UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

Can, and should a court refuse to determine issues of religion or religious belief in legal proceedings? The Supreme Court has ruled in a number of landmark cases involving religion before, notably in R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77, where a Scientology chapel was deemed recordable as a “place of meeting for religious worship” under the Places of Worship Registration Act 1855, and in the first case decided by the Supreme Court, R(E) v Governing Body of JFS [2009] UKSC 1, regarding the definition of ‘Jewish’ for the purposes of entry to a religious school. Both these judgments generated considerable press coverage when they were released, and it might be thought that the Shergill judgment would have provoked a similar reaction. However, perhaps because the context of the case involved a relatively dry issue of trust law the result did not attract much press attention. This is perhaps surprising given that the court concluded that in certain cases a court would have to decide issues of religious belief. But (and this is a vital caveat), only when a claimant asks the court to enforce private rights and obligations that depend upon religious issues. The judgment throws an interesting light on the concept of justiciability and what will fall within the purview of the court and why.

The case concerned a dispute within a Sikh sect over the administration of three Gurdwaras. The case raised two questions regarding the trusts under which the Gurdwaras were held. First, the extent to which it is open to trustees to alter, or restrict the terms of trusts upon which they hold property and secondly, the justicibility of religious issues. The Gurdwaras were held under a trust established in 1991 to administer them according to the teachings of the “first holy saint” (Sant Maharaj Baba Gian Sing Ji). However, difficulties arose when the first holy saint and then second holy saint (Sant Harbhajan Ji) died and there was a disagreement regarding the recognition of the third holy saint (Sant Jeet Singh), and the term “the saint and his successor” in clause 5 of the trust deed. The Supreme Court held that the were four main issues to be determined:

1) Whether, as the appellants contended, clause 5 is valid insofar as it accords the power to appoint and dismiss trustees on persons other than the first holy saint;
2) If the appellants are right on the first issue, whether the reference to the ‘successor’ of the first holy saint in clause 5 is to be read as limited to Sant Harbhajan Ji, the immediate successor to the first holy saint, or whether it extended to subsequent successors;
3) If the appellants are right on the first and second issues, whether Sant Jeet Singh is indeed successor to the first holy saint;
4) Whether Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on character grounds unfit to be the successor.

The Court found that the first two issues were matters of trust law and interpretation of the trust deed, and dependent upon interpreting the decision in Attorney General v Mathieson [1907] 2 Ch 383. However, the Court found that the issues were not resolvable at the interlocutory stage and it would be more appropriate to resolve the issues at trial.

With regard to the third and fourth issues, the Court overturned the decision of the Court of Appeal. In the Court of Appeal Mummery LJ agreed to strike out the claim based on Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888, which Mummery LJ took as authority for the fact that in the absence of objective judicial standards with which to decide an issue, a court must regard it as non-justiciable. However, the Supreme Court found that Mummery LJ has misinterpreted the decision in Buttes Gas. The decision in Buttes Gas had been non-justiciable because it was political – it concerned a decision about the boundary between the territory of three gulf states – not because there was a lack of objective judicial standards with which to decide it.

The Supreme Court outlined two categories of truly non-justiciable decisions. Decisions may be non-justiciable because the issue is beyond the constitutional competence of the court, Buttes Gas was in this category because it concerned the relationship between states. Cases concerning proceedings in Parliament also fall into this category. Once the forbidden area is identified, courts may not adjudicate on matters within it, even if it is necessary to decide some other issue that is justiciable.

The other category of cases includes those based on neither private rights or obligations, nor reviewable matters of public law. Such cases include domestic disputes, transactions not intended by the participants to affect their legal rights or issues of international law that engage no private right or reviewable public law issue. However, unlike the first category where the entire area is out of bounds, the court may resolve issues if it is necessary to decide another issue which is in itself justiciable. As Lord Bingham put it in R (Gentle) v Prime Minister [2008] 1 AC 1356 at [8] there are:

“issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This 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 cited as an example of this type of case the Canadian case of Bruker v Marcovitz [2007] 3 SCR 607, where a wife whose marriage had been dissolved by the courts of Quebec sued her ex-husband for damages for refusing to give her a get (a Jewish divorce). This would have enabled her to contract a second marriage, which would be lawful as a matter of Jewish religious law. The parties had agreed at the time of their separation to appear before the rabbinical court to obtain a get when their civil divorce became final. The Canadian Supreme Court found that while they “should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, ‘obligation’, precept, ‘commandment’, custom or ritual” – this did not prevent them from giving effect to the civil consequences of religious acts.

The distinction between a religious belief and its civil consequences is therefore key. While the courts will not adjudicate on the truths of religious beliefs or the validity of particular rites, where private rights and obligations depend of religious issues, the judge may have to determine such truths as are capable of objective assessment. Disputes about doctrine or liturgy are non-justiciable if that do not as a consequence engage civil rights or interest or reviewable questions of public law, but if they do, then they are justiciable. The courts therefore have jurisdiction to determine a dispute over the ownership and control of property held on trust for religious purposes.

The Court referenced a number of Scottish cases where it was held that in the event of a decision within a voluntary religious body, the property held of the purposes of the association would go to the part of the body that adhered to the fundamental religious principles, as identified in its articles of association. In such cases the court is not discussing the truth or reasonableness of any of the doctrines of the religious association, but as stated by Lord Davey in General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515 (1904 7 F (HL) 1):

“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.”

The third and fourth issues are therefore justiciable and the court might have to adjudicate on matters or religious doctrine and practice in order to resolve the dispute over the trust deed. Such issues might require determination of what the fundamental tenets of the First Holy saint, what are the steps required for someone to become a successor to the holy saint and whether the teachings and personal qualities of Sent Jeet Singh comply with the fundamental religious aims and purposes of the trust. Determining such issues is perhaps an unenviable task, but one that the court must undertake. The older cases, in particular the Scottish cases that go back to a line of authority from 1813, show that the courts have a long history of interpreting religious principles enclosed in deeds of trust for the purposes of deciding the division of property. While the number and type of religious groups the court may be called to adjudicate upon has multiplied, the principles remain the same.