Law and religion round-up – 9th July

Cake now off the Brexit menu…

…though not in the House of Lords for Pride 2017…

…but gluten-free is off the menu at Mass

Yesterday the BBC reported that the Vatican had ruled that the bread used in celebrations of the Eucharist must not be gluten-free. Continue reading

Pemberton v Inwood: a note

Background

Canon Jeremy Pemberton married his long-term partner, Laurence Cunnington in 2014. The Appendix to the Pastoral Guidance on Same Sex Marriage sets out the current position of the Church of England adopted by the House of Bishops as follows:

“27.  The House is not … willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives. Continue reading

Hymns (and other things) to avoid?

The recent news that the Diocese of Chichester had settled a historic sexual abuse claim involving George Bell, bishop from 1929 until his death in October 1958, raises interesting questions about such matters as commemorating in the C of E Calendar someone who appears to have been a child abuser.

In this guest post, Michael Ainsworth muses on some of them…

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The Diocese of Chichester’s settlement to an unnamed child abuse victim, over 60 years ago, of Bishop George Bell raises the question not only of whether he should retain his place in the Anglican calendar on 3 October – which the Church of England Liturgical Commission has ‘parked’ for future consideration, meanwhile pointing out that this is an optional commemoration which no-one is obliged to keep – but more immediately, whether we should sing his hymn Christ is the King! O friends, rejoice, which many churches will have chosen for Christ the King Sunday as well as for other occasions. The hymn is fine, and much-loved – as was George Bell himself, until (and even now perhaps despite) these revelations: politically he was progressive and courageous, probably forfeiting promotion to Canterbury because of his principled pacifist stance. Peter Hitchens (who has his own agenda) notes in “Shameful slur on a Christian hero” [scroll down] that because no allegations were made until 37 years after Bell’s death no trial was possible or details made public; and while he has no doubt that the C of E has a lot of apologising to do, queries whether George Bell’s reputation is being too readily sacrificed to save the skin of the Church of England today. Continue reading

Christian Scholarship Beyond the Theological Guild: implications for law & religion?

Almost two years ago I posted what I described as “an entirely personal theological rant by a non-theologian” – Doctrine and law – servants or masters?  in which I mused about the seeming dissonances between what the Churches teach and what their adherents actually believe. On reflection, perhaps I was being slightly disingenuous: having trained as a reader in the C of E and written a thesis for the Archbishop of Canterbury’s Diploma in Theology, while I could certainly not be described as any kind of theologian in a professional sense I am not a complete theological illiterate. But I was reminded of that post when I came across an interesting and thoughtful article by Jonathan Chaplin, Director of the Cambridge-based Kirby Laing Institute for Christian Ethics, on the Fulcrum website [9 April]: “Christian Scholarship Beyond the Theological Guild”. 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

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

LDS President’s prosecution discontinued as abuse of process

Last week, Senior District Judge Riddle heard oral argument in the private prosecution of Thomas S Monson, President of the Church of Jesus Christ of Latter-day Saints. Yesterday he gave his ruling: the end of a story on which we first posted on 6 February.

The summons was issued at the request of Tom Phillips, a disaffected former Mormon who contended that asking members of the LDS Church to make financial contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006. Counsel for Monson, James Lewis QC and Neil Addison, argued that the statements complained of were matters of faith, not statements of fact, that the court could not legitimately rule on the veracity of religious beliefs and that the private prosecution was vexatious

In Thomas Phillips v Thomas Monson [2014] Westminster Magistrates Ct (20 March 2014) DJ Riddle decided that the summons should be withdrawn.

The issue of a summons is an ex parte proceeding after representations only from the applicant; and DJ Riddle explained that what he was hearing was not an appeal against the decision of DJ Roscoe (who had granted the initial summons) but a new hearing to be decided on the material placed before him. There were several elements to consider:

  • whether the offence was known to law and, if so, whether the essential ingredients of the offence were prima facie present;
  • whether the offence was “out of time”;
  • whether the court had jurisdiction; and
  • whether the informant had the necessary authority to prosecute.

In addition, the court had to consider whether the allegation was  vexatious.

As to the essential ingredients of the offence, DJ Riddle said that it had not been stated explicitly that Mr Monson had made the specific representations complained of. Moreover, even if he had done so,

“… the basis for the complaint that he made them dishonestly (or intending a gain or a loss) [is] too tenuous. It is not sufficient to found a criminal prosecution. I do not accept that the essential elements of the offence are present in the information as presented to me”.

He was satisfied that “the process of the court [was] being manipulated to provide a high-profile forum to attack the religious beliefs of others” and that the private prosecution was an abuse of process. Moreover:

“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 or 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”.

Comment

In our original post on the case we pointed out that in Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 (on which we are awaiting the Supreme Court’s decision on appeal) Mummery LJ had held that

“… the question …  is essentially a matter of professed subjective belief and faith on which secular municipal courts cannot possibly reach a decision, either as a matter of law or fact” [para 72]

and had stated that the courts would

“abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition” [para 19].

That, we understood, was settled law dating back at least as far as Lord Reid’s dictum in Gilmour v Coats [1949] AC 426 that

“No temporal court of law can determine the truth of any religious belief: it is not competent to investigate any such matter and it ought not to attempt to do so”.

The decisions of Magistrates Courts bind no-one: but had DJ Riddle’s ruling gone the other way it would have introduced an unwelcome and unhelpful degree of uncertainty to an area into which – in our view at least – the law is not competent to intrude. Religion, as Mummery LJ pointed out in Kharia, does not inhabit “a ‘civil rights-free zone’” [para 25]: nor should it. But discussions about the truth or falsity of doctrine are surely doomed to failure ab initio, simply because matters of belief and opinion are of their very nature unverifiable.