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THE JUSTICIABILITY OF RELIGION

  • Satvinder S. Juss (a1)
Abstract

In Shergill & Others v. Khaira & Others [2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of the Nirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. In Shergill the Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). But Shergill also went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

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References
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1 Meakin, , “Property Rights for Dissenting Members of Religious Charities,” Charity Law and Practice Review 15, no. 4 (2012–13): 5568, at 55.

2 The cases discussed include General Assembly of the Free Church of Scotland v. Overtoun [1904] AC 515 (1904 7 F (HL) 1); Varsani v. Jesani [1999] Ch 219; Craigdallie v. Aikman (1813) 1 Dow 1, 14–16; Attorney General v. Pearson (1817) 3 Mer 353, 400–01, 36 ER 136, 150; Deane v. Burne [2009] EWHC 1250 (Ch); White & Ors v. Williams & Ors [2010] EWHC 940 (Ch); Rai and Others v. Charity Commission for England and Wales [2012] EWHC 1111 (Ch); Williamson v. Archbishop of Canterbury and Archbishop of York Church Commissioners [1996] EWCA Civ 600; HH Sant Baba Jeet Singh Ji Maharaj v. Eastern Media Group & Anor [2010] EWHC 1294 (QB); Free Church of Scotland (Continuing) v. General Assembly of the Free Church of Scotland [2005] CSOH 46.

3 Meakin, “Property Rights for Dissenting Members of Religious Charities,” 56.

4 Ibid., 57 (referring to the case of Craigdallie v. Aikman (1813) 1 Dow 1).

5 [1999] Ch 219.

6 In 2005, Parliament passed the Constitutional Reform Act, placing the House of Lords appellate jurisdiction in a newly created Supreme Court. Constitutional Reform Act 2005 (c. 4).

7 In fact, the Shergill case originally arose out of a number of suits from a decade-long litigation that straddled defamation law. At its heart was the issue of the declaration of the head of a religious order, from a minority religious faith the doctrinal beliefs of which were not necessarily easy for the UK secular courts to fathom and pronounce upon. When in Baba Jeet v. Singh it was alleged that an article in the Sikh Times damaged the reputation of the Third Holy Saint by describing him as the leader of a “cult” who, as an imposter, had produced false trust deeds to sack the trustees of the High Wycombe gurdwara in northwest London, the action was stayed because it raised issues that were nonjusticiable. Similarly, when another libel claim arose in Shergill v. Purewal, [2010] EWHC 3610 (QB), from three articles written by a journalist who attacked the Third Holy Saint for having deviated from orthodox Sikh religious doctrine and misleading his supporters, that claim, too, was stayed by the court as not giving rise to justiciable issues. The Supreme Court in Shergill had to decide to what extent a policy of judicial abnegation was sustainable in a modern era of cultural diversity and religious pluralism.

8 Free Church of Scotland (Continuing) v. General Assembly of the Free Church of Scotland [2005] CSOH 46.

9 Cranmer, , “Christian Doctrine and Judicial Review: The Free Church Case Revisited,” Ecclesiastical Law Journal 6, no. 31 (2002): 318–31.

10 See, “The Westminster Confession of Faith,” Center for Reformed Theology and Apologetics, http://www.reformed.org/documents/wcf_with_proofs/.

11 Cranmer, “Christian Doctrine and Judicial Review,” 331.

12 Sandberg, Russell, “Khaira and Others v. Shergill and Others: Religious Doctrine–Non-Justiciability,” Ecclesiastical Law Journal 15, no. 1 (2013): 121–22.

13 Rivers, Julian, The Law of Organized Religions: Between Establishment and Secularism (Oxford: Oxford University Press, 2010), 73 . See also Rivers's preference for the secular approach to Blake v. Associated Newspapers Ltd [2003] EWHC 1960: “One can easily distinguish between claims which are simply true or false (eg that a person does or does not hold a certain position in a certain religious organization) and claims which depend on a theological judgment.” Ibid., 145.

14 Smith, Peter, “The Problem of the Non-Justiciability of Religious Defamations,” Denning Law Journal, no. 27 (2015): 241–57, at 257.

15 Smith refers to Thomas Phillips v. Thomas Monson [2014] Westminster Magistrates Ct (District Judge Riddle):

It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr. Monson personally. The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based. It is inevitable that the prosecution would never reach a jury, even if Mr. Monson chooses to attend. To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue and misleading. That proposition is at the heart of the case. No judge in a secular court in England and Wales would allow that issue to be put to a jury. It is non-justiciable.

Ibid., 256n84.

16 Hale, Baroness, “Secular Judges and Christian Law,” Ecclesiastical Law Journal 17, no. 2 (2015): 170–81. These statements from Baroness Hale come in a review of Norman Doe's recent book, Christian Law: Contemporary Principles (Cambridge: Cambridge University Press, 2013), which compares and contrasts the internal regulations of churches and seeks to identify principles common to churches across the denominational spectrum. Baroness Hale reviews the religious questions that have come before the House of Lords and Supreme Court since 2004 and seeks to identify the principles governing the secular courts’ approach to religious questions. She maintains that the relationship between those principles and the principles outlined in Christian law is far from clear, even while an understanding of the rules of particular religious bodies is sometimes necessary for secular judges deciding civil rights in a religious context.

17 Juss, Satvinder S., “Back to the Future: Justiciability, Religion and the Figment of ‘Judicial No-Man's Land,’Public Law, no. 2 (April 2016): 198206, at 199–200.

18 [1904] AC 515 (1904 7 F (HL) 1).

19 Ibid., 613.

20 The Westminster Confession of Faith provides for (1) the real presence in the sacrament, (2) the supreme authority of God's Word, and (3) the catholicity of the church. It specifically addresses the true preaching of the Word, the right administration of the sacraments, and discipline. “The Westminster Confession of Faith,” last accessed July 13, 2017, http://www.reformed.org/documents/wcf_with_proofs/.

21 Under Calvinist theology, where God exercises control over the world, the doctrine of “Predestination” refers to the belief that God appointed the eternal destiny of some to salvation by grace, while leaving the remainder to receive eternal damnation for all their sins, including their original sin. Calvinists believe that people are predestined and effectually called in due time to faith by God. “Double predestination” in Calvinism is the view that God has actively chosen some people for damnation, as well as others for salvation. For an early influential discussion of this doctrine, see Dowey, Edward A. Jr., The Knowledge of God in Calvin's Theology (New York: Columbia University Press, 1965).

22 The United Presbyterian Church of Scotland (1847–1900) was formed in 1847 by the union of the United Secession Church and the Relief Church, and it was a Scottish Presbyterian denomination. In 1900 it merged with the Free Church of Scotland. It then formed the United Free Church of Scotland. In 1929 it merged again with the Church of Scotland. In this way, for most of its existence the United Presbyterian Church was the third largest Presbyterian Church in Scotland. Like Scots Presbyterianism, it espoused a liberal tradition.

23 Free Church v. Lord Overtoun [1904] AC 515 (1904 7 F (HL) 1), 613.

24 Ibid., 623.

25 Ibid., 627.

26 Ibid., 613–14.

27 Ibid., 719.

28 [1999] Ch 219.

29 Ibid., 232.

30 Nirmal means “pure.” Kutia refers to the House of Reeds that he built. Johal is the village where he settled in north India.

31 The description of the facts in this case is taken from Smith, “The Problem of the Non-Justiciability of Religious Defamations,” 247–48.

32 See His Honor Judge Cooke's opinion in Khaira v. Shergill [2003] EWHC 4162 (ch), paras. 22–25.

33 Ibid., para. 42.

34 Ibid., para. 42 (referencing Buttes Gas and Oil Co. v. Hammer (No 3) [1982] AC 888, 935–37).

35 Prebble v. Television New Zealand Ltd [1995] 1 AC 321.

36 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para 42.

37 Ibid., para. 43.

38 Ibid.

39 Ibid. (referencing R (on the Application of the Campaign for Nuclear Disarmament) v. Prime Minister [2002] EWHC 2777 (Admin); R (on the Application of Al-Haq) v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin)).

40 Ibid.

41 R (on the Application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598.

42 In R (on the Application of Gentle) v. Prime Minister [2008] UKHL 20, para. 8, Lord Wilberforce states that there are “issues which judicial tribunals have traditionally been very reluctant to entertain because they recognize their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude.” See also, the reference to Gentle in Shergill [2014] UKSC 33, para. 43.

43 Shergill [2014] UKSC 33, para 44, (referencing Bruker v. Marcovitz [2007] 3 SCR 607). The Supreme Court also cited Syndicat Northcrest v. Amselem [2004] 2 SCR 47, para. 44.

44 Ibid., para. 44.

45 X v. X [2001] EWHC 11 (Fam), para 1. The get and the get procedure have been described by Wall J in Berkovits v. Grinberg (Attorney-General Intervening) [1995] Fam 142 and again in N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR 745. In the latter case Wall J said, (1) A get, to be valid must be a mutually consensual transaction. The husband must freely deliver the get, and the wife must freely receive it. (2) Only the husband can initiate the get process. (3) A get obtained by compulsion on either the husband or the wife is invalid in Jewish law. N v. N [1999] 2 FLR 745, at 750.

46 Ibid., para. 111.

47 Ibid., para. 112.

48 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 44.

49 Ibid., para. 44 (quoting Bruker v. Marcovitz [2007] 3 SCR 607, para. 122).

50 Ibid., para. 37.

51 Buttes Gas and Oil Co. v. Hammer (No.3) [1982] AC 888 (Lord Wilberforce J).

52 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 38.

53 Ibid., para. 38.

54 In Shergill, the Supreme Court explained that

Lord Wilberforce's reference to judicial and manageable standards was a quotation from the decision of the Fifth Circuit Court of Appeals in the United States litigation between the same parties upon substantially the same issues. That was in turn based on the celebrated decision of the United States Supreme Court in Underhill v. Hernandez 168 US 250 (1897) about the act of state doctrine. The reason why the Fifth Circuit Court of Appeals regarded the issue as non-justiciable was not that judges were incapable of deciding questions of international law. Nor was that why Lord Wilberforce agreed with them. Quite apart from the fact that he was himself an international lawyer of some distinction, he points out at p 926F that English courts had on a number of occasions decided issues about the international boundaries of sovereign states “without difficulty.” The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.

Ibid., para. 40.

55 Ibid., para. 38.

56 Ibid., para. 39.

57 In Shergill, as the Supreme Court explained, the Buttes Gas and Oil case was one where, “the dispute arose out of the way in which the four states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force in a manner adverse to the interests of Occidental Petroleum. Occidental wished to obtain a judicial decision that that settlement had been the result of an unlawful conspiracy” and this judicial settlement the Court could not provide against the background of these facts. See ibid., para. 40.

58 Ibid., para. 40.

59 Ibid.

60 Ibid.

61 R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex p Wachmann [1992] 1 WLR 1036.

62 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 58.

63 Since, however, the case did not involve property rights for dissenting members of religious charities it is not discussed by Robert Meakin in his clear and concise analysis of how property can continue to be held by those professing new doctrinal beliefs different from those in the original religious constitution or charitable trust and company. Meakin, “Property Rights for Dissenting Members of Religious Charities.”

64 This was made clear by the Supreme Court in Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 58.

65 As the Supreme Court explained in Shergill, ibid, para. 58, this would have followed on from the principles established in Long v. Bishop of Cape Town (1863) 4 Searle 162 PC, 176; R v. Imam of Bury Park Mosque, Luton, Ex parte Sulaiman Ali, CA 12 May 1993 QB COF 91/1247/D (Times, 20 May 1993) (Roch LJ citing Lee v. Showmen's Guild of Great Britain [1952] 2 QB 329, 342 (Denning LJ)); Brentnall v. Free Presbyterian Church of Scotland 1986 SLT 471.

66 Varsani v. Jesani [1999] Ch 219.

67 Meakin, “Property Rights for Dissenting Members of Religious Charities,” 59.

68 Ibid.

69 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para 55.

70 Varsani v. Jesani [1999] Ch 219, 233.

71 Meakin, “Property Rights for Dissenting Members of Religious Charities,” 68. A public law issue nevertheless has to be in contention, which is why issues of religious doctrine could not be considered in relation to the status of a priest in the 2003 case of Blake v. Associated Newspapers Ltd [2003] EWHC 1960, as there was no public law issue involved. Here the court stayed an action for defamation by Mr. Blake against the publisher of the Daily Mail for describing him as a “self-styled” or “imitation” bishop, after he had relinquished his status as a priest within the Church of England. He had subsequently established another organization where he had then been consecrated as a “bishop.” Blake is discussed in greater detail later in the article.

72 Although the Supreme Court referred to four cases, there were many more at the time. See Rivers, The Law of Organized Religions, chapter 3.

73 Craigdallie v. Aikman (1813) 1 PC Dow 1, 14–16, (cited in Shergill [2014] UKSC 33, para. 51).

74 Attorney General v. Pearson (1817) 3 Mer 353, 400–01, 36 ER 136, 150 (cited in Shergill [2014] UKSC 33, para. 51).

75 General Assembly of the Free Church of Scotland v. Overtoun [1904] AC 515, 7 F (HL) 1.

76 Smith v. Morrison (2011) SLT 1213.

77 Ibid., para, 101 (cited Shergill [2014] UKSC 33, para. 52).

78 Venter, , Constitutionalism and Religion (Cheltenham: Elgar Publishing, 2015), 172 .

79 See Munby J in Sulaiman v. Juffali [2001] EWHC 556 (Fam), at 47, where the full paragraph reads as follows:

Although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice to all manner of people. Religion—whatever the particular believer's faith—is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.

80 The phrase was used by Lord Wilberforce in the boundary dispute case involving the territory of three Gulf states of Buttes Gas and Oil Co. v. Hammer (no. 3) [1982] AC 888, which, although not a case involving religion, was cited with approval by Mummery LJ when His Lordship declined jurisdiction to hear the appeal in Shergill & Ors v. Khaira & Ors [2014] UKSC 33, paras. 38–39.

81 National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (holding that the domestic authorities could not disregard the bishop's will by recognizing a trade union for teachers from Catholic schools). The general concept of the autonomy of religious institutions in church-state relations has been affirmed by the US Supreme Court more recently in Hosanna-Tabor Evangelical Lutheran Church, where the Court applied the “ministerial exception” doctrine, and held that the provisions of labor law were not applicable to employees of religious institutions, without regard to whether the employees were laity or clergy. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). European courts, including the Grand Chamber of the European Court of Human Rights, have also recognized the autonomy of religious institutions. See Sindicatul “Păstorul cel Bun” v. Romania 2330/09 Grand Chamber Judgment [2013] ECHR 646 (09 July 2013), para. 127.

82 Venter, Constitutionalism and Religion, 172.

83 R(E) v. Governing Body of JFS [2010] 2 AC 728, paras. 157–60.

84 Ibid., para. 160.

85 This assumption of nonjusticiability has been so prominent that a strange irruption of the doctrine has taken place since the time of the Blake case in 2003, as discussed above, and it has created a curious instability in the law, which has oscillated between regarding religious disputes as a no-go area, to regarding them as entirely irrelevant to the determination of civil rights and interests.

86 In his book Ecclesiastical Law, Mark Hill QC states that “a self-denying principle of non-interference by which the judiciary decline to enter into questions concerning the internal affairs of religious organisations is now well-established.” Hill, , Ecclesiastical Law, 3rd ed. (New York: Oxford University Press, 2008), ch. 1, para. 43. Hill later adds, “The courts have repeatedly expressed their unwillingness to trespass into matters of doctrine but will do so where necessary.” Ibid., ch. 1, para. 44. Confusion has also been caused by R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth ex p. Wachmann, which concerned an Orthodox rabbi dismissed from his post following a declaration by the chief rabbi that he was unfit because of his adulterous relationship with a congregant. Simon Brown J wrote, “The court is hardly in a position to regulate what was essentially a religious function—whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office. The court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state.” [1992] 1 WLR 1036, para. 1042H-3A.

87 Shergill v. Purewal & Anor [2011] EWCA Civ 815.

88 Ibid., para. 2.

89 Ibid., para. 1.

90 Ibid., para. 5.

91 Ibid., para. 1.

92 Ibid., para. 2.

93 The respondents had actually referred to the two judgments of Gray J in Blake v. Associated Newspapers Ltd, [2003] EWHC 1960, and Simon Brown J in R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex p Wachmann, [1992] 1 WLR 1036, in support of their contention that the dispute in this case was nonjusticiable. See Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 57.

94 The Supreme Court went on to explain how, had the case arisen in Scotland, it would have been determined on the religious issues regardless of the lack of a public law dimension to the case because, “the wider scope of the supervisory jurisdiction of the Court of Session, which extends to those who exercise a jurisdiction conferred by private contract, would have allowed the challenge to be in the form of an application for judicial review as an alternative to a claim based on contract.” Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 58. This proposition is clear from West v. Secretary of State for Scotland 1992 SC 385, Lord President Hope at 399–400 (cited in Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 58).

95 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 58.

96 Ibid., para. 57.

97 Ibid. However, the Court continued, “the problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. The expression of such views without malice is likely to be protected by the defence of honest comment—what used, until Joseph v. Spiller [2011] 1 AC 852, to be called fair comment.” Ibid.

98 Smith v. Morrison 2011 SLT 1213, paras 113–16 (cited in Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 52.

99 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 52.

100 Ibid.

101 Mackay v. Macleod (10 January 1952) (unreported).

102 Smith v. Morrison [2011] SLT 1213, para. 118.

103 Ibid.

104 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 52.

105 Ibid., para. 53.

106 Free Church of Scotland v. Overtoun [1904] AC 515 (1904 7 F (HL) 1), at 644–45.

107 Ibid.

108 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 59. The Supreme Court also held that “there is a strong case for saying that expert evidence should be permitted” for the resolution of these questions. See ibid., para. 60.

109 Ibid., para. 54.

110 Hasanali v. Mansoorali (Privy Council Appeal No 79 of 1945) (unreported, 1 December 1947). In my earlier short analysis of the Shergill decision, I indicated that Hasanali was unreported (see, Juss, “Back to the Future,” 199n15). I had based this on the observation of the Supreme Court judgment itself, which had recorded the decision as being unreported. It is in fact reported in Law Reports (Indian Appeals) vol. 75 (1947): 1 . This case is further considered and followed in the decision of the Supreme Court of India reported in Sardar Syedna v. State of Bombay, 1962 Supp. 2 SCR 496 (holding the Bombay Prevention of Excommunication Act of 1947 unconstitutional because it violated Articles 25 and 26 of the Constitution of India.) The Hasanali decision was further noted in a later decision of the Supreme Court in 2005 (2) SCC 673).

111 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 54.

112 Shergill v. Khaira & Ors [2012] EWCA Civ 1582 (02 October 2012), para. 71 (Mummer LJ).

113 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para 55. See Jeremy Cliffe's recent groundbreaking paper, “Britain's Cosmopolitan Future: How the Country is Changing and Why Its Politicians Must Respond,” Policy Network, May 14, 2015, http://www.policy-network.net/publications/4905/Britains-Cosmopolitan-Future. See Zucca, Lorenzo, Law, State, and Religion in the New Europe: Debates and Dilemmas (Cambridge: Cambridge University Press, 2012), where consideration is given to the conflict between law and religion in Europe, and an analyses undertaken of the role played by courts in adjudicating conflicts of rights to religious freedom and other rights. See also, Zucca, Lorenzo, A Secular Europe: Religion in the European Constitutional Landscape (Oxford: Oxford University Press, 2012), where Zucca propounds the thesis that the secular state should today be understood as a reconciliation of diversity in European society.

114 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 47.

115 Barker v. O'Gorman [1971] Ch 215.

116 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 47.

117 In passing it may be added that the Methodist Church subsequently gained power to vary its doctrinal standards under the Methodist Church Act 1976, but that, of course, was after Barker.

118 The classic case is the United Reformed Church Acts 1972–2000. Here the initial union was between the Presbyterian Church of England (which broadly follows the Calvinist/Reformed tradition) and the vast majority of the Congregational Church in England (which in its theology is much less confessional). The union had to braid and interweave together two very different forms of church government and two quite different styles of doing theology. Once the Act of Parliament was passed there could be no further arguments about whether or not the various trustees, in agreeing to the union, had departed from any foundational principles that the trusts were obliged to hold.

119 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 48.

120 [1940] ScotCS CSIH 3.

121 This is the document that sets out the essential tenets of its religious doctrine.

122 McDonald v Burns [1940] ScotCS CSIH 3 (March 29, 1940), http://www.bailii.org/scot/cases/ScotCS/1940/1940_SC_376.html.

123 Ibid.

124 Ibid.

125 Shergill & Ors v Khaira & Ors [2017] EWHC 883 (Ch) (March 3, 2017), http://www.bailii.org/ew/cases/EWHC/Ch/2017/883.html.

126 For an early commentary, see Frank Cranmer, “Disputed Trusteeship: Shergill v Khaira Yet Again,” Law and Religion UK (blog), April 21, 2017, http://www.lawandreligionuk.com/2017/04/21/disputed-trusteeship-shergill-v-khaira-yet-again/.

127 Ibid., para. 49.

128 Ibid., para. 50.

129 Ibid., para. 52.

130 Ibid., para. 53.

131 Ibid., para. 54. The other Supreme Court decision was that of September 16, 2003, which Judge Purle discussed at paragraph 56 of his judgment.

132 Ibid., para. 55.

133 Ibid., para. 57.

134 Ibid.

135 Ibid., para. 59.

136 Ibid.

137 Ibid., para. 68.

138 Ibid.

139 Ibid., para. 69.

140 Shergill & Ors v. Khaira & Ors [2014] UKSC 33, para. 45.

141 Ibid., para. 46.

142 Cranmer, “Is Religious Doctrine Justiciable? Up to a Point, Yes: Shergill v Khaira,” Law and Religion UK (blog), June 11, 2014, http://www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-to-a-point-yes-khaira-v-shergill/.

143 Neil Addison, “Shergill v. Khaira—When Can Religious Doctrine Be Justiciable?,” Religion Law (blog), June 12, 2014, http://religionlaw.blogspot.com/2014/06/shergil-v-khaira-when-can-religious.html.

144 Smith, “The Problem of the Non-Justiciability of Religious Defamations,” 255–56.

145 Rivers, The Law of Organized Religions, 73.

146 The States of Guernsey & Anor v. Secretary of State for Environment, Food and Rural Affairs & Anor [2016] EWHC 1847, para. 74 (Jay J). Mr. Justice Jay was referring to paragraphs 42–43 of Shergill, but as he himself pointed out, “these labels were not deployed [in Shergill]” but are a useful way to summarize what the Supreme Court had in mind.

147 R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages [2013] UKSC 77, para. 57.

148 Ibid., para. 54.

149 Nevertheless, it has been observed that

the legal system does have experience in attempting to define a religion and in establishing principles by which to recognise religions. This shows that no single or universal definition is possible. One context in which the concept is explored is in cases involving charitable trusts set up for the advancement of religion. In re: South Palace Ethical Society, Mr. Justice Dillon held that a society for the study and dissemination of ethical principles that did not involve faith in a deity could not constitute religion. He said, “In a free country … it is natural that the court should desire not to discriminate between beliefs deeply and sincerely held, whether they are beliefs in God or in the excellence of man or in ethical principles or in Platonism or some other scheme of philosophy. But I do not see that that warrants extending the meaning of the word “religion” so as to embrace all other beliefs and philosophies. Religion, as I see it, is concerned with man's relations with God, and ethics are concerned with man's relations with man. The two are not the same, and are not made the same by sincere inquiry into the question, what is God. If reason leads people not to accept Christianity or any known religion, but they do believe in the excellence of qualities such as truth, beauty and love, or believe in the Platonic concept of the ideal, their beliefs may be to them the equivalent of a religion, but viewed objectively they are not religion … . It seems to me that two of the essential attributes of religion are faith and worship; faith in God and worship of that God.

Re South Place Ethical Society Barralet and Others v. Attorney General and Others [1980] 1 WLR 1565, at 1571 (quoting Bob Hepple QC and Tufyal Choudhury, “Tackling Religious Discrimination: Practical Implications for Policy-Makers and Legislators,” Home Office Research Study 221 (London: Home Office Research, Development and Statistics Directorate, 2001), 27–28, http://www.religionlaw.co.uk/reportae.pdf).

150 Sandberg, Russell, “Defining the Divine,” Ecclesiastical Law Journal 6, no. 2 (2014): 198204 .

151 See R v. Registrar General ex parte Segerdal and another [1970] 3 All ER 886.

152 Smith, “The Problem of the Non-Justiciability of Religious Defamations,” 257.

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
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