Supreme Court reduces religious no-go area for courts

400px-uk_supreme_court_badgeKhaira v. Shergill [2014] UKSC 33, 11 June 2014   read judgment

Adam Wagner assisted two of the respondents in this case on behalf of Bindmans, solicitors, but was not involved in the writing of this post.

 

The Supreme Court has just reversed a decision of the Court of Appeal (see my previous post here) that a dispute about the trust deeds of two Sikh religious charities was non-justiciable and so could not and should not be decided by the Courts. By contrast, the SC said that two initial issues concerning the meaning of trust deeds were justiciable, and, because of this, further issues which did raise religious issues had to be determined by the courts.

The wider interest of the case is its tackling of this tricky concept of non-justiciability.

The dispute is within a Sikh sect associated with three Gurdwaras or Sikh temples in Bradford, Birmingham and High Wycombe. It raised questions arising out of the trusts on which the Gurdwaras are held.

As the Court summarised things, the first issue was whether the respondents are right in suggesting that a 1991 trust deed was invalid if and in so far as it purported to confer the power to appoint and dismiss trustees on anyone other than the First Holy Saint. The First Holy Saint had succeeded as the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal in 1971, and died in 2001, so after the trust deeds in question had been entered into.

The second issue was whether the reference to the “successor” of the First Holy Saint in the 1991 deed is to be read as limited to Sant Harbhajan Ji, i.e. the immediate successor to the First Holy Saint, as the respondents contend, or whether it extended to each subsequent successor, as the appellants argue.

The Supreme Court had no difficulty in deciding that the first two issues were justiciable. The first turned solely on the English law of trusts, and could not conceivably involve an unjusticiable issue. The second issue turns on a question of interpretation of the 1991 deed, and, as it pointed out

it would be more than strange if a pure question of interpretation of a trust deed executed in England relating to property in England and clearly intended to be governed by English law, could not be resolved by an English court.

The Supreme Court then turned to the first two issues and decided that there was no easy answer on the merits. The claim could not be summarily determined, and should go to trial.

Non-justiciability

What then about the third and fourth issues which did raise religious issues? The third was whether Sant Jeet Singh is indeed the third Holy Saint, and the fourth whether the doctrines to which he and the appellants subscribe and/or his personal qualities comply with the religious aims and purposes underlying the 1991 deed.

The CA had held that both of these were unjusticiable.

The Supreme Court disagreed.

It said that Mummery LJ had misunderstood the leading case in this area, Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888. Buttes Gas arose out of an action for slander whose real object was to obtain a decision of the English court about the boundary between the territory of three Gulf states, a question upon which the validity of the parties’ off-shore drilling rights depended. The House of Lords held that this issue was non-justiciable, and struck out the proceedings. The dispute arose out of the way in which the Gulf states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force in a manner adverse to the interests of Occidental Petroleum. Occidental wished to obtain a judicial decision that the settlement had been the result of an unlawful conspiracy.

As the Supreme Court summarised Buttes

This involved assessing decisions and acts of sovereign states which had not been governed by law but by power politics. It is difficult to imagine that such a conclusion could have been reached in any other context than the political acts of sovereign states, for the acts of private parties, however political, are subject to law.

A number of rules of English law may result in an English court being unable to decide a disputed issue on its merits, such as state immunity (see my recent post here on the Saudi Prince ), the act of state doctrine (conferring immunity from liability on certain persons in respect of certain acts), or because the UK does not enforce foreign penal, revenue or public laws.

As the Supreme Court helpfully explained it

Properly speaking, the term non-justiciability refers to something different. It refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject-matter.

Such unsuitable issues fell into two categories.

The first category is where the issue is beyond the constitutional competence of the courts under the principle of separation of powers, with the typical examples being the non-justiciability of certain transactions of foreign states (so Buttes) and of proceedings in Parliament. These are rare, and rightly so, for they may result in a denial of justice which could only exceptionally be justified either at common law or under article 6 of the Human Rights Convention. But once in such cases “the forbidden area is identified”, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other unquestionably justiciable issue.

The basis of the second category of non-justiciable cases, relevant to the current dispute, is quite different. It comprises claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law. Examples include domestic disputes; transactions not intended by the participants to affect their legal relations; and issues of international law which engage no private right of the claimant or reviewable question of public law. By contrast with the first category

Some issues might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable. The best-known examples are in the domain of public law. Thus, when the court declines to adjudicate on the international acts of foreign sovereign states or to review the exercise of the Crown’s prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the citizen is engaged whether in public or private law.

But the court does adjudicate in these latter cases if, for instance, a justiciable legitimate expectation or a Convention right depends on it.

The Supreme Court derived assistance from Bruker v Marcovitz (judgments here), where the Supreme Court of Canada had to deal with very similar questions in the context of religious beliefs. 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 (contrary to their separation agreement). A get would have enabled her to contract a second marriage which would be lawful as a matter of Jewish religious law. The Court of Appeal decided that the claim was non-justiciable. The Canadian Supreme Court disagreed.  Whilst the courts should avoid determining the content of a subjective understanding of religious requirement, custom or ritual, they should give

 effect to the civil consequences of religious acts. So, while a court could not enforce the husband’s religious obligations as such, their religious nature was consistent with their being enforced as a civil contract.

Whilst domestic courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites, the court addresses questions of religious belief and practice where it is asked to enforce the contractual rights of members of a religious community against other members or its governing body or to ensure that trust property is used for the purposes of the trust.

So, for instance, members of a religious association who are dismissed may invoke the jurisdiction of the civil courts if the association acts unlawfully or breaches in a fundamental way the rules of fair procedure. The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure may be a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute:

Its role is more modest: it keeps the parties to their contract.

Similar rules applies to trusts. This may involve, in the case of a schism with disputed trust property,  the civil courts ascertaining the foundational and essential tenets of a faith in order to determine entitlement. And, approving earlier dicta, whilst the civil courts do not have the right to discuss the truth or reasonableness of religious doctrines,

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 Supreme Court thus concluded, after considering various Scottish cases involving rival Presbyterian sects, that

This clear line of authority contradicts the idea that a court can treat a religious dispute as non-justiciable where the determination of the dispute is necessary in order to decide a matter of disputed legal right.

And this view was supported by case law involving other religious disputes involving Shia Muslims and Hindus.

Conclusion

The key to this decision is the distinction drawn between the two categories of non-justiciability. The first is absolute. Once in the territory, the claim cannot proceed. The second, which includes religious disputes, depends whether prior disputes arise which the courts cannot simply shirk – whether contractual or about trust property. And if in the latter case, this involves a religious issue, the courts (like it or not) simply have to decide it.

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