On the courts not “doing religion”

A recent Court of Appeal decision has confirmed when and why courts of law will refuse to adjudicate religious claims – on which Russell Sandberg has kindly provided this guest post.

The claim in Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 concerned disputes about the trusteeship and governance of two Gurdwaras used by members of the Sikh community. The dispute centred upon whether the ninth claimant was entitled to exercise a power to remove and appoint trustees as the ‘successor’ of the First Holy Saint.  The defendants wanted the court to grant a permanent stay because the contested claim to be the successor turned on matters of religious faith, doctrine and practice, which would involve comparison of the doctrines of mainstream Sikhism and the Nimral Kuita institution.

The Court of Appeal allowed the defendant’s appeal holding that the High Court judge erred in treating the particular core issue in as one that is properly justiciable by the English Courts. Mummery LJ held that ‘the question of succession 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).

Mummery LJ’s judgment provides further guidance regarding what he referred to as the principle of non-justiciability.  This principle, also known as the doctrine of judicial abstention or the non-interference principle, states that the courts of the State are normally reluctant to become involved in adjudicating doctrinal disputes within religious groups other than the established Church of England. State courts will only exceptionally intervene to enforce the laws of a religious group where there is a financial interest and in relation to the disposal and administration of property: see R Sandberg, Law and Religion (Cambridge University Press 2011) 74-77.

The judgment in Kharira does not seem to alter this general position but it does provide further clarification and guidance about its application, in a similar way as the earlier and instructive High Court decision in HH Sant Baba Jeet Singh Maharaj v Eastern Media Group Ltd & Hardeep Singh [2010] EWHC (QB) 1294.  It is possible to extrapolate eight general points concerning principle of non-justiciability from Mummery LJ’s judgment:

[1] There is no general principle that ‘religious bodies or groups enjoy a spiritual independence or freedom that places them above, or exempts from, the law of the land, or that religion inhabits a “civil rights-free zone.”’ (para 25).

[2] The principle of non-justiciability means that the courts will ‘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).

[3] The principle also means that the courts will often, but not always, abstain from questions concerning validity and status: ‘The courts also exercise caution in adjudicating on the fitness or otherwise of a particular individual to carry out the spiritual duties of a religious office, although there are some employment rights cases in which jurisdiction has been exercised on the basis of the existence of a contract of employment and of statutory rights not to be unfairly dismissed or discriminated against on a prohibited ground’ (para 19).

[4] The principle of non-justiciability is applicable outside the law of libel. Unlike the High Court decision, the Court of Appeal did not seek to distinguish cases such as Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group Ltd which applied the principle in the context of libel law.

[5] The principle of non-justiciability applies to religious groups and institutions which are not established by law as part of the State. The ‘established constitutional position of the Church of England’ places it in a different position. (para 14).

[6] The principle of non- justiciability is concerned with the drawing of the line ‘between what can and cannot properly be decided by a secular municipal court in disputes relating to religious doctrine and practice, including internal governance’ (para 25).

[7] The drawing of the line between justiciable and non- justiciable actions ‘must be done with caution, especially in cases where the civil rights of the parties, such as property and contract, may be affected’ (para 26).

[8] The principle of non-justiciability does not apply where it is possible for the court to ‘adjudicate on aspects of religious disputes concerning civil rights and obligations capable of being determined by legal methodology’ (para 59).

There are two elements in play here. First, the principle of non-justiciability may not apply if the dispute concerns rights and obligations under civil law:  ‘There will inevitably be disputes with a religious aspect which, however controversial and profound to those involved, cannot exclude or limit the jurisdiction of the civil courts to determine civil rights’ (para 69). Mummery LJ recognised the ‘jurisdictional implications’ of the Free Church case General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515 and earlier cases that preceded it such as Craigdallie v Aikman (1813) 1 Dow 1.  These cases were justiciable since they were ‘all about civil property rights under trust law’. Unlike the present case, the Free Church case ‘was not about deciding the truth of the proposition that a particular person was a holy person and a spiritual leader equipped with fundamental powers affecting the internal governance of a body of believers’ (paras 61 and 63).

Second, the adjudication also needs to be capable of being determined by legal methodology.  For Mummery LJ, ‘non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method’ (para 70).  The principle of non-justiciability will only apply when the court is asked to answer questions which are ‘neither questions of law nor are they factual issues capable of proof in court by admissible evidence’ (para 5). Mummery LJ noted that the basis of the general principle of non- justiciability was that outlined by Lord Wilberforce in Buttes Gas and Oil v Hammer (No 3) [1982] AC 888 in which it was stated that the court should not adjudicate upon transactions between foreign sovereign States due to the absence of ‘judicial or manageable standards by which to judge these issues’ leading to a ‘judicial no-man’s land’ (at p.938B-C).  For Lord Wilberforce, the principle was not one of judicial discretion: it is ‘inherent in the very nature of the judicial process’ (para 15).

The principle of non-justiciability would therefore not apply where the court can answer the question by applying the standards of the group. Mummery LJ noted that the action would not have been stayed if it was possible to identify the ‘successor’ by reference to ‘judicial or manageable standards’ which were  objectively ascertainable from a ‘bond of union’ between the adherents of a religion (para 18).  This is presumably a reference to what is often referred to as the doctrine of consensual compact.  The fact that religious groups are treated legally as voluntary associations means that the rules and structures of voluntary associations are binding on assenting members. As Lord Kingsdown acknowledged in Long v Bishop of Cape Town (1863) 1 Moore NS Cases 461 members ‘may adopt rules for enforcing discipline within their body which will be binding on those who, expressly or by implication, have assented to them.’  As a result of the doctrine of consensual compact, where the secular courts do intervene they will adjudicate the matter by reference to the rules and regulations of the religious group. As Lord Cranworth held in Forbes v Eden (1867) LR 1 Sc & Div 568, where courts intervene with regard to the disposal and administration of property they ‘must necessarily take cognizance of … the rules of a religious association [which] prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building’ (at 584).  Mummery LJ confirmed that whether or not there are ‘judicial or manageable standards’ which are objectively ascertainable from a ‘bond of union’, against which the contentions of the parties can be judged, depends on the precise nature of the pleaded issues for the decision of the court (para 16).

Comment: The judgment in Khaira therefore establishes beyond doubt the existence of the principle of non-justiciability, as understood in the case law as interpreted by Counsel for the appellants (see para 24).  In this case, the proceedings were stayed because the court was ‘being asked to pronounce on matters of religious doctrine and practice’ which related to ‘the validity of the disputed claims of the 9th claimant’ (para 71).  However, the principle of non-justiciability does not mean that civil disputes should be stayed simply because they involve religious groups: ‘The courts do not decline to decide cases about civil rights, such as property and contract, or statutory rights, such as employment rights, just because there is a religious element’ (para 64).

Drawing the line in individual cases remains difficult and the guidance provided in Mummery LJ’s calm and considered judgment is to be welcomed. However, at times, the neatness of the Court of Appeal’s approach seems a little divorced from reality.  This is particularly true of Mummery LJ’s throwaway remark that ‘Decisions involving religion are made by the courts, some surprising, but none causing alarm or even rousing much public interest’ (para 64).  Readers of this blog may well beg to differ!