No religion in court please

31 January 2011 by Adam Wagner

Shergill v Purewal & Anor [2010] EWHC 3610 (QB) (15 December 2010) – Read judgment

The defendants asked the court to stay the action on the basis that the claims related to points of religious principle, and as such could not properly be decided in a court. It is a defence to a libel action if the claims complained of can be shown to be true (the justification defence). However, courts have been reluctant to rule on such issues if they are essentially points of religious doctrine rather than simple factual matters.

The principle was examined in a related recent case where Mr Justice Eady in the high court stayed a claim brought against Hardeep Singh, a journalist (not to be confused with Hardeep Singh Kohli),  by Jeet Singh himself, relating to an article Singh wrote in the UK-based Sikh Times in which he called Jeet Singh an “accused cult leader” and an “impostor“.

In that case, the judge relied on the principle explained by Mr Justice Munby in Sulaiman v Juffali [2002] 1 FLR 479, that

Religion … is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.

Since the central issues to the case could not “be divorced from questions of Sikh doctrine and practice“, the judge effectively threw it out by staying it indefinitely. The case is currently before the court of appeal, but only on very limited grounds, and not in relation to whether the allegations were about religious doctrine.

Sir Charles Gray made a similar ruling in Shergill’s case. The facts could not be separated from the questions of religious doctrine:

it is open to a defendant in a libel action to justify words of which the claimant complains in any meaning which those words are reasonably capable of bearing. In my judgment, it would not be possible to hive off or divorce the issue of the legitimacy or otherwise of the claims that Baba Jeet is the successor to the sainthood. To attempt to do so would be unjust to the defendants. It appears to me to be fundamental to their case on justification that the claims of Baba Jeet to be the true leader and owner of the Gurduwaras are unjustified. (para 34)

The claim was therefore stayed, which means that it has effectively been struck out, unless the claimant successfully appeals.

No religion please, sometimes

Two issues arise from this judgment. First, in the particular case, did Sir Charles Gray go too far in staying the entire claim? As the Inforrm blog points out, not all of the articles complained of were straightforwardly about religious doctrine:

although the background was religious, there were also allegations that the claimant was a party to “conspiracies to provoke violence”. It is arguable that the decision goes too far, and breaches the claimant’s right to access to court under Article 6 of the European Convention on Human Rights.

The second question arising is whether the courts are doing enough, or indeed too much, to exclude matters of religious doctrine. It seems right that courts, which are secular, should never make a ruling which privileges one religion over another. But the devil is in the detail. It is not always possible to say conclusively whether an issue is one of religious doctrine or not.

And whilst courts may seek not to mediate between religions, judges are regularly ruling that secular principles – for example non-discrimination – should trump some religious beliefs. A recent example is the Cornish hotel gay discrimination case, where the hotel’s Christian owners sought unsuccessfully to prevent two gay men from sharing a room. In another, a Christian charity was prevented from restricting its adoption service to heterosexuals. And in the important Jewish Free School case, the Supreme Court privileged anti-discrimination rules over Jewish religious doctrine.

So whilst the courts may seek to avoid ruling on religious doctrine, they are in fact regularly confronted with issues which are unavoidably linked to religious principle, usually when they come into conflict with human rights or discrimination law. This is fair enough if one accepts the principle of a secular state which allows religious institutions to  do what they like so long as they do not unreasonably impinge on the rights of others. But this begs the question as to what is “unreasonable”.

Some have said that in light of an increasing number of cases involving religion, the courts could make themselves more sensitive to religious issues, perhaps through “faith courts” where judges would be specially trained. But this idea would do more harm than good, as I have argued recently.

Whilst the question of religion in courts is difficult, it by no means new. It has often been central to the difficult balance maintained by liberal secular democracies over history. It will continue to be controversial, and the courts must be sensitive whilst also maintaining the standards of discrimination and human rights law, which, it should be remembered, also protects freedom of religious expression. It will not always be easy to say whether a point of religious doctrine is central to a case. But it a worthwhile aim to try to steer clear when possible.

Update, 28 February 2011 – Lord Justice Munby in the Administrative court has approved the policy of a local council which excluded a religious Christian couple from becoming foster parents. The council considered that their unfavourable views on homosexuality made them unsuitable for the role. The judgment makes very interesting reading: See Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin)- our post to follow.

Update, 2 March 2011 – The Hardeep Singh libel case has been thrown out of court, following Jeet Singh’s failure to pay “security for costs” of £250,000 into court. This is a mechanism by which parties to a court case can be protected against opponents who look unlikely to pay out costs should they lose. The order against Singh lapsed today, which means that the case has ended. Singh says he has payed out £90,000 which he will now have to recoup through the Indian courts.

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