Places of Worship: Mr Segerdal is vindicated
by Philip Jones
R v Registrar-General ex parte Hodkin (2013) UK Supreme Court 77, and R v Registrar-General ex parte Segerdal (1970) 1 All England Reports 1 (High Court) and 3 All England Reports 886 (Court of Appeal)
The Segerdal case, it will be recalled, concerned the registration of a chapel belonging to the Church of Scientology, under the Places of Worship Registration Act 1855. Mr Segerdal applied for judicial review of the Registrar’s refusal to register the chapel. His case is discussed in a separate blogpost, which appears below.
The Court of Appeal dismissed Mr Segerdal’s application for 2 reasons:
(1) under the 1855 Act, the Registrar ‘is not only entitled but bound to enquire whether the place mentioned in the certificate is indeed a place … for religious worship (1, p.6) and
(2) on the evidence, the Registrar had been ‘fully justified in refusing to register the chapel as a place of meeting for religious worship’ (3, p.10).
Then Ms Hodkin, another Scientologist, challenged the Registrar’s refusal to register her chapel. This time, the Supreme Court granted the application for judicial review, and ordered the Registrar to register the chapel.
In giving its decision on Ms Hodkin’s application, the Supreme Court overruled the Court of Appeal’s decision in Segerdal, though on point (2) only. It held that the Court of Appeal’s understanding of ‘religion’ and ‘religious worship’ had been too narrow. On the evidence of the Church of Scientology’s religious belief and practice, the Registrar was not justified in refusing to register the chapel. The Supreme Court observed that the language of the 1855 Act ‘showed an intentionally broad sweep’ concerning religious worship (para 56), and that the Registrar and the secular courts should not engage in ‘fine theological or liturgical niceties’ concerning the registration of a place of worship (cf. para 63). It was also influenced by the decision of an Australian court to the effect that Scientology was ‘properly to be described as a religion’ (para 40).
However, the Supreme Court did not overrule the Segerdal decision on point (1). On the contrary, Lord Wilson held that
‘in Segerdal, the Court of Appeal was correct to rule that the function of the Registrar-General is to record a place certified to her only if it is a place of religious worship. It follows that she has the right to investigate whether a place is one of religious worship and that, if she concludes that a place is not one of religious worship, then, subject to judicial review … she has a duty not to record it. Whether she chooses, in depth or at all, to investigate an assertion that a place certified to her is one of religious worship is a matter for her discretion’ (para 68).
His Lordship conceded that this conclusion was ‘not free from difficulty’ when measured against the provisions and wording of the 1855 Act (para 69). As he correctly observed, ‘there is no … express reference in [the 1855 Act] to the need for the [Registrar] to be ‘satisfied’ that a place is indeed one of religious worship before she records a certificate which so claims’ (para 77). He also acknowledged that the Registrar ‘is unlikely to have any particular expertise’ in deciding what is or is not ‘religion’ and ‘worship’.
Lord Wilson gave an interesting account of the legislative history of the 1855 Act. Though passed in the mid-19th century, it is descended from the Toleration Act 1688. In the wake of the Glorious Revolution, a limited, very limited, religious freedom was granted in England. Non-Anglican places of worship were required to be certified as such, otherwise the worshippers could be punished for attending it. Certification was thus a legal duty, breach of which attracted a legal sanction.
Attitudes changed in the 19th century. The practice of religion, even outside the Established Church, came to be seen as a good thing, to be encouraged. Non-Anglican places of worship were therefore granted privileges such as exemption from rates. The solemnisation of marriages was also permitted in such places.
Certification of a place of religious worship therefore ceased to be a duty backed by a sanction, and became instead a right which attracted privileges. This indicates the difficulty with the regime of self-certification that the 1855 Act, on its plain wording, appears to provide. If certification opens the door to valuable privileges, there is an obvious incentive to register a certificate that is either downright dishonest or based on an unacceptably broad definition of ‘religion’ or ‘religious worship’. Yet the certifier is a judge in his own cause.
Lord Wilson noted another difficulty with self-certification. The Marriage Act 1994, which was of course passed many years after Segerdal, permitted the solemnisation of marriage in secular places such as hotels. However, marriage in secular places is ‘hedged about by regulations’ (para 84), which do not apply to marriage in places of religious worship. The 1994 Act was passed on the assumption that the Court of Appeal’s interpretation of the 1855 Act in Segerdal was correct. If the interpretation was incorrect, hotels and other secular institutions might simply evade the burdensome regulations imposed by the 1994 Act by certifying themselves as places of religious worship under the 1855 Act.
The Supreme Court’s conclusion on self-certification therefore makes sense in policy terms. However, Lord Wilson’s analysis of the Registrar’s function is indeed ‘not free from difficulty’. The Registrar has a ‘duty’ not to record a certified place if she decides that it is not really a place of religious worship. However, in reaching her decision, she is apparently under no duty to investigate a certificate, since investigation ‘is a matter for her discretion’. If she does investigate, the 1855 Act does not provide her with any expert assistance or other resources to do this.