Scientology, religion and charity law: an analysis of R (Hodkin)

We have already noted, briefly, the unanimous decision of the Supreme Court in R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 to allow the appeal of Ms Louisa Hodkin against the refusal of the Registrar General of Births, Deaths and Marriages to record the Church of Scientology’s chapel in central London under section 2 of the Places of Worship Registration Act 1855. The decision has provoked a series of reactions ranging from the measured to the outraged. What follows is an attempt to explore some of the broader implications of the decision.

The facts

To recap very briefly, Ms Louisa Hodkin and her fiancé wish to get married in a religious service at the Church’s central London chapel but the Registrar General has refused to record it as a place of worship – a necessary prerequisite for registering it for the solemnisation of marriages under the Marriage Act 1949. In turn, registration under the 1949 Act enables the building to be used for marriage according to the “form and ceremony” chosen by the marrying couple. Registration also confers total exemption from non-domestic rates – in itself a matter of some controversy, though not an issue addressed by the UKSC.

In the Administrative Court (from which the appeal came direct) Ouseley J had held, albeit with some reluctance, that the Registrar General had been correct to conclude that she was bound by the Court of Appeal’s judgment in R v Registrar General, ex parte Segerdal [1970] 2 QB 697 and could not, therefore, register the chapel.

Segerdal

In Segerdal the Court of Appeal had taken a very traditionalist, Christian-centered attitude to what constitutes “worship”. Said Buckley LJ:

“Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession. Looking at the wedding ceremony, for instance, I can find nothing in the form of ceremony set out which would not be appropriate to a purely civil and non-religious ceremony such as is conducted in a register office”.

Lord Denning MR was prepared to admit exceptions to the Court’s implicit definition of “religion” but his view was still essentially theistic:

“There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation of 1855”.

The judgments

The Supreme Court allowed the appeal unanimously. The leading judgment was given by Lord Toulson, with Lord Wilson adding a concurring judgment on the issue of whether the Registrar General’s function in recording premises as “places of meeting for religious worship” was purely an administrative one or allowed for a an assessment of the facts.

The first substantive question to be answered was whether or not Scientology is properly to be regarded as a religion. The interpretation of “religious worship” in Segerdal had carried within it an implicitly theistic definition of “religion” (para 31). There had never been a universal definition of religion in English law and it was necessary for the 1855 Act to be interpreted in accordance with the contemporary understanding of “religion” (paras 32-34). Lord Toulson offered the following definition at para 57:

“… a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word ‘supernatural’ to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula”.

If Scientology was a religion but its chapel could not be registered under the 1855 Act because its services did not meet the test in Segerdal, Scientologists would be prevented from marrying anywhere in a form which involved use of their marriage service: either they could have a religious service in their chapel but that would not constitute a legal marriage; or they could have a civil marriage on other “approved premises” under section 26(1)(bb) of the Marriage Act 1949 but that could not include any form of religious service because of the prohibition in section 46B(4). In Lord Toulson’s view, therefore, Scientologists would be under a double disability not shared by atheists, agnostics or most religious groups:

“This would be illogical, discriminatory and unjust. When Parliament prohibited the use of any “religious service” on approved premises in section 46B(4), it can only have been on the assumption that any religious service of marriage could lawfully be held at a meeting place for religious services by registration under [the 1855 Act]” (para 63).

It might also be noted in passing that Lord Toulson’s definition teeters on the brink of including humanism (though not atheism) within its scope. And when the issue of humanist wedding celebrations came up during the Lords committee stage of the Marriage (Same Sex Couples) Bill, the minister in charge of the Bill, Baroness Stowell of Beeston, finally agreed to take the matter away for further consideration: see Lords Hansard 19 Jun 2013 c 311.

In his concurring judgment on the separate point of self-certification, Lord Wilson concluded that the Court of Appeal in Segerdal had been correct to rule that the function of the Registrar General was to record a place certified to her only if it was a place of religious worship, that she had the right to investigate whether or not a building was, in fact, a place of religious worship and that she had a duty not to record it if she concluded it was not such a place (para 68). In short, the system was not merely one of self-certification.

Comment

The first point to make is that (in my view at any rate) Segerdal was wrongly decided even by the standards of its time. Quakers, for example, have no fixed “liturgy” of any kind apart from the wording of the wedding vows themselves; so had Buckley LJ ever attended a Quaker marriage ceremony he might possibly have experienced little or nothing in the proceedings that would have appeared to him inappropriate to a purely civil wedding. Equally, once Lord Denning had allowed an exception for Buddhism to his general rule that “religion” involves “the worship of God” he had destroyed his own argument. He was no doubt entirely correct about “the meaning attached by those who framed this legislation of 1855”; but he was deciding the case in 1970 and (or so I would assert) the standards of 1855 were no longer relevant to the situation before him.

Secondly, however, just because the UKSC has agreed that Scientology is a religion for the purposes of the Places of Worship Registration Act 1855 does not mean that the Charity Commission or the OSCR will necessarily recognise Scientology as a charity. Recognition as a religious charity involves a two-stage test:

  1. is the organisation in question a trust “for the advancement of religion?”; and
  2. if the answer to the first question is “yes”,do its activities advance religion “for the public benefit”?

When the Church applied for registration on the previous occasion the CC refused to register it as a charity: see the Decision of the Charity Commissioners for England & Wales made on 17 November 1999. On that occasion, the Commissioners concluded:

  • that the Church of Scientology was not charitable as an organisation established for the advancement of religion because having regard to the relevant law and evidence Scientology was not a religion for the purposes of English charity law;

  • that even were the Church otherwise established for the advancement of religion, public benefit could not be presumed given the relative newness of Scientology and the public and judicial concern expressed about it; and
  • that the central practices of Scientology (auditing and training) were conducted in private rather than in public and were of their nature private rather than public activities: that fact, and the practice of requesting donations in advance of receipt of those services led the conclusion that any benefit flowing from Scientology as advanced by the Church was of a private rather than a public kind.

And though the UKSC concluded (rightly, in my view) that what the Church of Scientology does is religious, the Court said nothing whatsoever about whether or not the Church’s activities are charitable.

Thirdly, though from the point of view of an adherent a particular religion may be regarded as an objective phenomenon, for those who do not share the same beliefs it is essentially a subjective phenomenon in the minds of its followers. Or as Laws LJ put it in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880:

“[I]n the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs…” (paras 21 & 22).

To put it more bluntly, just because a particular religion appears barmy to you and me does not mean that it appears barmy to its adherents; conversely, however, just because a particular religion’s adherents believe it to be the truth does not make it so. From my own Unitarian/Quaker perspective, many teachings of many religions can appear slightly odd: “eternal life”, for example, is not a concept I can get my head round, nor can I imagine that the Deity is remotely fussed about the consumption of ham and cheese toasties. But it is quite possible that from an orthodox Anglican or Roman Catholic viewpoint my kind of doctrinally-minimalist Quakerism might not look much like a religion at all.

Traditionally, the courts have gone to great lengths to avoid doctrinal issues: see for example Khaira v Shergill [2012] EWCA Civ 893 and HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group Limited [2010] EWHC (QB) 1294. But whether they like it or not, the courts sometimes have to deal with the practical outworkings of religious belief and, given the inherent subjectivity of “religion”, it is hardly surprising that they would want to define “religion” in broad, non-theistic terms.

Finally, as noted previously, the BBC reported that local government minister Brandon Lewis was “very concerned” about the ruling and its implications for business rates and said that the DCLG would “review the court’s verdict and discuss this with our legal advisers before deciding the next steps” (though precisely what “next steps” are open to the DCLG is not at all clear). However, “it will remain the case that premises which are not genuinely open to the public will not qualify for tax relief”.

One cannot help wondering to what extent that last remark was influenced by the continuing dispute between the Hales Exclusive Brethren and the Charity Commission over the Commission’s decision to end recognition of the Preston Down Trust – which decision is currently the subject of an appeal which, we understand, is now on hold until 6 January 2014. A further consideration in the minds of DLCG officials might be the forthcoming appeal to Strasbourg by the Church of Jesus Christ of Latter-Day Saints against the refusal of the local Valuation Officer to give the LDS Temple in Preston exemption from business rates on the grounds that Temple worship is not “public worship” for the purposes of the 1855 Act: see Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 and Church of Jesus Christ of Latter-Day Saints v United Kingdom 7552/09 [2011] ECHR 733.

Frank Cranmer

Cite this article as: Frank Cranmer, "Scientology, religion and charity law: an analysis of R (Hodkin)" in Law & Religion UK, 17 December 2013, https://lawandreligionuk.com/2013/12/17/scientology-religion-and-charity-law-an-analysis-of-r-hodkin/

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4 thoughts on “Scientology, religion and charity law: an analysis of R (Hodkin)

  1. Scientology’s bona fides have been officially recognized by a number of governmental agencies and public authorities in the United Kingdom. These include: HM Customs and Excise, Inland Revenue (2001) and the ministry of defence (1996). http://goo.gl/WRG1fE

    In October of 1983, the Australian High Court ruled that Scientology is a religion and “[t]he conclusion that [the Church] is a religious institution entitled to the tax exemption is irresistible.” The High Court reached this conclusion on the basis of an evaluation of the definition of religion that encompassed the teachings of all faiths generally accorded religious status. This was an expansion of the previous definition of religion in English law that had restricted religiosity to a narrow Judeo-Christian concept and which excluded the majority of worshipers in the world. The High Court decision is now recognized as the seminal decision on the definition of religion and on tax exemption in Australia. In fact, the Inquiry into the Definition of Charities and Related Organizations conducted by the Australian government cites this case as “the most significant Australian authority on the question of what constitutes a religion…. The High Court found Scientology to be a religion. On the question of the current approach to the meaning of religion, the Scientology case provides the best elucidation….” This case is recognized internationally as a leading case on religion. In February 2005, the English Lords of Appeal issued a judgment in Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others in which the Court referred to the Australian High Court Scientology decision as “illuminating” on the issue of the definition of religion, noting that “the trend of authority (unsurprisingly in an age of increasingly multi-cultural societies and increasing respect for human rights) is towards a “newer, more expansive, reading” of religion (Wilson and Deane JJ in the Church of the New Faith case [Church of Scientology case] at p174, commenting on a similar trend in United States jurisprudence)”

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