Do the UK Courts “Do Religion”?

Friday 15 February 2013

This year will be busy for the Commercial Dispute Resolution Department, not least because of a case that is heading to the Supreme Court which will provide a ruling important to all religious charitable institutions and religious institutions which have a Supreme Head.

The case relates to the Birmingham and High Wycombe Gurdwaras (Sikh Temples) and indirectly affects the Bradford Gurdwara.  Specifically, the case concerns the power to appoint and remove Trustees of those Gurdwaras and the associated powers of governance conferred by the Constitution of the Charity.

A dispute has arisen over the validity of our client, the Third Holy Saint’s, appointment and his subsequent directions leading to a dispute over the control of the Charity’s assets. The Third Holy Saint is joined by eight other claimants who pursue declarations and injunctions in order to regain their control and Trusteeship over the Birmingham and High Wycombe Gurdwaras from the defendants.

On 14 June 2011 His Honour Judge Cooke sitting at the High Court in Birmingham dismissed an application by the defendants to strike out the proceedings on the grounds of non justiciability (the Court’s ability to adjudicate a dispute, namely the Court’s ability to adjudicate on issues of religious doctrine, belief and practice as the Courts in the UK are secular and do not concern themselves with such issues).  That decision was appealed to the Court of Appeal who handed down a Judgment to the effect that the Appeal would be allowed and the action be permanently stayed as the proceedings raised non justiciable issues of religious belief, doctrine or practice.

On 29 October 2012 we filed an Appeal to the Supreme Court on behalf of the claimants. The Supreme Court has been requested to consider whether the Court of Appeal were correct in deciding that the action should be stayed by reason that it raised the non justiciable issues of religious doctrine, belief and practice.

The Appeal raises an issue of general public importance, namely to determine the circumstances in which proceedings relating to a religious institution, including a charitable institution to establish the advancement of religion, may properly be stayed or dismissed in reliance on assertions that the proceedings raised non justiciable issues of religious belief, doctrine or practice. The same could apply to all sorts of other organisations: mosques, synagogues or temples (see this link).

If the Court of Appeal is correct in its approach then this has the ramification that those in possession of religious Trust property may seek to remain in possession, and it may in fact encourage others to take possession of religious Trust property knowing that the Courts will not intervene or provide any redress.

The Court of Appeal decision as it stands has the impact of denying the right of access to justice for any party in such a situation and the Court of Appeal has therefore reached a regrettable legal conclusion and the Supreme Court is invited to consider whether that is the true state of the law as it is in this jurisdiction.

The law as it stands also clearly impacts on the religious rights and freedoms of a minority group of worshippers and which is also capable of breaching their human rights and freedom of expression.

Permission to Appeal was granted by the Supreme Court on 4^th February 2013, and a hearing date is now awaited. The Appellants have intimated that in the event that the Supreme Court dismisses the Appeal then the Appellants intend to Petition the European Courts of Human Rights in Strasbourg.