Doctrinal disputes? Don’t go there

For very good and understandable reasons, judges try to avoid getting embroiled in theological disputes between competing groups in the same religious organisation. Famously, in Williamson & Ors, R (on the application of) v Secretary of State for Education and Employment & Ors [2005] UKHL 15 Lord Walker of Gestingthorpe cast serious doubts on the practical feasibility of the cogency test in Campbell and Cosans v UK 7511/76; 7743/76 [1982] ECHR 1 when he said: “The court is not equipped to weigh the cogency, seriousness and coherence of theological doctrines. … Moreover, the requirement that an opinion should be ‘worthy of respect in a democratic society’ begs too many questions … [I]n matters of human rights the court should not show liberal tolerance only to tolerant liberals” (para 60).

The latest example of this reluctance comes from the Chancery Division in Rai & Ors v The Charity Commission for England and Wales [2012] EWHC 1111 (Ch), which involved a dispute between two groups of members in a Sikh gurdwara, one of which wanted to seek an injunction to restrain the activities of the other. Because their action constituted “charity proceedings” within the meaning of what was then s 33(2) Charities Act 1993, the claimants sought the Charity Commission’s authority (retrospectively) to pursue it. The Commission twice refused permission because it was satisfied that the matter could be settled by an internal resolution process or, failing that, by mediation. The Commission’s view was that the dispute was not disrupting the operations of the charity and, moreover, it could not determine the underlying doctrinal dispute.

A refusal by the Charity Commission to authorise charity proceedings is appealable not to the First-tier Tribunal (Charity) but to the High Court, where Norris J upheld the Commission’s refusal of leave, adjourned the permission claim and stayed the injunction proceedings in the hope that the parties might be able to resolve the matter by agreement. Doctrinal issues could not be settled by litigation and were, in any case, irrelevant to the proceedings (para 35).

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