(10)(a) of Schedule 23 EA 2010.
6. The recruitment of foster carers is done under the terms of a contract between Cornerstone and a public authority, within the meaning of paragraph 2(10)(b) of Schedule 23 EA 2010.
7. Cornerstone is providing a service or otherwise acting in the exercise of a function that is a function of a public nature for the purposes of the HRA 1998 and so also for the purposes of Section 29(6) EA 2010 (by virtue of Section 31(4)).
8. When it recruits foster carers Cornerstone acts in breach of its obligations under Section 6 HRA 1998 even in circumstances where there is no alleged "victim" within the meaning of Section 7 HRA 1998.
11. Ofsted did not act unlawfully in not following the SCCIF in the circumstances of this case.
12. Ofsted's finding that Cornerstone had been guilty of unlawful discrimination on grounds of religion or belief was severable from Ofsted's decision to downgrade its previous assessment of Cornerstone's services as an IFA.
"259. I do not accept Cornerstone's argument that the act of recruiting a potential foster carer is akin to an employment recruitment decision by a private body, because it is not. Foster carers do not work under contract (cf National Union of Foster Carers v Certification Officer  IRLR 860) and their recruitment and training is subject to statutory regulation (eg in Part 5 of the Fostering Regulations) in the way that the recruitment of an employee is not."
Cornerstone made the same arguments to King LJ, who rejected them for the reasons given by the Judge.
"(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In [paragraph (1)]… "appeal" includes an application for permission to appeal."
The effect of this rule has been considered a number of times by this court, most recently in Municipio De Mariana & Ors v BHP Group PLC  EWCA Civ 1156 (27 July 2021) at [57-64], following R (Goring-on-Thames Parish Council) v. South Oxfordshire District Council  EWCA Civ 860,  1 WLR 5161 at [10-15]. In summary, a decision will only be reopened in exceptional circumstances where there is a powerful probability that a significant injustice has occurred and where the decision would have been different if the integrity of the earlier process had not been critically undermined.
"…to provide a high quality adoption and fostering child care service according to Christian principles…"
It believes that by encouraging members of that community to be foster carers and by supporting them (practically, emotionally and spiritually) in caring for a child, Cornerstone and its recruits manifest their love of God and their Christian faith. The basis for its recruitment policy is set out in its Memorandum and Articles of Association at clause 5:
"5. The policy of the Charity shall be to restrict employment by the Charity and acceptance of any application to foster or adopt children through the charity to evangelical Christians being those:
(a) who shall have first signed the Statement of Beliefs set out in the Schedule hereto and
(b) whose personal lifestyle conduct and practice is consistent with the practice of the Statement of Beliefs set out in the Schedule hereto and traditional Biblical Christian standards of behaviour as set out by the trustees in their Code of Practice issued from time to time and who shall have first signed the said Code of Practice at the commencement of their employment or in the case of foster carers or adoptive applicants at the time of their initial application."
This is the present form of Clause 5, the provision having been amended in April 2007 to bring the requirements for foster carers into line with those for Cornerstone's staff. That alteration was approved by the Charity Commission and registered with Companies House.
"As Cornerstone is a Christian organization it is expected that all carers conduct themselves in a manner that will give proper expression to faith in Jesus Christ as Lord. This Code of Practice presents a brief summary of biblical teaching regarding Christian lifestyle and morality. The Bible, as the revealed Word of God, shall be the final authority in such matters.
The Trustees will seek to give proper regard to the place of grace and forgiveness within a Christian organisation but they will also give proper regard to their duty to ensure that Cornerstone presents a consistent Christian witness.
There is an expectation on all Cornerstone carers to:
1. Sign a copy of Cornerstone's Statement of Beliefs indicating a personal acceptance of the beliefs stated.
2. Maintain a personal devotional life through regular times of prayer and Bible reading. (Psalm 119:105; Col 4:2)
3. Attend regularly a local church fellowship and be in good standing with that church. (1 Tim 4:13-14; Heb 10:25)
4. Seek to be Christ-like in attitude and action towards all persons regardless of race, social class, religious beliefs or position of influence within the community. (Lev 19:18; Matt 22:39)
5. Be honest in all areas of handling money and finance. Avoid the love of money. (Ex 20:15; Luke 16:13-15; Col 3:5)
6. Be honest in speech and seek to avoid all speech which could be regarded as blasphemous or profane. (Col 4:6; Eph 5:4)
7. Maintain a home and working environment free from harassment, bullying and victimisation. (1 John 4:7)
8. Abstain from involvement in the occult, astrology and witchcraft. (Deut 19:10-12; Acts 19:19; Gal 5:19-20)
9. Maintain a lifestyle that recognises the effects of alcohol on the body and avoids drunkenness and other forms of substance misuse, at all times. (Rom 13:13-14; Eph 5:18)
10. 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. (1 Cor 12:23; 1 Cor 6:12-20; Eph 4:17-24; 1 Thes 4:1-8; Rom 1:26-27; 1 Tim 1:9-11; Gen 1:27; Deut 22:5)
11. Give proper regard to the laws of the land. (Rom 13:1-7)"
The prospective carer then signs this declaration:
"As long as I am a carer for Cornerstone (North East) Adoption and Fostering Service I agree to maintain the Christian ethos of the organisation by accepting the above code of practice."
"The agency's recruitment and selection process for foster carers is not inclusive and it does not comply with the requirements of the Equality Act 2010. The agency only recruits foster carers who are practicing Christian carers in opposite sex marriages. The requirement to be in a heterosexual marriage discriminates against potential carers who have a different sexual orientation contrary to the Equality Act 2010 and contrary to Article 14, read with Article 8, of the European Convention on Human Rights (the ECHR). The requirement to be a practicing Christian discriminates against potential carers on the ground of their religion or belief contrary to article 14, read with article 8, of the ECHR."
This section sets out the actions that the registered person(s) must take to meet the Care Standards Act 2000, the Fostering Services (England) Regulations 2011 and the national minimum standards. The registered person(s) must comply within the given timescales.
An agency must be carried on in accordance with the relevant requirements.
In this section "relevant requirements" means –
the requirements of any other enactment which appear to the registration authority to be relevant.
(Care Standards Act 2000, s 14 (1)(c)(3)(b))
In particular, to comply with the enactment, sections 13, 19 and 29 of the Equality Act 2010 and section 6 of the Human Rights Act 1998 not to discriminate on the grounds of sexual orientation in the recruitment of foster carers and to comply with the enactment, section 6 of the Human Rights Act 1998 not to discriminate on the grounds of religion and belief.
Due date 31 July 2019"
"Overall experiences and progress of children and young people: requires improvement to be good
The agency works with placing authorities and other agencies to provide specialist therapeutic support for children and young people. This agency offers a faith-based support service for its foster carers. Foster carers feel that this is highly beneficial to them and in turn the children that they care for, as they feel that it offers them enhanced support through Christian prayer, for example, and from individuals who share their perspectives and values.
The agency's recruitment policy is discriminatory, in that it excludes prospective carers who do not meet marital status and faith criteria. Although this had not directly impacted on the experience and progress of children and young people in the cases seen, it does not ensure that prospective carers are considered without prejudice and with appropriate emphasis on their capacity to care for children. This is not compliant with the Equality Act 2010 and the Human Rights Act 1998.
The effectiveness of leaders and managers: inadequate
The agency's recruitment and selection process does not comply with the requirements of the Equality Act 2010 or the Human Rights Act 1998. The agency only recruits foster carers who are practising Christian carers in heterosexual marriages. The agency's policy on recruitment discriminates against potential carers of a different sexual orientation or religion or belief."
The Charity Commission
The grounds of appeal: preliminary
a. Cornerstone is providing a service to the public or a section of the public (foster carers and children and young people) under s. 29(1) EA 2010 or exercising a function of a public nature under s. 29(6).
b. Its recruitment of foster carers is done on behalf of a public authority, within the meaning of paragraph 2(10)(a) of Schedule 23 EA 2010.
c. Its recruitment of foster carers is done under the terms of a contract between Cornerstone and a public authority, within the meaning of paragraph 2(10)(b) of Schedule 23 EA 2010.
d. Cornerstone is a "hybrid" public authority for the purposes of s. 6 HRA 1998.
These findings are of importance, because the public character of an organisation is significant for its treatment under both the EA 2010 and the HRA 1998; it determines the availability of statutory exceptions and is also relevant to questions of proportionality and justification.
"29 (1) A person (a 'service-provider') concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation…"
"285. Paragraph 2 of Sch 23 represents Parliament's considered response to the question of whether, and if so how far, religious organisations should be allowed to discriminate on grounds of religion. Parliament did not give these organisations a blanket exemption on anti-discrimination laws, as I found earlier in relation to [2(10)]. Its was a nuanced response, taking into account a range of factors and interests. In other words, in enacting  of Sch 23 in the terms that it did, Parliament was deciding how the balance was to struck between, on the one hand, the freedoms properly to be accorded to religious and faith based organisations, and on the other, the rights of those who might be discriminated against."
Against this background, the Judge correctly noted at  that 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. He considered that this provision in the EA 2010, coming a decade after the HRA 1998, represents Parliament's intention to create a fair and proportionate balance between religious freedom and anti-discrimination. The outcome under both legislative schemes is therefore likely to be consistent.
"To permit someone to discriminate on the ground that he did not believe that persons of homosexual orientation should be treated equally with persons of heterosexual orientation would be to create a class of people who were exempt from the discrimination legislation. We do not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed of heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that."
Ground 1: Ofsted's jurisdiction
"1. Determining whether institutions are or are not charities.
2. Encouraging and facilitating the better administration of charities.
3. Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement in the administration of charities."
"(1) A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if –
(a) the person acts in pursuance of a charitable instrument, and
(b) the provision of the benefits is within subsection (2).
(2) The provision of benefits is within this subsection if it is—
(a) a proportionate means of achieving a legitimate aim, or
(b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic…
(8) A charity regulator does not contravene this Act only by exercising a function in relation to a charity in a manner which the regulator thinks is expedient in the interests of the charity, having regard to the charitable instrument."
The charity regulator is the Charity Commission: s. 194(5)(a).
"(2) If the registration authority is satisfied that -
(a) the requirements of regulations under section 22; and
(b) the requirements of any other enactment which appears to the registration authority to be relevant,
are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it."
Under s. 14, Ofsted may cancel a registration on the ground that the organisation is being carried on otherwise than in accordance with the relevant legislative requirements, which are defined in the same way. The power to inspect arises under s. 31 CSA 2000.
"231. I agree with Ofsted's submissions that ss 13, 14 and 31 CSA 2000 entitle it to examine an IFA's compliance with the EA 2010 and the HRA 1998. These provisions contain Ofsted's inspection and regulatory duties. These differ from the Charity Commission's duties, which are set out in s 15 of the Charities Act 2011. The Commission's duties include the determination of whether or not institutions are charities, and encouraging and administering their better administration. In its Skeleton Argument at , Ofsted accepts that it must take the view of the Charity Commission into account, and that it did so. However, it maintains, rightly in my view, that it is not required to follow the Commission's view. I agree that overlapping jurisdiction between regulators is neither surprising nor problematic. For example, health and safety issues at a children's home fall within the remit of the Health and Safety Executive (or the relevant local authority, depending on the nature of the issue), but Ofsted would also have the power to comment on such issues as part of its inspection duty."
(1) As the Judge said, it was plainly open to it to conclude that the EA 2010 and HRA 1998 are relevant to the functions performed by IFAs, and therefore that it needed to assess for itself whether the IFA meets the requirements of those statutes. Ofsted's inspection and regulatory duties are distinct from those of the Charity Commission. 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.
(2) Not all IFAs are charities, and some are for-profit organisations. If Cornerstone is correct that Ofsted is not entitled to consider whether an IFA is complying with the EA 2010, that must apply equally to charitable and non-charitable IFAs.
(3) Cornerstone's argument is impossible to reconcile with Ofsted's public sector equality duty under s. 149 EA 2010 to give due regard to eliminating discrimination.
(4) The Charity Commission's decision in this case (see paragraph 32 above) was based on an untenable distinction between sexual orientation and sexual behaviour. Its January 2011 letter does not state that the exemption from discrimination on the grounds of sexual orientation applied.
(5) The purpose of s. 193(8) is to ensure that the Charity Commission does not itself breach EA 2010 in exercising its regulatory functions. It does not constrain another regulator from reaching its own conclusion as to a charity's compliance with EA 2010.
(6) There are significant factual and legal differences between this case and R (Z) v Hackney, including:
i) That case concerned a charity whose objective was to support a disadvantaged group (Orthodox Jews), whereas in this case there is no suggestion that the beneficiaries of Cornerstone's policy (married evangelical Christians) face any disadvantage.
ii) Unlike Cornerstone's recruitment policy, the discriminatory practices in that case were not a blanket policy. (This does not seem to be correct: see R (Z) v Hackney at , for example.)
iii) R (Z) v Hackney was concerned with the positive action provisions in s. 158 EA 2010 and s. 193(2)(b), neither of which are engaged here. This case turns on s. 193(2)(a), which, unlike s. 193 (2)(b), requires the discriminatory restriction on the provision of a benefit to be proportionate.
iv) The objective of the charity in R (Z) v Hackney was to make social housing available to Orthodox Jews, and the discrimination at issue was the more favourable treatment of Jewish applicants; thus, there was a direct link between the more favourable treatment and the recipients of the charitable benefits. In contrast, Cornerstone's discrimination is against non-heterosexual applicants, not against non-evangelical Christians: there is no direct relationship between the restriction of the benefit provided by the charity and the group privileged in the charitable instruments (evangelical Christians).
v) In any event, R (Z) v Hackney is not authority for the proposition that once the Charity Commission has determined that discrimination falls within an exemption in EA 2010, it is not open to another regulator in a different regulatory context to reach a different view.
Ground 3: Direct discrimination on grounds of sexual orientation
(1) Does Cornerstone's policy amount to direct discrimination?
(2) If so, is the policy in the case of a charity a proportionate means of achieving a legitimate aim, so that the exception under s. 193(2)(a) EA 2010 applies?
The other potentially relevant exception for a religious organisation under Sch. 23 para. 2 does not apply because of the Judge's findings about the public character of Cornerstone's provision of services: see paragraph 34 above.
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
In the individual case it is therefore necessary to identify the protected characteristic, the comparator, and the reason for the less favourable treatment.
"23 Comparison by reference to circumstances
(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.
(3) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married ... is not a material difference between the circumstances relating to each case.
(4) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is married to, or the civil partner of, a person of the same sex while another is married to, or the civil partner of, a person of the opposite sex is not a material difference between the circumstances relating to each case."
This provision makes clear that the comparison is to be made "by reference to circumstances". It also provides that marriage and civil partnership are not to be treated as a material difference in circumstances. Further, circumstances that are themselves discriminatory are not "circumstances relating to each case" for the purposes of s. 23(1): R (E) v. Governing Body of JFS  2 AC 728 at  and [119-120], following James v. Eastleigh Borough Council  2 AC 751 at 762A-C, which construed equivalent provisions in the Sex Discrimination Act 1975. In James a council provided free swimming to persons over retirement age, then being 60 for women and 65 for men. The council had argued that the relevant comparator was the section of the public comprising persons of statutory pensionable age. The Court of Appeal rejected that argument, holding that it was not permissible to define the section of the public in terms which were themselves discriminatory in terms of gender, and this conclusion, which was not challenged on the further appeal, was described as clearly right by the House of Lords, which was itself concerned with the next inquiry, to which I now turn.
"Whether there has been discrimination on the ground of sex or race depends upon whether sex or race was the criterion applied as the basis for discrimination. The motive for discriminating according to that criterion is not relevant."
This applies equally to discrimination on the basis of sexual orientation.
"179. The next question is whether Cornerstone's recruitment policy is discriminatory on the grounds of sexual orientation. I conclude that it is. Clause 10 of Cornerstone's Code of Practice requires applicants 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 ... homosexual behaviour …"
In my judgement this policy clearly, directly, and unambiguously discriminates against non-heterosexuals. Under Cornerstone's policy, gay men and lesbians are bound to be treated less favourably than heterosexual men and women. That is because no matter how much such a person might wish to become a foster parent, and no matter how wonderful and loving a foster parent he or she might make, Cornerstone will not accept them simply because of their sexual orientation. It will not provide them with its services. It will not train them. It will not approve them. That is to treat gay men and lesbians less favourably than heterosexual men and women because of their sexual orientation, which is a protected characteristic (ss 12 and 13(1) EA 2010). I reject Cornerstone's argument that because its policies refer to 'homosexual behaviour' rather than sexual orientation, it does not discriminate on the latter ground."
(1) The Judge's conclusion on this issue contradicts his conclusion on religious discrimination and renders nugatory its right to limit its carers to those of evangelical Christian faith. (I have addressed this argument above.)
(2) It did not discriminate directly against prospective foster carers "because of" their sexual orientation. Its constituent documents do not refer to gay or lesbian individuals, but only set out what it means to be an evangelical Christian. That is a religious requirement that applies to all, regardless of sexual orientation.
(3) Contrary to the Judge's reasoning, the appropriate comparators are not opposite- and same-sex married evangelical Christian couples. The material difference between the two cases is not the person's sexual orientation, but whether they are in a Christian marriage. Someone in a same-sex marriage would not be in a Christian marriage as Cornerstone understands it.
(4) Preddy is distinguishable, because the hotel owners' policy made no reference as a matter of religious doctrine to a need for those accommodated to be in what evangelical Christians consider a Christian marriage. Instead, its policy was defined with reference to sexual orientation ("heterosexual married couples only"). Further, Preddy did not concern a religious organisation, only religious individuals.
(5) Finally, and unlike in Preddy, any discrimination in this case is entirely abstract: no instance of discriminatory treatment against any person has been identified or relied upon. Consequently, it was not open to the judge to conclude that Cornerstone engaged in direct discrimination.
(1) The fact that the 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. The argument that it does not discriminate directly on the basis of sexual orientation because it also distinguishes between applicants on a wide range of other grounds is the argument that was rejected in Preddy. Nor does the matter turn on the labelling of the criterion. The assertion that this is not a sexual orientation requirement but a religious belief requirement falls foul of Lord Bridge's observation in James at 764C that "it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning."
(2) The Judge was also right to reject the false distinction between sexual behaviour (banned) and sexual orientation (not mentioned).
(3) The overall conclusion does not turn on the precise identity of the comparator, but it was reasonable for the Judge to select a couple, as that is in reality the profile of Cornerstone's carers, and to compare the treatment of same-sex and opposite sex married couples. The former will automatically be rejected, constituting a clear difference in treatment. The comparison proposed by Cornerstone, which appears to be between married Christian couples and everyone else, introduces impermissible discriminatory circumstances in the manner that was rejected by the Court of Appeal in James.
(4) The attempt to distinguish Preddy on the basis that the hotel keepers were not a religious organisation and that their policy was not explicitly religiously-based is unpersuasive. What matters in this context are the actual circumstances, not the identity of the discriminator or the reasons for discrimination.
(5) The question of whether a policy is objectively discriminatory does not depend on identifying any specific instance of discrimination arising from its implementation, though that may be relevant to justification: see below.
Ground 4: Indirect discrimination on grounds of sexual orientation
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
By s. 19(3), religion or belief and sexual orientation are relevant protected characteristics for the purposes of s. 19(1).
Ground 9: Convention discrimination against hypothetical foster carers
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"266. None of these submissions is controversial, but I agree with Ofsted that they miss the point. Ofsted is not seeking to bring proceedings on behalf of a victim (or otherwise) under s 7 HRA 1998. Ofsted's conclusions about Cornerstone's recruitment policy not being compliant with the Convention were made pursuant to its inspection and reporting powers. These empower it to comment on the extent to which an IFA is complying with any law which Ofsted considers relevant to its operation."
Ground 10: Convention discrimination against Cornerstone
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it."
"Since religious communities traditionally exist in the form of organised structures, Art.9 must be interpreted in the light of Art.11 of the Convention, which safeguards associative life against unjusti?ed state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one's religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Art.9 affords. The State's duty of neutrality and impartiality, as de?ned in the Court's case law, is incompatible with any power on the state's part to assess the legitimacy of religious beliefs."
(1) Are Cornerstone's rights under Article 9 engaged because its recruitment policy is a manifestation of religion?
(2) If so, did Ofsted's requirements materially interfere with Cornerstone's right to manifest its beliefs?
(3) Further, were Cornerstone's rights in fact breached by the production of the draft Report?
(4) If Cornerstone's rights were breached, did Ofsted's actions pursue a legitimate aim in a proportionate manner?
"In order to count as a "manifestation" within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question…"
"297. … I do not doubt for a moment that Cornerstone and its staff are motivated to do what they do because they consider the provision of fostering and adoption services falls within Christian observance and fulfils an important Biblical mission, as Ms Birtle explains in her first witness statement. That belief is a religious belief within Article 9(1) and it is sincerely and genuinely held. I also accept that Cornerstone wishes to encourage evangelical Christians to fulfil that observance by becoming foster or adoptive carers. However, I do not regard Cornerstone's requirement that carers must be evangelical Christians as being sufficiently intimately or necessarily linked to those aims in a way that engages Article 9(1). That is all the more so because, as Ms Birtle says at  of her first witness statement, carers must support children of no faith. From this I understand her to mean that children who not evangelical Christians are not sought to be converted."
"303. I turn to the question of sexual orientation. For essentially the same reasons, I have concluded that the non-recruitment of gay and lesbian foster carers is not a manifestation of religious belief for the purposes of Article 9(1). It does not have a sufficiently close connection with Cornerstone's forum internum. The ban on the recruitment of gay and lesbian carers does not directly express the belief concerned and is only remotely connected to a precept of faith. Evangelical Christian gay men and lesbians are full members of that faith community in every sense."
"298. Cornerstone can fulfil – perhaps even more fully fulfil - its Christian mission of providing homes for children and young people who are in need of them by ensuring it has the widest possible pool of potential carers as recruits and by not restricting potential applicants to just one faith. What Ofsted said in its Report did not impinge or interfere with the rights of Cornerstone or its officers, staff or volunteers to manifest their religion in the manner that is protected by Article 9(1).
299. Cornerstone's belief that providing fostering and adoption services is the implementation of an important Biblical injunction was in no way impaired by Ofsted's Report. It can carry out that mission still. In addition, Cornerstone and its staff remain free to believe their Christian beliefs as they see fit; they can worship as they wish at a time and a place and in a manner that they wish; they can conduct their meetings with prayer and worship as they see fit; and they are able to manifest their beliefs publicly as they wish. They remain free to evangelise, proselytise, dispute and discuss (although, as I have said, they do not do so in relation to fostered children). They can continue to supply an evangelical Christian framework and support network for their carers. The requirement that Cornerstone not discriminate against non-evangelical Christians did not impinge on any of its or its human components' acts which are so closely linked to matters such as acts of worship or devotion and which form part of the practice of their religion or belief that they attract the protection of Article 9(1) as a manifestation of that belief.
300. In short, Cornerstone could continue to have a religious ethos whilst not placing a blanket exclusion on those of different or no religion. Cornerstone does not contend that the role of foster carer demands or is enhanced by a particular religion or belief.
301. For these reasons, I do not find that the requirement that potential carers be evangelical Christians was the manifestation of a religious belief for the purposes of Article 9(1)."
I include the final paragraph to make good my conclusion on the first question.
"302. … I accept Ofsted's submission in its post-hearing Note that, on the facts, there has not been any interference with Cornerstone's rights in relation to this aspect of its recruitment policy in terms which engage the Convention. Cornerstone's case is that it was the statutory requirements imposed by the Report which breached its rights under the Convention. But on the facts, Cornerstone has not been required to take any step to meet those requirements. Ofsted points out that, on the contrary: (a) since the report was issued Cornerstone has continued to apply its recruitment policy regarding evangelical Christians; (b) Ofsted has taken no steps to enforce the statutory requirements; (c) the Report has not been published, and to the extent the issues raised by this claim are in the public domain, that is not in consequence of steps taken by Ofsted. Therefore, if my judgment stands, Ofsted will be required to remove the HRA 1998 imposed requirements about the non-recruitment of evangelical Christians and its Report will be issued in an amended form. As such, the pleaded breach of the Convention by Ofsted, namely the requirement Cornerstone take the steps required by the statutory requirements, has not yet occurred and will not ever occur. There will have been no significant impact on its recruitment policy and thus no interference in Convention terms."
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."
The HRA 1998 accordingly extends to proposed acts by a public authority that would be unlawful. There is nothing to say that the proposal to act unlawfully must persist until trial. If a threatened unlawful act is not in fact carried out a remedy in damages may be inappropriate, but I would need more argument to be persuaded that in a case of any importance the court should not at least consider making a declaration that such an act would have been unlawful had it been carried out. Otherwise a public authority can make an unlawful requirement, cause a putative victim to litigate to defend itself, drop the unlawful requirement, and thereby escape any remedy. This cannot be conducive to good administration: on the contrary, a formal acknowledgement of the unlawful basis of the proposed act may be just and appropriate, although the court will of course be able to take account of any countervailing factors when deciding whether or not to grant a declaration in the particular case before it.
(1) Ofsted was entitled to have regard to the EA 2010 and the HRA 1998 when carrying out its inspection.
(2) Cornerstone's recruitment policy does not violate Article 14 of the Convention read with Article 8, insofar as it requires carers to be evangelical Christians.
(3) Cornerstone's policy does constitute direct, alternatively indirect, discrimination on grounds of sexual orientation, and will be unlawful under the EA 2010 and the HRA 1998 in the absence of justification.
(1) Ofsted's requirement that Cornerstone change its recruitment policy in relation to the sexual orientation of carers amounted to a significant interference with Cornerstone's Convention rights.
(2) The conclusion that Ofsted did not breach Cornerstone's Convention rights because the requirement in the draft Report that it change its policy on the religious identity of carers was never published is doubtful.
(1) Direct and indirect discrimination by Cornerstone, via the exception provided for charities under s. 193(2)(a) EA 2010.
(2) Indirect discrimination by Cornerstone, via s. 19(2)(d) EA 2010.
(3) Alleged breach of the Convention rights of putative foster carers by Cornerstone.
(4) Alleged breaches of Cornerstone's Convention rights by Ofsted.
"And in increasing the numbers of evangelical Christian foster carers, C's activities also accord with the broader social aim - against the background of an overall national shortage of foster carers for the amount of placements of children required - of increasing the number of foster carers overall and thereby making more places available for children in need outside of institutional care."
a) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
b) whether the measure is rationally connected to the objective;
c) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
d) 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.
He then summarised the decision in Catholic Care, which I consider below, and gathered from that case that a key question is whether the policy provides benefits to children and young persons or whether, if it were changed, that would produce a disbenefit, for example, by reducing the available number of foster carers. This required consideration of the evidence that had been filed.
"202. I have reached the conclusion that there is insufficient evidence to show that there are sufficiently weighty and convincing reasons why Cornerstone should be permitted to have a policy which is, at a minimum, indirectly discriminatory on the grounds of sexual orientation. Its current policy is not, or not sufficiently, rationally connected to the aims it says the policy pursues. Therefore it fails the second stage of the Bank Mellat, supra, test of proportionality (whether the measure is rationally connected to the objective it seeks to achieve). It also fails the third stage: it could achieve what it wants to achieve by a less restrictive measure, ie, one which is not discriminatory on grounds of sexual orientation.
203. Assessment of proportionality involves striking a balance between various interests, and in doing so I have had full regard, as Cornerstone urged me to, to its rights under the Convention. I will return to these later. However, I fail to see how excluding a category of evangelical Christians (gay men and lesbians) from being foster carers achieves the aim which Cornerstone says it has of increasing the number of evangelical Christian carers. There are gay evangelical Christians, just as there are gay Roman Catholics (treating the two religious descriptions as being different for these purposes). For example, in Catholic Care, supra, Sales J referred at  to evidence filed in that case from the Roman Catholic Caucus of the Lesbian and Gay Christian Movement. It is a reasonable inference that a section of gay and lesbian evangelical Christians would want to foster through an agency founded on an evangelical Christian ethos and which would support them in all of the ways Ms Birtle describes. The number of gay and lesbian evangelical Christians is obviously not known, but what is certain is that Cornerstone's policy means that it does not have available to it the largest and most diverse number of potential applicants. There is no evidence that if Cornerstone accepted gay men or lesbian any, or any significant, number of heterosexual carers would not apply to it, or would not apply to other agencies."
"206. I also fail to see how a discriminatory policy positively impacts on Cornerstone's aim of affording critical support to carers. I do not understand how this aspect of the policy aids or assists in allowing those within the evangelical Christian community to serve by promoting stable and durable placements, unless it be said that gay and lesbian evangelical Christians cannot provide such placements, a position which, as I have said, I flatly reject. Nor do I see how altering the policy so as to be non-discriminatory would adversely impact the ability of evangelical Christianity to manifest the practice of Christian charity and the support of Christian family life - to the benefit of the carers, the children cared for, Cornerstone and society as a whole."
"208. Overall, Cornerstone has not satisfactorily explained why the use of Scriptural doctrine, prayer and Biblical reflection cannot be conducted with evangelical Christians who are gay or lesbian and/or in a same sex marriage… In other words, Cornerstone has failed to show that there is a less intrusive means of meeting the aims identified in its Skeleton Argument, and I accept Ofsted's argument on this aspect of the case."
209. I fully accept that Cornerstone is founded upon what it perceives to be evangelical Christian beliefs, for all of the reasons set out in Ms Birtle's witness statements and its Skeleton Argument. I respect and acknowledge its ethos and the beliefs of its staff and volunteers. But it seems to me to be clear that its policy on 'homosexual behaviour' is driven, first and foremost, by its belief such conduct is simply not compatible with Christianity, and that it is sinful. Indeed, Clause 10 says this in express terms…
210. Cornerstone has failed to show by convincing evidence that its policy benefits children and young people in a way it would not if the policy did not discriminate. But conduct which is discriminatory on the grounds of sexual orientation that is pursued because of religious belief is not thereby justified…"
And he went on to cite the passage from Preddy that appears at paragraph 40 above. He accordingly concluded that Cornerstone had failed to establish that its policy was justified under s. 19(2)(d) EA 2010.
"305. In considering this issue, I have had full regard to Cornerstone's right to religious freedom. For example, Cornerstone relies on Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 46 - ('… the autonomous existence of religious communities is indispensable for pluralism in a democratic society …'). It also cites (inter alia) Islam-Ittihad Association and others v Azerbaijan  ECtHR 5548/05,  ECHR 1220,  ('[P]luralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs …'). I do not doubt the worth and significance of these relatively high level statements of principle, and the others cited by Cornerstone in its Skeleton Argument. But as Lord Neuberger observed in a broadly similar context in the extract from Ladele, supra, that I set out earlier, they cannot be allowed to override Ofsted's desire to promote diversity and inclusion in the recruitment of foster carers by IFAs acting on behalf of local authorities and funded by public money, and its wish to ensure key communities are not discriminated against. In other words, Cornerstone's rights are not absolute but have to be balanced against other factors. I have found that Cornerstone performs duties on behalf of public authorities pursuant to contract, for which it is paid. I have also found that the recruitment of foster carers is a public function. Parliament has specified in [2(10)] of Sch 23 to the EA 2010 that in these circumstances, discrimination on the grounds of sexual orientation is not permissible and is unlawful. In my judgement, it follows that the requirement imposed by Ofsted – mirroring as it does Parliament's specifically expressed will – is proportionate and necessary in a democratic society. The rights and freedoms of religious organisations and how they are to [be] weighed against the societal imperative of ensuring that gay men and lesbians are not discriminated against was a question of social policy for Parliament first and foremost. Parliament considered this very question when it passed the EA 2010 against the backcloth of the HRA 1998 and decided where the line was to be drawn. In my judgement that is conclusive on the question of proportionality."
(1) He overlooked a key point of distinction between this case and Catholic Care: there, the Charity Commission had opposed the charitable objects proposed by the charity, whereas in this case, the Commission had approved Cornerstone's objects. Sales J relied on the margin of appreciation to be afforded to the Commission in that case, which in the present case drives the conclusion that the court should have afforded greater weight to the Commission's approval of Cornerstone's objects.
(2) He was wrong to regard the assertion that there is a national shortage of foster carers as a "core part of Cornerstone's case", when its evidence concerned its specialism in placing more challenging children, for whom it is common ground there is a shortage of carers. Similarly, he misunderstood Cornerstone's case in concluding that its policy would not achieve the aim of increasing the number of evangelical Christian carers.
(3) He misdirected himself in law in positing the existence of gay and lesbian evangelical Christians who would want to foster through an evangelical Christian agency, but are excluded by Cornerstone's policy. In effect, he created a non-existent category of potential victims by assuming the existence of gay evangelical Christians. His reliance on the letter from the Roman Catholic Caucus of the Lesbian and Gay Christian Movement filed in Catholic Care highlights the dangers of entering into theological and ecclesiastical issues. This case concerns evangelical Christians, not Roman Catholics, and the membership criteria are different: the latter is based on institutional and sacramental considerations, whilst the former is premised on commitment to a Christian lifestyle.
(4) The decision is, says Mr O'Neill QC, "unanchored". In order to conduct a proportionality exercise correctly, you need to know the facts. In Preddy and R (Interim Executive Board of Al-Hijrah School) v Ofsted  1 WLR 1471, the cases concerned real people. Reliance is placed on An application by the Northern Ireland Human Rights Commission for Judicial Review  UKSC 27;  1 All ER 173, where the NIHRC was found to lack standing to bring the proceedings.
(5) The Judge failed to have regard to a number of specific factors that supported Cornerstone's case:
(i) The absence of evidence of harm caused to any prospective carer as a result of Cornerstone's application of evangelical Christian precepts (unlike in R (Z) v Hackney, where Lord Sales noted at  that the courts below rightly took into account the small impact of the policy in question on others in their proportionality assessment).
(ii) The fact that fostered children had not been harmed by Cornerstone's fostering policy; on the contrary, there was evidence of the positive outcomes.
(iii) Cornerstone's evidence that its religiously informed mission would be harmed if it was forced to permit carers who contravene Biblical principles about Christian marriage.
(6) He had no regard to Cornerstone's rights under Articles 9-11 and 14 of the Convention in considering whether its policy constituted a proportionate means of achieving a legitimate aim.
(7) In interpreting Parliament's will, the Judge failed in this context to refer to Section 193 EA 2010, and in particular subsection 193(8), which also forms part of the balance struck by Parliament as to how non-discrimination law should apply to a charity.
"100. One particularly important factor is the ground of the difference in treatment. In principle, and all other things being equal, the court usually applies a strict review to the reasons advanced in justification of a difference in treatment based on what it has sometimes called "suspect" grounds of discrimination. However, these grounds form a somewhat inexact category, which has developed in the case law over time, and is capable of further development by the European court. Furthermore, a much less intense review may be applied even in relation to some so-called suspect grounds where other factors are present which render a strict approach inappropriate, as some of the cases to be discussed will demonstrate."
At  he considered sexual orientation discrimination, noting that the ECtHR had stated that differences in treatment require "particularly serious reasons" by way of justification, while at [109-111] he described a similar approach to religious discrimination. However, he also noted that the court has taken a less strict approach in some cases of religious discrimination where other factors were relevant. He summarised at [115-116] the court's approach to justification generally and noted that it is a matter of some complexity. He identified a number of general factors that may be relevant in the circumstances of a particular case and concluded that, unless one factor is of overriding significance, it is necessary for the court to make a balanced overall assessment.
"191. In Catholic Care, supra, Sales J (as he then was) sitting in the Upper Tribunal considered the policy of a Roman Catholic adoption charity only to recruit heterosexual couples. This was in the context of s 193, which I will come to, however, the question of justification is the same as in relation to s 19(2).
192. The facts were that until the end of 2008 the charity had adopted the practice of providing adoption services to heterosexual adoptive parents so as to constitute a family of mother, father and child, excluding same sex couples from consideration as potential adoptive parents for reasons of religious doctrine. Following a change in the law prohibiting discrimination in the provision of services on grounds of sexual orientation, the charity sought to avail itself of the limited exemption for charities in regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263), made under s 81 of the Equality Act 2006, by applying to the Charity Commission for consent under s 64 of the Charities Act 1993, as amended, to amend its charitable objects to provide adoption services only to heterosexuals and in accordance with the tenets of the Roman Catholic Church.
193. The Commission refused permission to amend both then, and after the matter had been remitted to it by the High Court following an appeal: Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening)  EWHC 520 (Ch); (Briggs J).
194. Regulation 18 was superseded by s 193 of the EA 2010 but the effect of the two provisions is identical.
195. On the Charity's appeal to the First-tier Tribunal against the Commission's decision, the charity contended that the legitimate aim to be served by the amendment to its memorandum of association and consequent resumption of its provision of adoption services limited to heterosexuals was the prospect of increasing the number of children, particularly hard to place children, placed with adoptive families, and that unless it were permitted to discriminate as it proposed its voluntary income would reduce leading to a loss of provision of adoption services and fewer children placed with adoptive families.
196. The Tribunal dismissed the appeal, concluding that the charity had not demonstrated that the legitimate aim which it identified would be achieved by its proposed method and so the charity had not established that particularly weighty reasons existed to justify the discrimination.
197. The charity appealed to the Upper Tribunal. It was common ground that s 193 of the EA 2010 should be interpreted as allowing a charity to seek to establish that a defence of objective justification was made out by reference to the principles applied for the purposes of Article 14 of the Convention. It was also accepted by the Charity that 'religious conviction alone could not in law provide a justification for the denial of its adoption services to same sex couples.'"
(1) Where, as a consequence of some people having prejudices about gay men and lesbians, some real detriment to the general public interest of sufficient weight might arise unless a discriminatory practice were adopted, it was in principle possible under Article 14 of the Convention and s 193 of the EA 2010 for such a practice to be proportionate to the legitimate aim of preventing that detriment or harm and hence objectively justified. What is required is a practical approach, looking to see if there really would be a serious detriment to some aspect of the public interest or legitimate objective if a practice involving such differential treatment were not followed. So, if it was shown that there was a significant prospect that more children would be placed for adoption if the organisation was allowed to discriminate against homosexuals than would otherwise be the case, then the interests of those children provide an argument in favour of permitting the Charity to proceed in that way. [38, 41, 52]
(2) The sincerely held preference of donors, motivated by respect for Roman Catholic doctrine, to support adoption within a traditional family structure, being in line with a major tradition in European society, had a legitimate place in a pluralist, tolerant and broadminded society; but that, in the context of assessing whether the Charity had made out a case of objective justification, the Charity's view that the traditional family should be promoted was not entitled to be given the same degree of weight as if it had been adopted by the national authorities; further, even where a body acts in accordance with such views, if in doing so it discriminates against homosexuals, it is still necessary for it to show that there are particularly convincing and weighty reasons justifying differential treatment. [45, 47, 48]
(3) The analysis of the Tribunal, rejecting on the basis of the evidence before it the Charity's claim that discrimination against homosexuals would be likely to increase in a significant way the number of children placed with adoptive families, could not be faulted and disclosed no error of law. The Charity had failed to show that there were sufficiently weighty and convincing reasons why it should be permitted to change its memorandum of association to enable it to discriminate as it proposed. 
(1) Carer numbers. The Judge's characterisation at  of an alleged national shortage of foster carers as "a core part of Cornerstone's case" set up something of a soft target. I have described the matters relied upon by Cornerstone to justify its policy at paragraph 111 above. Its case on carer numbers was centrally that it specialises in finding carers for children who are difficult to place. It asserted that there is a shortage of carers for these children, and that was also Ofsted's evidence. Further, Ofsted's evidence, accepted by the Judge, was that there was no evidence that recruiting evangelical Christian carers would respond to any shortage driven by 'matching' problems, but against this the court had Cornerstone's evidence that placing 'hard to place' children is what it has always done, and it is unclear why the Judge gave no weight to that. It was also Cornerstone's case that its ethos would encourage evangelical Christians to come forward as carers, but the Judge did not engage with this plausible assertion. Instead he viewed the matter solely from the point of view of the pool of carers being reduced by the exclusion of homosexuals. In my view there is some substance in Cornerstone's complaint that the Judge did not squarely address its case in these respects. In analytical terms, this challenges his conclusion at  that its case failed at the second stage of the Bank Mellat test (whether the measure is rationally connected to the objective it seeks to achieve).
(2) Relevant factors. In my view the Judge should have given at least some weight to some or all of the following:
- The absence of identified victims.
- The apparent success of Cornerstone's work for children under the current policy regime.
- The intensity of the challenge for those fostering children with high levels of need (see, for example Prospective Adopters v Sheffield City Council  EWCA Civ 1591).
- The critical support that carers were reported (by Ofsted) to gain from being part of a common venture with co-religionists:
"Foster carers feel that this is highly beneficial to them and in turn the children that they care for, as they feel that it offers them enhanced support through Christian prayer, for example, and from individuals who share their perspectives and values."
- Cornerstone's own perception of the quandary in which Ofsted's requirement placed it, when it is better placed than the court to decide what it ought to feel about that.
These matters challenge the Judge's conclusion that Cornerstone's case failed at the third stage in Bank Mellat: whether it could achieve what it wants to achieve by a less restrictive measure.
Lady Justice Asplin
Lady Justice Nicola Davies