The gay adoption hearing and the links of the man who heard it [biased chair decided against gay equality]

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The gay adoption hearing and the links of the man who heard it

I
The tribunal which recently allowed a Scottish adoption agency to go on discriminating against gay couples was chaired by a solicitor who is actively associated with an organisation implacably opposed to gay marriage, the Scottish Review has learned.

Today's disclosure raises questions about the failure of the Scottish Charity Appeals Panel (SCAP), a body accountable to the Scottish ministers, to identify an apparent conflict of interest. It appears to undermine an assurance on the panel's website that no conflicts should arise between the outside interests of panel members and their appointment to particular cases.

The case in question is the appeal of St Margaret's Children and Family Care Society, an adoption agency supported by the Roman Catholic Church, against a decision of the Scottish charity regulator, OSCR, to revoke its charitable status on the grounds of discrimination against same-sex couples. SCAP, which was set up to provide 'fair, independent and informed adjudication', decided earlier this year to uphold St Margaret's appeal.

The decision was greeted with dismay and near-disbelief by the National Secular Society, which had originally objected to OSCR about the charity's selection policies, and by other equal rights campaigners. It was, however, applauded as 'wise' by the Roman Catholic hierarchy in Scotland.

After an eight-day hearing in January, the panel argued that, although St Margaret's receives most of its funding from local authorities, it is subject by its articles of association to the teaching of the church. If the charity had carried out the demands of OSCR and removed its discrimination against gay people, it would have been in contravention of canon law and the church would no longer have been able to support it.

St Margaret's, in selecting adoptive parents, does not specifically exclude people in civil partnerships, but gives preference to Catholic heterosexual couples who have been married for at least two years. The church testified at the appeal hearing that 'adoption of children by homosexuals is not consistent with Catholic teaching'.

OSCR had ruled that the charity's policies constituted direct discrimination. The panel came to a different conclusion – that St Margaret's 'indirectly' discriminated against gay people, but that such discrimination was a 'proportionate means of achieving a legitimate aim'.

With this important exemption, St Margaret's is free to continue discriminating against prospective parents who happen to be gay. The implications for the charity of the new marriage law in Scotland are unclear.

II
Meanwhile, it has emerged that John Walker, the solicitor who chaired the panel of three which adjudicated in St Margaret's favour, is a member and current office-bearer – the secretary – of Ayr Baptist Church. This is one of many Christian organisations which took part in the Scottish Government's consultation on civil partnerships and gay marriage.

Ayr Baptist Church's evidence was uncompromising, as the following excerpts from its submission illustrate:

Religious bodies have strong convictions regarding the issue of civil partnerships and should not be required to register them

Same-sex civil marriage is contrary to the heritage of our nation

Religious celebrants should be required to adhere to the holy orders to which they have been called and to adhere to the laws and traditions of their own churches

To the question, 'Do you agree with the introduction of same-sex marriage, both religious and civil', Ayr Baptist Church replied: 'No. We do not agree, as marriage is between a man and a woman and should remain that way'.

Revealingly, the submission makes a critical reference to the charity regulator. It states that religious bodies should be protected from the use of their buildings for solemnising same-sex marriage against their wishes, in case a way was 'left open' for OSCR to claim that churches were not acting for the public benefit – one of the tests of charitable status.

No individual was identified in the submission, but if Mr Walker disagreed with its terms, he would no doubt have wished to say so publicly, then or subsequently, for the avoidance of any misunderstanding.

Mr Walker makes no secret of his affiliation to Ayr Baptist Church: he includes it in SCAP's register of members' interests. It seems astonishing that the panel's secretariat, before appointing him to such a high-profile, controversial appeal, failed to check a document – the church's submission on the registration of civil partnerships and gay marriage – which is publicly available on the Scottish Government's own website; or, if they did check, thought so little of it that they allowed the appointment to go ahead.

III
There is no suggestion that the panel consisting of Mr Walker, Neil Dickson (a retired university teacher) and Patricia Paton ('an active member of the Scottish Episcopal Church'), acted with less than complete propriety in its handling of the St Margaret's appeal.

But this is not the issue. If a tribunal such as the Scottish Charity Appeals Panel is to retain public confidence, it must ensure that there are no conflicts of interest. Otherwise, the independent reputation of the Scottish tribunal system will inevitably be exposed to the risk of compromise.

On Monday afternoon, we invited SCAP to state whether it considered it appropriate that Mr Walker should have been chair of the St Margaret's hearing; we asked them to get back to us by 5pm on Tuesday. It is now 9.30 on Wednesday morning and we have heard nothing: not so much as an acknowledgement of our request.

Kenneth Roy is editor of the Scottish Review