Court of Appeal backs Ofsted attempt to re-write meaning of “evangelical” – Supreme Court appeal sought

• Court of Appeal ruling today confirms that an evangelical foster agency can work exclusively with evangelical carers, but seeks to impose its own definition of “evangelical”.
• The agency, Cornerstone Adoption and Fostering, which is backed by The Christian Institute, is seeking to appeal to the Supreme Court.

The Christian Institute has responded to today’s Court of Appeal ruling in the case of Cornerstone v Ofsted.

Deputy Director for Public Affairs, Simon Calvert, said:

“It’s right to fight discrimination. And evangelical Christians, though much maligned, have a good track record of welcoming people marginalised by the rest of society. But the law and language of discrimination is in danger of being distorted beyond recognition. What the court has done today, in the name of opposing discrimination, is actually to support discrimination by a powerful state regulator against a small voluntary group.

“The Christian Institute has supported Cornerstone as it has sought to defend itself. All it wants to do is find homes for hard to place children by bringing evangelical carers into the system. Is that such a bad thing?”

“Today’s Court of Appeal judgment claims ‘religious doctrine does not stand still’ and implies a role for Ofsted and the Equality Act in changing it [see para. 137 below]. This shocking defence of state over-reach in religious matters fundamentally misunderstands the nature of Christianity. Hundreds of millions of Christians around the world believe the Bible to be the unchanging and ever-relevant word of God.

“No gay carers were ever discriminated against by Cornerstone so this ruling does not in any sense ‘right a wrong’. Instead, Cornerstone is being punished for holding the ‘wrong beliefs’. Even worse, it is being told what it should believe instead. This is not what equality and human rights law are meant to be about.

“The Court of Appeal did confirm that Cornerstone suffered a significant interference with its human right to manifest its religious beliefs. We hope there will be an opportunity, in due course, for the Supreme Court to engage further with this and strike a fairer balance of competing rights.”

Extracts from today’s judgment

The full judgment is available here.

• 91 – “In my view, the Judge was wrong to conclude that Cornerstone’s policy did not amount to a manifestation of religion.”
• 92 – “Cornerstone was explicitly set up to manifest the faith of its carers through its fostering activities… The Judge also left out of consideration the fact that carers associate with each other for mutual support as part of what they see as their mission.”
• 93 – “I would therefore hold that the Judge erred in this respect and that Cornerstone’s foster carer recruitment policy falls within the protection of Article 9 of the [European Convention on Human Rights].”
• 98 – “Again, I consider that the Judge was wrong to find that there had been no material or significant interference with Cornerstone’s right to manifest its beliefs. …Ofsted’s requirement that it changes its recruitment policy in a manner that is dissonant with one of its foundational purposes is consequently a matter that is of significance for it in practice.”
• 107 – “The parts of the Judge’s analysis that are in my judgement incorrect concern his treatment of Cornerstone’s own claim under the [Human Rights Act] 1998, as to which I would hold that:

(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.”

• 105 – “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.”
• 136 – “The Judge was not obliged to adopt Cornerstone’s doctrinal definition of evangelical Christians so as to find that gay and lesbian evangelical Christians are not merely unidentified but non-existent.”
• 137 – “Furthermore, an important purpose of the [Equality Act] 2010 is to support progress on equality and it must be recognised that religious doctrine does not stand still… Ms Hannett QC [for Ofsted] encapsulated these ideas in the submission that there is such a thing as ‘regulatory virtue’ in securing compliance with the EA 2010, though she did not rest her case on that alone. At first, that seemed to me to be a chilly submission, but on further thought I would accept that it is only by protecting those who are discriminated against in small numbers that equality can be progressed for wider communities.”
• 141 (1) – “…Ofsted’s evidence, accepted by the Judge, was that there was no evidence that recruiting evangelical Christian carers would respond to any shortage [of carers] 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.”
• 141 (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…

• 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.”