Non-Justiciability and Shergill v Khaira

This morning the case of Shergill v Khaira was cited during the Supreme Court hearings on the Brexit-related judicial review cases of Miller v Prime Minister and Cherry v AG for Scotland

According to Joshua Rozenberg on Twitter , the case was cited for the ‘second rationale for courts refusing to enter the political field  flows from considerations of constitutional propriety, having regard to the separation of powers’. Lady Hale then said that this was an obiter part of the case which was met with the counsel’s retort that ‘there is obiter and there is obiter’.

The Shergill case was on whether decisions on religious doctrine are justiciable. It can be found here. There’s a useful summary of the Supreme Court decision by Frank Cranmer here and I have blogged about the earlier Court of Appeal decision here

In Shergill it was stated that there were two categories of non-justiciable areas: ‘The first category comprises cases where the issue in question is beyond the constitutional competence assigned to the courts under our conception of the separation of powers.’  (Para 42). That’s the category in play in the Supreme Court today. 

While: ‘The basis of the second category of non-justiciable cases 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’ (Para 43). That’s the position on religious doctrines – which was what Shergill was about.  

The Supreme Court stated ‘In both jurisdictions the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment.’ (Para 45) This simply restated a long-held position, detailed in my textbook ‘Law and Religion’  (Cambridge University Press 2011) 74-77.  (Available here )

Shergill also said that the role of the civil court in determining religious disputes is that it ‘keeps the parties to their contract’ (Para 48). This suggests a contractual understanding of religious freedom, as discussed by Dr Sharon Thompson and I in our article on ‘Relational Autonomy and Religious Tribunals’ which can be downloaded for free here

It will be interesting to see if there are any new statements of the principles of justiciabilty in the new Supreme Court judgment when it comes. 

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