Law and Religious Doctrine

by Philip Jones

‘the courts should not merely be religiously neutral: they should not enter into matters of religious doctrine at all.’

Editorial, Ecclesiastical Law Journal, vol 12, no.3, September 2010, p.264

This statement, coming as it does from the editor of a legal journal dedicated to ecclesiastical law, is frankly shocking, even if the ‘courts’ referred to are the secular courts only, rather than the ecclesiastical courts.

The function of the courts concerning Acts of Parliament and other legislation, also contracts, wills and trusts, is always the same.  It is to give effect to the intention of those who made them, i.e legislators, contracting parties, testators, founders or settlors.

It therefore follows that if a statute, contract or trust imports a religious doctrine into its provisions, the court may be obliged to examine that doctrine, in order to give effect to the statute, contract or trust.  Such examination will not involve any judgment of whether the doctrine is true or false (the courts have always recognised that they must be ‘neutral’ on this question), but it will involve a judgment about the intention of those who made the statute, contract or trust.

The Human Rights Act 1998 recognises the subject’s qualified right ‘to manifest his religion or belief in worship, teaching, practice and observance’ (schedule 1.1, Article 9).  The courts are required to protect this right against public authorities who would infringe it (ss.6 to 8).  It is hard to see how they can do this without first ascertaining the religious belief that is the subject of the right.  If the subject’s religious belief is not properly understood, there is no way of knowing whether or not the public authority has infringed the subject’s right.

Questions of religious belief may be factually complex.  However, courts routinely assess highly complex evidence.  Every day of the week judges with no medical qualifications assess medical evidence in personal injury and clinical negligence cases.  They assess evidence concerning construction engineering, intellectual property and foreign law.  It is a wholly unwarranted suggestion that religious doctrine is somehow uniquely difficult and impenetrable.

Modern Church trusts have been deliberately worded to avoid references to religious doctrine, in order to avoid a repetition of the famous (or infamous) Free Church case, which is discussed separately.  However, this does not justify the dogmatic assertion in the editorial.  Of course, the court must not imply a religious doctrine into a trust when this was not the settlor’s intention.  That would be incompatible with its function of giving effect to the settlor’s intention.  But that does not justify an a priori rule that the court will never investigate a religious doctrine in any circumstances. 

It must be acknowledged that strongly held religious beliefs have sometimes prompted very weak legal claims.  The obiter dicta emphasizing the limits of the court’s doctrinal responsibilities may reflect an understandable judicial impatience with such claims.

However, weak claims motivated by religious belief should still be treated exactly the same as other weak claims.  An evidentially weak claim (as distinct from an evidentially complex claim) will fail the standard of proof.  If a claim  is very badly formulated or discloses no reasonable cause of action, it can be struck out.  If a provision in a contract or trust is so vague or obscure that it is impossible to ascertain the intention behind it then it will fail for uncertainty.