ecclesiasticallaw

Ecclesiastical law

Category: Freedom to Worship

Places of Worship: Mr Segerdal is vindicated

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.

The Right to Worship

No parish or parishioner has a right to a parish church.  There is no rule of common law that a parish must have a church, or that a parish may not be constituted as such without a church.

S.31(4) of the Mission and Pastoral Measure 2011 follows earlier Measures in providing that a pastoral scheme may create a new parish even though it has no parish church.

However, s.43(1) of the Measure apparently obliges the bishop to provide a place of worship in every parish.  According to s.43(1), where a parish has no church, the bishop must license a building, or part of a building, for public worship.

According to s.43(2), where there is no parish church, the bishop may designate another church, or a building already licensed for worship, as the parish centre of worship (‘PCW’).  The PCW is then deemed to be a parish church.  A parish church may not itself be designated a PCW.  The wording of s.43(2) suggests that a PCW may be designated even if there is a parish church already.

S.41(5)(a) of the 2011 Measure alludes to the common law rights of parishioners in providing that, where a parish has more than one parish church, the parishioners have the same rights of worship in each.  However, it does not define these rights further. 

The rights of parishioners over their church (where there is at least one church) are described by Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976:

‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’. 

The case of Taylor v Timson (1888) 20 Queen’s Bench Division 671 is often cited in support of the right to worship in the parish church.  Master Taylor was a pupil at a ‘reformatory’, evidently a school for delinquent boys.  The boys were not welcome in the parish church.  Mr Timson, a churchwarden, forcibly prevented Taylor from entering the churchyard to attend divine service in the church.  Taylor sued Timson for assault.

The court held Mr Timson liable for assault, because he had no right to prevent Taylor from attending the church.  Taylor was a parishioner and therefore had a right to attend service.

However, the court went further than this.  It held that a churchwarden cannot lawfully prevent a person from attending service, even if he honestly believes that the church is full up, and even if the person is not a parishioner.

The reason for this is that a churchwarden ‘ha[s] no interest in the freehold of the churchyard or the church itself … such an act [of exclusion] … ought, if done at all, to be done by the clergyman’ (p.674).  The churchwarden’s authority is limited to the distribution of seats.  If the seats are all taken, the churchwarden has ‘[no] right to say that people shall not stand in the aisle’ (p.675).  The court declined to speculate what should happen if the church is overcrowded.

This is not a very satisfactory analysis.  First, it is a surprising assertion that only the freeholder of property, acting in person, is entitled to control entry to that property, and that no agent or custodian may do so on his behalf.

A difficulty would arise if the incumbent is not the freeholder of the church.  Presumably the non-delegable power to exclude then vests in the lay rector, but the lay rector may not be available.  This notion in turn conflicts with the judgment in Griffin v Dighton and Davis (1864) 122 English Reports 767, which makes clear that the lay rector’s freehold of the parish church is ‘naked and abstract’ with no right of possession.

It is also difficult to see how the right to allocate seats can, either in principle or practice, be separated from the right to control entry to the church.  If the churchwardens can decide where people should sit, they ought also to decide whether, or where, people may stand.  It is illogical to allow the churchwardens the former right, but deny them the latter.  It also effectively deprives the churchwardens of the ability to maintain order during service.  Someone might decide to stand in the pulpit, or at the altar, thus obstructing the service, yet the churchwardens would be powerless to restrain him.

There is plenty of authority for holding that the churchwardens’ function extends to the maintenance of order during divine service.  The allocation of seats is but one aspect of this function.  The symbol of the churchwarden’s office, the stave, alludes to the maintenance of order.  Canon 19 of 1603 required the churchwardens ‘not [to] suffer any idle persons to abide either in the churchyard or church-porch’.  Canon 28 required them to send non-parishioners back to their own churches.  Canon 60 requires them to repel unauthorised preachers.  Canon E1(4) now provides that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’. 

The parishioner’s common law right to attend service in the parish church is not incompatible with the churchwardens’ duty to maintain order.  The churchwardens are themselves parishioners, and one at least is elected by the parishioners.  For the practical reasons stated, the churchwardens’ duty is really necessary to give effect to the common law right.  Divine service must be orderly, and this requires somebody to keep order.

Of course, it is always possible that the churchwardens may abuse their power, wrongly excluding people they dislike on spurious grounds.  (This may well have been the case in Taylor).  In that event, the excluded parishioner has two possible remedies:

(1) he can complain to the bishop, whose officers the churchwardens are, and /or

(2) he may ask the secular court to enforce his right to worship.

(Master Taylor actually sought an injunction in this case, but the court declined to grant it.) 

However, neither of these remedies denies the churchwardens’ custodianship of the church under the incumbent.

The court in Taylor made the farfetched point that, if the churchwardens prevented a parishioner from attending service, that parishioner might be prosecuted in the ecclesiastical court for his non-attendance.  There was no possibility of such a prosecution by the 1880s, but, if there had been, the parishioner would have an obvious defence, that he presented himself at church but was refused admittance by the court’s own officers.

The case of Cole v Police Constable 443A (1936) 3 All England Reports 107 arose from an altercation in Westminster Abbey.  Mr Cole used to offer his services as a guide to visitors to the Abbey.  The Dean did not approve and gave orders that he be excluded.  Mr Cole persisted in plying his trade.  Police were called, and ejected him.  Mr Cole sued the police for assault.

Although Westminster Abbey is a royal peculiar, not a parish church, Mr Justice Goddard (later Lord Chief Justice Goddard) took advantage of the case to discuss parishioners’ rights over their church.  He doubted the view, suggested in Taylor v Timson, that the right to worship is correlative to the statutory duty to attend service that was imposed by the Acts of Uniformity after the Reformation.  Instead he concluded that

‘the parishioner’s right to attend his parish church must be of far more ancient origin than that [i.e the Acts of Uniformity], and may be described as a common law right.  The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for worship … the right of the parishioner to attend his church … depends, not upon the statute, but upon the wide and common law right’. 

This dictum supports the view that the origin of the parishioners’ common law right is proprietary.  Common law recognises that parishioners have a right of worship in their parish church, because the land and building were first given so that they might do this.  Common law therefore gives effect to the donor’s intention.

In an unpublished dissertation ‘Rights of Passage: The Basis of Lay Entitlement to the Occasional Offices’ (Cardiff University 2002), Jacqueline Humphries concludes that the legal rights of parishioners ‘recall [the Church of England] to its mission to the whole nation’ (p.93).  This may be so, but it would be more accurate to say that these legal rights are concerned, not exactly with the Church of England’s mission to the nation, so much as with its possession of a substantial amount of the nation’s property.

Only a parishioner has a common law right to attend the parish church.  Goddard J held in Cole that no non-parishioner has the right to attend.

Moreover, the right is limited to attendance at acts of public worship in the church.  The Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that ‘no person has a right to enter [the church] when it is not open for divine service’, except with permission of the incumbent and churchwardens.

Thus there is no right to be in the parish church for private prayer.  The regrettable modern practice of locking churches for almost all of the time is not unlawful.

Disorder, or ‘brawling’, in the church and churchyard was formerly punishable by the ecclesiastical courts, which usually imposed a short period of excommunication or suspension ab ingressu ecclesiae on the sinner.  This jurisdiction was abolished by the Ecclesiastical Courts Jurisdiction Act 1860.  Perhaps this encouraged the court in Taylor v Timson to take such a restrictive view of churchwardens’ powers of keeping order in church.  However, the 1860 Act only abolished the ecclesiastical power to punish disorder in church.  It did not abolish the churchwardens’ function of maintaining order. 

Since 1860, offences of ‘riotous, violent or indecent behaviour’ in places of worship and churchyards, and disturbance or molestation of preachers and ordained ministers when they are performing their duties therein, are triable in the magistrates court, which may impose a fine or term of imprisonment of up to two months (s.2 of the 1860 Act).

Law and Religious Doctrine

‘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.

Places of Worship: The Segerdal Case

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 California-based Church of Scientology wished to register an English chapel under the Places of Worship Registration Act 1855. 

The minister of the chapel, Mr Segerdal, provided the required certificate to the Registrar-General.  However, the Registrar refused to register the chapel.  He accepted that the scientologists met together in the chapel, but denied that they met there for the purpose of religious worship.

Mr Segerdal applied for judicial review of the Registrar’s decision.  He produced literature published by the Church of Scientology, in which it described itself as a ‘non-denominational’ religion with a creed containing two references to God.  The literature also referred to the holding of ‘church services’.

Mr Segerdal’s application was dismissed by the High Court, for two 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).

The courts’ point was that, if the Registrar did not inquire whether a place certified to him was indeed a place of worship, the register would become inaccurate and meaningless.  Hence they concluded that the Registrar’s function ‘is not merely ministerial’ (1, p.6).

Lord Denning expanded on this point in the Court of Appeal:

‘because of the extreme latitude given to the certifier … a mere attendant or occupier can[not] certify a place, when he may have little or no ground for his certificate, and yet call on the Registrar-General to record it … without enquiry.  That would lead to many abuses.  No, that cannot be’ (3, p.888).

The procedure of the 1855 Act must be clearly understood.  The Act provides that places of worship are certified to the Registrar, not by him.  It is the occupant, minister or other attendant of the place of worship (in this case, Mr Segerdal) who certifies it as such, not the Registrar.  If Parliament had intended to constitute the Registrar as the certifying authority, it would have provided that the occupant, minister etc should apply to, or petition, the Registrar to certify their chapel as a place of worship. 

The judgments in the case raise the suspicion that, although the courts did formally acknowledge that Mr Segerdal was the certifier, they nevertheless treated him as if he was a mere applicant for certification.  In effect they attributed to the Registrar the function that the Act conferred on Mr Segerdal. 

The question of certification drew an uncharacteristically snobbish remark from Lord Denning: ‘the certifier may be a lowly or ignorant person who is not capable of knowing what is a place of meeting for religious worship’ (3, p.889).  As a traditional Church of England man, he would have had little natural sympathy for a Californian cult.  His colleague, Lord Justice Winn, even hinted at a judicial prejudice against scientology, owning to ‘a possibly irrational, possibly ill-founded, but very definite opinion …’ (3, p.891). 

Yet, as Lord Denning himself observed (3, p.887), the purpose of the 1855 Act was to grant freedom of worship to all, regardless of social or educational background.

Freedom of worship demands that people, however lowly or ignorant, must be free to decide for themselves what religious worship is.  It is not much freedom if people can only worship according to a fashion that the secular state regards as worship.  The 1855 Act therefore provides for a regime of self-certification.

Moreover, the certifier, whatever his limitations, is better qualified than the Registrar to certify that his chapel or meeting place is indeed a place of religious worship.  He will be familiar with the place and with the activity that goes on there.  The Registrar is not.  The definition of ‘religious worship’ is a theological or sociological question.  What special qualifications or expertise does the Registrar possess to answer this question?  The 1855 Act does not provide that the Registrar should possess such qualifications, nor that he should take expert advice on the question.

S.8 of the 1855 Act empowers the Registrar to cancel a certificate.  However, this provision only applies to a place of worship that has previously been registered but ‘has wholly ceased to be used as such’.  Under s.8 the Registrar is merely required to determine whether or not religious worship still goes on at the registered place.  This is a simple question of fact, which is presumably ascertained by a letter to the last known occupant or minister of the place.  S.8 does not require the Registrar to judge whether a particular activity is or is not religious worship.

Lord Denning was, of course, correct that the procedure under the 1855 Act is open to abuse.  As he observed, registration under the 1855 Act confers exemption from rates and other privileges (3, p.887).  Like all statutes, the 1855 Act must not become an instrument of fraud, such as tax evasion, sham marriage or some other dishonesty. 

The Registrar must therefore be entitled to refuse to register a dishonest certificate.  In this case, however, there was no question of dishonesty.  Mr Segerdal genuinely believed that his chapel was a place of worship.

It is possible that the meaning of ‘religious worship’ was a less complex question in 1855 than it became in later years.  S.3 of the 1855 Act refers to ‘the religious worship of Protestant dissenters or other Protestants, or Roman Catholics, or persons professing the Jewish religion’.  Parliament in 1855 would have known nothing of Californian cults and oriental mysticism.

However, s.3 makes clear that the Act applies to ‘any other body or denomination of persons’.  It is not restricted to some ‘mainstream’ Judaeo-Christian tradition of worship.     

The courts suggested that ‘religious worship’ must involve ‘veneration to a being regarded as divine’ (1, p.7).  As Lord Denning recognised, this definition had implications for groups other than the Church of Scientology, which do not worship divine beings.  He cited the example of Buddhists (3, p.890).  Quakers and Unitarians (both well-known sects by 1855) might also find it rather hard to satisfy the definition.

It is arguable that the Registrar should refuse to register a certificate which, though not dishonest, is plainly wrong and misconceived in representing a particular place as a place of worship.  The reports of this case show that the courts examined the scientologists’ literature in detail and engaged in an erudite discussion of the meaning of the words ‘religion’, ‘worship’ and ‘prayer’. 

This depth of examination of the scientologists’ creeds and practice demonstrates that Mr Segerdal’s certificate was not plainly wrong and misconceived.  If it had been, a detailed, erudite discussion would not have been necessary.  

The High Court observed that ‘it is a matter of controversy whether scientology is a religion at all’ (1, 8).  Mr Segerdal must therefore have had arguable reasons for representing his chapel as a place of worship, even though those reasons were disputed.  Any doubt or controversy should have been resolved in favour of his certificate.   

It is therefore argued that, as the minister and certifier of the chapel, his certificate should have been accepted for registration.  That would have been consistent with both the wording and the purpose of the 1855 Act, which was to ensure freedom of worship by a process of self-certification.

Churches and Courts

Bentley v Anglican Synod of Diocese of New Westminster (2009) Supreme Court of British Columbia, Canada

This case concerned a dispute over the property of four parishes in the Anglican Church of Canada.  The parishes were incorporated and, qua corporations, were the legal owners of the property.  The claimants (including Bentley) were the vicars and lay ministers of the parishes, who were ex officio the trustees of the parish corporations.

The claimants and their congregations objected to the decision of their bishop and diocesan synod to authorise the blessing of homosexual relationships.  For this reason, they wished to secede from the diocese, while retaining control of the parish property. 

The legal argument for the claimants was that the parish property was held for ‘purposes consistent with historic, orthodox Anglican doctrine and practice’ (para 258).  The bishop and the synod had departed from these purposes, but the congregations of the four parishes continued to respect them.  Control of the parish property should therefore be turned over to the congregations.

This claim failed.  The court held that the parish property was not held for the purposes suggested by the claimants, or for any particular purposes.  Instead the property was held subject to the constitution of the Church of Canada.  Under the constitution, the parishes were not free to deal with their property as they pleased, but were subject to the control of the diocesan authority. 

Alternatively, the court held that, even if the property was not subject to the constitution, the court could not have implied a ‘purpose’ trust in the terms suggested by the claimants.  The concept of ‘historic, orthodox Anglican doctrine’ was too uncertain and subjective. 

Also, the evidence did not show that the congregations of the four parishes were ‘orthodox’, while the bishop and the synod were not.  Under the constitution, the definition of ‘Anglican doctrine’ was the responsibility of the Church’s General Synod, and the General Synod had not held that homosexual relationships were contrary to its doctrine. 

The claimants’ assertion that they represented ‘traditional’ Anglicanism was also undermined by statements from pan-Anglican organisations affirming the Canadian Church’s continuing membership of the Anglican Communion and deprecating the claimants’ own actions. 

Following the Bentley case, Professor Margaret Ogilvie reviewed the British and North American case law concerning disputes between members of the same Church in ‘Judicial Restraint and Neutral Principles’ Ecclesiastical Law Journal, May 2011, p.198.

The modern case law is still overshadowed by Free Church of Scotland v Lord Overtoun (1904) Appeal Cases 515, though that case itself followed a line of 19th century cases. 

The case arose when the Free Church decided to unite with another Church.  A small minority of Church members opposed this decision and refused to join the new Church.  They claimed that they alone now represented the ‘continuing’ Free Church.  They therefore claimed the exclusive right to the property settled on the Free Church in the early 19th century.  The House of Lords controversially upheld their claim, and has been criticised for this ever since.

Professor Ogilvie suggests that the Free Church case marked a turning-point in the approach of courts to disputes within Churches:

(1) the original approach was for the court to identify and enforce an ‘implied doctrinal trust’ of the Church’s property (in the Free Church case and before)

(2) the post-Free Church approach is for the court merely to review the decision of the Church authority, to ensure that it has acted within its constitutional powers (as in Bentley and other modern cases). (p.205)

She characterises (2) as the ‘neutral’ approach.

There is difficulty with this analysis.  The earlier case law (at least, the British case law) strongly emphasised the court’s religious neutrality in disputes between members of a Church.  Lord Chancellor Eldon said that ‘the court could not take notice of religious opinions … to decide whether they were right or wrong’ (Craigdallie v Aikman 3 English Reports 601 at 606).  His successor Lord Halsbury said ‘a court of law has nothing to do with the soundness or unsoundness of a particular doctrine’ (Free Church case, at 613).  The only limit to the court’s neutrality is that it must be satisfied that the religious doctrine is not unlawful.

The property of a voluntary Church is held on one or more trusts.  That was the case both in Free Church and in Bentley.  The courts’ function in relation to a contract or trust has never changed:  it is to give effect to the intention of the people who made it.  As Lord Eldon observed, if a trust provides for the removal of a trustee who changes his religious belief

 ‘if the question comes before this court, in the execution of a trust, whether the trustee has been properly removed [for religious reasons] … ex necessitate … the court [must] enquire, what was the religion and worship of the society … to ascertain whether or not the charge is substantiated …’ (Attorney-General v Pearson 36 English Reports 135 at 155).

In other words, if the trust imports a religious doctrine into its terms, the courts will have no choice but to declare what that doctrine is, in order to give effect to the settlor’s intention.

Thus the difficulty in the Free Church case was not caused by the House of Lords’ lack of ‘neutrality’, but by the intention of the donors of the Free Church’s property.  As Lord Halsbury observed, these gentlemen ‘left their claim, declaration and protest to stand for all time … as a profession of their faith’ (p.613).  The secular court was bound to give effect to this.

Law reform in the 20th century has made it easier for courts to vary trusts and so override antiquated provisions.  However, the difficulty in the Free Church case would have been avoided if the trusts had conferred power on the Church’s members for the time being to determine the religious belief of the Church in accordance with a constitutional process.

Lord Eldon said in Craigdallie that ‘If it were distinctly intended [in the trust] that [the Church members] should direct the use of the property … then the court might act upon it’ (p.606).  (In the Free Church case, a minority of the Law Lords apparently held that the trusts did empower Church members to modify its doctrines.)

In the 20th century, trusts of Church property have been careful to avoid importing religious doctrines.  The Anglican Church in Wales has a trust dating from 1919 which is armour-plated against the possibility of a dissenting minority gaining control of the Church’s property.  The Church in Wales’s property is held ‘upon and for such trusts, objects and purposes … as the governing body [General synod] shall from time to time determine’.  There is no reference here even to the Church in Wales (only to its governing body), let alone its religious beliefs.

The narrative in the Bentley case suggests that the Canadian Church’s trusts and constitution are contemporaneous with those of the Church in Wales, and motivated by a similar desire to avoid a repetition of the Free Church case.

The ‘traditionalists’ in Bentley were therefore bound to fail.  But that does not reflect a more ‘neutral’ stance by the courts.  The courts interpret trusts and contracts as they always have done.  It is the Churches that have changed, not the courts.  Church trusts now confer power on the Church’s members for the time being to determine its religious belief in accordance with a constitution.

This means that the Church is no longer, as J.N Figgis put it, ‘bound … rigidly by the dead hand of its original documents’.  The court’s function is therefore limited, as Professor Ogilvie says, to a form of judicial review.

Is this a good thing?  Figgis’s criticism of the Free Church decision was that it denied the Church ‘any real and inherent power of development … the power of defining and developing in its own doctrine’ (Churches in the Modern State (1913), pp.20-21).  One can agree that antiquated trusts which tie the Church to the past are undesirable, and that secular courts are not the best places to discuss religious doctrine.  However, it is most unlikely that Figgis would have approved of the ‘development’ that precipitated the Bentley case, nearly 100 years after he wrote.

Constitutional process has a valid, indeed essential, function in the Church, but it still lacks the fullness of authority necessary to genuine development.  By itself it can lead to fragmentation and schism, the opposite of development.  Faith is released from the archaic control of long-dead founders (as in Free Church) only to become the captive of what Lord Eldon called ‘the sense of the existing majority’ (Pearson, p.150), which is inevitably conditioned by the prevailing secular cultural values (as in Bentley).