Dismissing a minister of religion: Celestial Church of Christ

In a recent hearing in the Chancery Division,  the employment status of a minister of religion arose once again…

…in this case, coloured by a factional dispute within the congregation. The Court also addressed the interesting question of whether or not a charity could maintain an action in tort for passing-off, even though it was not engaged in trading.

Background

The facts in Celestial Church of Christ, Edward Street Parish (A Charity) v Lawson [2017] EWHC 97 (Ch) were as follows. The Celestial Church of Christ was founded by the Revd Samuel Oshoffa in the Republic of Benin in 1947 and incorporated in Nigeria in 1958; its present written constitution dates from 1980 [2]. Continue reading

Reforming Religious Courts: A Comparison of Two Bills

The recently-published Religion and Legal Pluralism, edited by Russell Sandberg, explores how religious laws are already accommodated under English law, particular issues that arise and their theoretical analyses that explore the extent to which religious legal systems should be recognised. In this post Russell explores the call for legal reform and two possible approaches.

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The last few years have seen much concern expressed about the functioning of religious courts – or, to be more precise, we have seen a fear of sharia. The hyperbolic reaction to the erudite lecture on “Religious and Civil Law in England” in February 2008 by the then Archbishop of Canterbury, Dr Rowan Williams, highlighted not only how controversial the subject was but also the extent of our ignorance.

Concerns about religious courts have arisen in many Western States and with increased frequency. The most recent example was in March 2015, when the Home Secretary Theresa May spoke of “examples of sharia law being used to discriminate against women” but then went on to concede that “we know we have a problem, but we do not yet know the full extent of the problem”, calling for an independent investigator to be appointed – which is yet to occur.

Baroness Cox’s Arbitration and Mediation Services (Equality) Bill

Baroness Cox has been one of the most persistent campaigners for reform. She first introduced her Arbitration and Mediation Services (Equality) Bill into the House of Lords in June 2011. And four years on, a slightly amended Bill has been tabled again for a first reading. Continue reading

Religious doctrine and justiciability: a view from California

St Mary of the Angels parish in Hollywood, Los Angeles, California  broke away from the Episcopal Church and, after various vicissitudes, became affiliated to the Anglican Church in America (the ACA, one of several North American “not-in-communion” Churches in the Anglican tradition). A majority of its members wanted the parish to pursue reunification with the Roman Catholic Church while others wanted to remain with the ACA. At one point during the dispute the ACA inhibited the rector, Father Kelley, from performing any ecclesiastical duties, ordered him to vacate the premises owned by St Mary’s and appointed a new rector. The new rector then removed several members of the elected Vestry and appointed new members in their place. Continue reading

Religion and law round up – 3rd August

It turned out to be a busier week than we’d anticipated, so we decided to post a round-up after all…

Choosing diocesan bishops in the C of E

Our week began with a long guest post by Peter Owen, a former member of General Synod and part of the teams that publish Thinking Anglicans and Anglicans Online, on the process of appointment to vacant sees. It’s a fairly complex process but, as one would expect from a member of the Liverpool Vacancy in See Committee at the time of the last two vacancies, it is both authoritative and a model of clarity.

International Religious Freedom Reports 2013

The US Department of State submitted its annual International Religious Freedom Report to Congress. The Report, submitted pursuant to the International Religious Freedom Act 1998, describes the status of religious freedom in every country individually and covers government policies that violate religious belief and practices of groups, religious denominations and individuals.

One would hope (though probably in vain) that it would make pretty uncomfortable reading for some regimes – but it’s a mine of information for students of law and religion.

Ireland and crucifixes 

On 28 July the Irish Times carried an interesting comment piece by Ronan McCrea of UCL, Kerry County Council crucifix a challenge to religious diversity, about the rather extraordinary decision of Kerry County Council to install a crucifix in its newly-refurbished council chamber. The instigator of the move was Councillor John-Joe Culloty, whose supporters reportedly argued that they were “tired of apologising” for their religion and passed a motion calling for the erection of the crucifix “in light of our Christian faith and the strong Christian values contained within our Constitution”.

Dr McCrea points out that the upshot of the Grand Chamber judgment in Lautsi & Ors v Italy [2011] ECHR 2412 is that no-one has the right not to be exposed to religious symbols with which they may disagree; and in Lautsi the GC held that the presence of the crucifix merely perpetuated a preexisting cultural tradition. However, he feels that Kerry County Council’s decision is quite different because it means that

“… the values of a particular faith would have predominance in an institution meant to make rules for all the people of Kerry. This has nothing to do with tradition or identity, but with the promotion of a particular faith by a State institution. State bodies should not promote Catholicism, Islam or atheism, but be committed to co-existence and equal respect for those of all faiths and none”.

To which there is nothing we can usefully add.

Property matters

We noted the on-going DECC consultation on hydraulic fracturing, the short inquiry by the House of Commons Justice Committee on the abolition of manorial rights and the Private Members’ Bill on the abolition of Chancel Repair Liability. The three are unconnected, as David’s post explains.

Same-sex marriage and conversion of civil partnerships

On 30 July the Lords held a short debate on the operation of the Marriage (Same Sex Couples) Act 2013 arising from an oral Question from Lord (Norman) Fowler (Con). It drifted into a discussion on the attitude of the Church of England to members of its clergy who enter into same-sex marriages.

Earlier in the week the Government withdrew the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations and the Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) (No. 2) Order 2014 after pressure from the Quakers, inter alia, who objected that the proposal would deny those who wished to convert their civil partnerships from having a proper wedding and a secular marriage certificate.

“Outing” gay bishops?

Paul Johnson, of the University of York, published an interesting piece on the ECHR Sexual Orientation Blogspot asking Do Church of England ‘gay bishops’ have a human right not to be ‘outed’? in response to the news that Peter Tatchell is “considering outing gay C of E bishops who discipline gay clergy who marry”. You can read our take on it here.

The ‘Ex-gay’ London bus advert ban

On a somewhat similar theme, we noted that after the further hearing. In R (Core Issues Trust Ltd) v Transport for London & Anor [2014] EWHC 2628 (Admin) Lang J had dismissed the claim, on the grounds that Boris Johnson, as Mayor, had not exercised his statutory power to issue any written instructions or directions to TfL on the advertisement and TfL made the decision not to run the advertisements. Though Mr Johnson had communicated a strongly-expressed opinion that the advertisements were offensive and should not appear on London buses he was not motivated by the improper purpose of seeking to advance his Mayoral election campaign” [para 143].

Are matters of doctrine justiciable?

We noted the recent Californian decision in Rector, Wardens and Vestrymen of St Mary of the Angels’ Parish v Anglican Church in America (CA App., July 23, 2014), in which the State Court of Appeal had to decide to what extent a dispute over control of a “continuing Anglican” parish could be resolved “resolved without reference to religious doctrine, and can instead be resolved by application of neutral principles of law”. The court decided that it could  very much in line with the recent Supreme Court judgment in Shergill & Ors v Khaira & Ors [2014] UKSC 33.

Mba v London Borough of Merton UKSC 2014/0031

It has only just come to our notice that leave to appeal to the Supreme Court was refused on 10 July on the basis that “the application does not raise an arguable point of law which ought to be considered by the Supreme Court at this time bearing in mind the facts as found by the Tribunal”.

Quick links

A few links to recent items that readers may wish to follow up:

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

Britain’s got religious tribunals

A guest post from Russell Sandberg, of the Centre for Law & Religion at Cardiff Law School.

The latest article resulting from the Cardiff University study on Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts has just been published in the Oxford Journal of Legal Studies. The article, “Britain’s Religious Tribunals: ‘Joint Governance’ in Practice” returns to the original lecture by the then Archbishop of Canterbury, Rowan Williams, on civil law and religious law in England to suggest an alternative way forward.

In that now infamous lecture, Williams drew upon the work of the Canadian scholar Ayelet Shachar, endorsing her concept of “transformative accommodation”. The article suggests that the focus upon transformative accommodation by the Archbishop and subsequent commentators is unfortunate, given that Shachar actually proposes transformative accommodation as just one variant of what she refers to as “joint governance” – albeit her preferred variant.

The article revisits Shachar’s work in the context of the literature on multiculturalism and political theory to suggest that transformative accommodation is a red-herring.  It is argued that Shachar’s umbrella concept of joint governance is actually of most use. Moreover, the  other variants of joint governance which Shachar describes but discards can actually be developed in a way that could prove to be more useful than transformative accommodation.

To reach this conclusion, the article draws upon the empirical findings of the Cardiff University project. Funded by the AHRC/ESRC Religion and Society Programme, the one-year study investigated how three different religious tribunals in the UK (the London Beth Din of the United Synagogue, the Sharia Council of the Birmingham Central Mosque and the Roman Catholic National Tribunal for Wales) deal with divorces and marriage annulments. The research, led by Professor Gillian Douglas and a multidisciplinary team based at Cardiff, took the form of interviews with staff working in these tribunals, complemented by workshops, observation and analysis of statistics.

The article suggests that the empirical findings provide evidence of “joint governance” and underline the value of the variants that Shachar prematurely discards.

The article has been written by the project team: Dr Russell Sandberg, Professor Gillian Douglas, Professor Norman Doe, Dr Sophie Gilliat-Ray and Asma Khan. The citation is: (2013) 33(2) Oxford Journal of Legal Studies 263-291.

Religious tribunals in the United Kingdom and the United States

The Pew Research Center’s highly-respected Forum on Religion & Public Life has just produced an extremely interesting study of religious courts and tribunals: Applying God’s Law: Religious Courts and Mediation in the US. The study looks at how the tribunals of 15 religious groups – some of the major Christian denominations, Buddhism, Hinduism, Islam and Judaism – routinely decide internal matters and apply their religious laws. Each entry includes links to official documents and other resources.

The report points out that, far from being some kind of exotic rarity, religious courts are a very common phenomenon in the US and that, according to the calculations by the Canon Law Society of America, the Roman Catholic Church has nearly 200 diocesan tribunals handling an estimated 15,000 to 20,000 marriage annulments every year. Continue reading