Law and religion round-up – 6th August

Questioning judges’ religious objectivity?

Alleged judicial Islamophobia was an issue in Farid el Diwany v Solicitors Regulation Authority [2023] EWCA Civ 888. Mr el Diwany sought leave to reopen the Court of Appeal’s refusal to grant him permission to appeal against two orders, in one of which Saini J dismissed his appeal from a decision of the Solicitors’ Disciplinary Tribunal to strike him off the Roll. Noting that Mr el Diwany appeared to be alleging Islamophobia on the part of the lower courts, Sir Geoffrey Vos MR pointed out at [52] that “The proper role of judges is to decide the issue or issues before them. They are not required actively to call out religious abuse, or indeed inappropriate behaviour of any kind, nor to make any other comment about it unless it is part of the essential reasoning for their decision”.


“[I]t is wholly unacceptable to seek to challenge a decision of a judge on grounds of bias (actual or apparent) simply because they do not actively condemn inappropriate action, or more generally because they follow, or may follow, a different religion from that of the applicant. As the court said in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at [25]:

‘We cannot … conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.

The fair-minded observer will appreciate that behind this is the fundamental obligation on judges to act with impartiality’.” [54: emphasis added].

Charity Commission: updated guidance for trustees on investment policy

The Charity Commission has updated its guidance on charities and investments, following its consultation. The updated guidance reflects the judgment of the Chancery Division in Butler-Sloss & Ors v The Charity Commission for England and Wales & Anor [2022] EWHC 974 (Ch) (noted here), in which Michael Green J held at [78] that:

  • “[W]here trustees are of the reasonable view that particular investments or classes of investments potentially conflict with the charitable purposes, the trustees have a discretion as to whether to exclude such investments and they should exercise that discretion by reasonably balancing all relevant factors including, in particular, the likelihood and seriousness of the potential conflict and the likelihood and seriousness of any potential financial effect from the exclusion of such investments.
  • In considering the financial effect of making or excluding certain investments, the trustees can take into account the risk of losing support from donors and damage to the reputation of the charity generally and in particular among its beneficiaries.
  • However, trustees need to be careful in relation to making decisions as to investments on purely moral grounds, recognising that among the charity’s supporters and beneficiaries there may be differing legitimate moral views on certain issues.”

The Commission has dropped references to “ethical investment”. In addition, HMRC has updated its guidance on approved charitable investments and loans.

Kirpans in Queensland

On Tuesday, in Athwal v State of Queensland  [2023] QCA 156, the Supreme Court of Queensland made a declaration that s 51(5) (Possession of a knife in a public place or a school) of Queensland’s Weapons Act 1990 was inconsistent with s 10 of the Commonwealth’s Racial Discrimination Act 1975 and therefore unconstitutional under s 109 of the Australian Constitution.

The presenting issue was the obligation on initiated Sikhs

“at all times to wear or possess the five articles of faith, which collectively symbolise that the person has dedicated themselves to the Sikh way of life. The five articles of faith are a kachera (a special undergarment), kanga (a wooden comb), kara (an iron band), keshas (unshorn hair) and a kirpan (a ceremonial sword)” [66].

The Court rejected the State Government’s arguments. We hope to post a full note later in the week.

Quick links

And finally…

On Thursday, we posted “Selling the family silver”: Re St Mary and All Saints Willingham in which the church was unsuccessful in its faculty application for the sale of a 16th-century chalice and paten by a known Cambridge Silversmith, Thomas Buttelland, and a 17th-century paten. In addition to ongoing financial pressures, the chancel roof is failing, and complete replacement is said to be required within five to ten years. Unfortunately, an earlier post-Reformation option is no longer available. The National Churches Trust explains:

“After the previous roof collapsed, it was rather ingeniously replaced by a complete roof that was brought in pieces, on carts, from the priory church at Barnwell, in Cambridge, which had been dismantled after the Dissolution. The ‘new’ roof differed slightly in size: there are telltale signs that it didn’t quite fit”.

One thought on “Law and religion round-up – 6th August

  1. Re. the el Diwany case, it is not made clear that he was struck off the Solicitors Roll due to having been convicted of criminal offences in Norway and also failing to notify The Law Society as to his Norwegian convictions when he applied to be registered with them. No religious element involved at all.

    On the more general matter of claimed religious bias, the problem of definition of this has been hampered, rather than advanced, by more recent attempts at defining anti-Semitism or Judeophobia, as well as Islamophobia.

    Fortunately, it seems more intelligent people have realised that trying to go down the rabbit hole of religious bias is no more sensible than in Alice in Wonderland.
    What next – Christophobia, Sikhophobia, Shintophobia or Hinduphobia?

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