Is religious doctrine justiciable? Up to a point, yes: Shergill v Khaira

Background

This case involved disagreements about the trusteeship and governance of two gurdwaras used by members of the Sikh community. It centred upon whether or not the ninth claimant was entitled to exercise a power to remove and appoint trustees as the “successor” to the First Holy Saint of Sikhism. In Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 the Court of Appeal agreed to strike out the claim, on the grounds that the court was

“…being asked to pronounce on matters of religious doctrine and practice. They relate to the validity of the disputed claims of the 9th claimant, who lives outside the UK, to be the holy and spiritual leader of the Nirmal Sikhs and the successor to the First Holy Saint. How can the court possibly decide that kind of question with any degree of confidence or credibility?”.

Subsequently, in Shergill v Khaira [2012] EWCA Civ 1582, the Court refused permission to appeal its decision on the basis that to do so would involve adjudicating on non-justiciable matters of religious faith, doctrine or practice. However, in doing so it acknowledged that it was ultimately for the Supreme Court itself to decide whether or not it was an issue on which it should hear further argument. The UKSC gave leave; and judgment was handed down today.

Judgment of the Supreme Court

In Shergill & Ors v Khaira & Ors [2014] UKSC 33 the Supreme Court unanimously allowed the appeal.

On the issue of the justiciability or otherwise of matters of religious doctrine, the Court noted at para 43 the dictum of Lord Bingham in R (Gentle) v Prime Minister [2008] 1 AC 1356 para 8 to the effect that though there were issues which judicial tribunals had traditionally been very reluctant to entertain because they recognised their limitations as suitable bodies to resolve them, that

“… 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”.

The Court noted that in both England and Scotland the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites:

“But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust” [para 45]”.

 The Court set out the criteria for intervention and non-intervention like this:

“The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association’s governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law” [para 46: emphasis added].

Given that the governing body of a religious voluntary association obtained its powers over its members by contract, it had to act within those powers; and if, for example, it sought a union with another religious body ultra vires its constitution, a member of the community could invoke the jurisdiction of the courts to restrain it [para 47]. Similar considerations applied where members of a religious association who were dismissed or otherwise disciplined claimed that the association had acted ultra vires or in breach of fair procedure:

“The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association: Dawkins v Antrobus [1879] 17 Ch D 615. Its role is more modest: it keeps the parties to their contract” [para 48].

Their Lordships cited a series of authorities (most of them Scots) on disputes over the control of property held on trusts for religious purposes: most notably Craigdallie v Aikman (1813) 1 PC Dow 1Attorney General v Pearson (1817) 36 ER 136 and General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515. They also noted that in a recent dispute over religious property, Smith v Morrison [2011] ScotCS CSIH 52, Lord Drummond Young had cited with approval (at para 118) the opinion of Lord President Cooper in the unreported case of Mackay v Macleod (10 January 1952):

“In such a case it is the duty of the Court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the Church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence” [para 52: emphasis in the original].

They concluded that

“[t]his clear line of authority contradicts the idea that a court can treat a religious dispute as non-justiciable where the determination of the dispute is necessary in order to decide a matter of disputed legal right. Again, as Lord Davey said in Free Church of Scotland v Overtoun (at pp 644-645) the civil courts do not have the right ‘to discuss the truth or reasonableness of any of the doctrines of [a] religious association’. He stated: ‘The more humble, but not useless, function of the civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed’.” [para 53].

In conclusion, unless the parties could resolve their differences, the court might have to adjudicate upon matters of religious doctrine and practice in order to determine who were the trustees entitled to administer the trusts [para 59].

Discussion

The Court seemed to be holding to the view that disputes purely about doctrine or liturgy were non-justiciable but that that restriction did not apply in disputes as to whether or not the trustees of a particular trust were adhering to the terms of the trust deed. That was the crux of the matter in Free Church of Scotland v Overtoun, when those opposed to the union between the Free Church and the United Presbyterians won in the House of Lords because the majority were held to have departed from the Establishment Principle and, therefore, to have departed from the terms of the trust.

What the judgment does not do, it seems to me, is to suggest that the courts will now start adjudicating on the truth or falsity of religious doctrines per se, in a vacuum. It may be, however, that this judgment has shifted the boundary slightly and enlarged the circumstances in which the courts will feel able to intervene.

Cite this article as: Frank Cranmer, "Is religious doctrine justiciable? Up to a point, yes: Shergill v Khaira" in Law & Religion UK, 11 June 2014, http://www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-to-a-point-yes-khaira-v-shergill/

See also David Hart: Supreme Court reduces religious no-go area for courts

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