At first glance, it appeared to be a technical and dry decision about the operation of the Places of Worship Registration Act 1855, yet the Supreme Court judgment in R (on the Application of Hodkin) v Registrar General of Births, Deaths and Marriages Footnote 1 was actually one of the most significant decisions related to law and religion in 2013.Footnote 2 The Justices of the Supreme Court held that a church within the Church of Scientology could be a ‘place of meeting for religious worship’ within section 2 of the 1855 Act. In so doing, the Supreme Court overruled one of the most well-known decisions in English religion law, R v Registrar General, ex parte Segerdal.Footnote 3 In Segerdal, although the Court of Appeal had held that a chapel within the Church of Scientology could not be registered under the Act, the reasoning of their Lordships differed: Buckley LJ and Winn LJ focused on what they perceived to be the lack of ‘worship’, refusing to define the ‘chameleon word’ religion, while Lord Denning emphasised the phrase ‘religious worship’, holding that this required ‘reverence or veneration of God or a Supreme Being’ and that this was not met in the case of the Church of Scientology, which was ‘more a philosophy on the existence of man or of life than a religion’.Footnote 4 All of these statements have been questioned by the bold Supreme Court judgment in Hodkin, which provides guidance on how the terms ‘religion’ and ‘religious worship’ are to be understood by English law in the twenty-first century.
The decision in Hodkin was not unexpected. The House of Lords in Williamson had already informed us that the ‘trend of authority (unsurprisingly in an age of increasingly multicultural societies and increasing respect for human rights) is towards a “newer, more expansive, reading” of religion’.Footnote 5 This sentiment was echoed by Lord Toulson in Hodkin, where he noted that ‘the understanding of religion in today's society is broad’.Footnote 6 Moreover, although charity law decisions had adopted the Segerdal understanding of religion to formulate a definition of religion that required ‘faith in a god and worship of that god’,Footnote 7 this narrow definition had long since been superseded. Buddhist charities had for some time been considered to be for the advancement of religion despite not technically meeting the monotheistic requirements of the common law definition.Footnote 8 And, although the Charity Commission had rejected an application from the Church of Scientology on the on the basis that its ‘core practices’ did not constitute worship since they failed to ‘display the essential characteristic of reverence or veneration for a supreme being’,Footnote 9 more recent decisions suggest that the Commission had broadened the terms of the common law test.Footnote 10 In relation to an application by the Gnostic Society, the Commission relied on its own guidanceFootnote 11 to state that there were four ‘characteristics of a religion for the purpose of charity law’:
a. belief in a god (or gods) or goddess (or goddesses), or supreme being, or divine or transcendental being or entity or spiritual principle, which is the object or focus of the religion …;
b. a relationship between the believer and the supreme being or entity by showing worship of, reverence for or veneration of the supreme being or entity;
c. a degree of cogency, cohesion, seriousness and importance;
d. an identifiable positive, beneficial, moral or ethical framework.Footnote 12
In addition to broadening what was understood as ‘belief in a god and worship of that god’, recent Charity Commission decisions had therefore brought the Commission's understanding of ‘religion’ in line with the requirements found in human rights laws requiring ‘a certain level of cogency, cohesion, seriousness and importance’.Footnote 13 This followed the approach that Employment Tribunals had taken to determining the ambit of ‘religion or belief’ for discrimination law purposes.Footnote 14 There were therefore tentative signs emerging of a common definition of religion under English law, based on the principles surrounding Article 9 of the European Convention on Human Rights (ECHR).Footnote 15 It was therefore to be expected that the litigants in Hodkin would put forward arguments based on the Equality Act 2010 and the ECHR to question the narrow interpretation found in Segerdal. What was surprising, however, is that the Supreme Court considered such arguments to be unnecessary, deciding to overrule Segerdal on other grounds.Footnote 16
THE DECISION IN HODKIN
In Hodkin, Lord Toulson observed that, although there were several reasons why there had never been a universal legal definition of religion in English law,Footnote 17 in defining the composite term ‘religious worship’, it was correct to begin by considering whether Scientology was a religion, since the question of whether there was religious worship ‘is inevitably conditioned by whether Scientology is to be regarded as a religion’.Footnote 18 Lord Toulson upheld the High Court's decision that Scientology was a religion.Footnote 19 His Lordship reasoned that in the absence of ‘some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity’, since this would ‘be a form of religious discrimination unacceptable in today's society’.Footnote 20 The fact that Lord Denning in Segerdal recognised the need to make an exception for Buddhist temples, and the absence of a satisfactory explanation for the rule, were ‘powerful indications that there is something unsound in the supposed general rule’.Footnote 21 Moreover, confining the definition of religion in this way would lead the Registrar General and courts into ‘difficult theological territory’ in a way that ‘is not appropriate’.Footnote 22
Lord Toulson stated that the language of the Places of Worship Registration Act 1855 ‘showed an intentionally broad sweep’.Footnote 23 Drawing upon the jurisprudence of other common law jurisdictions,Footnote 24 his Lordship held that for the purposes of the 1855 religion could be described in summary as:
a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind's place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system.Footnote 25
Although Lord Toulson emphasised that this was ‘intended to be a description and not a definitive formula’, given that it has been given in a Supreme Court judgment it is likely to be very influential indeed. The description raises a number of points. First, as Lord Toulson explained, his reference to ‘spiritual or non-secular’ is intended to refer to ‘a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science’. His Lordship preferred not to use the term ‘supernatural’ to express this ‘because it is a loaded word which can carry a variety of connotations’. However, this would seem to overlook the fact that this criticism would also apply to the word ‘non-secular’.Footnote 26 Lord Toulson added that such
a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind's nature and relationship to the universe than can be gained from the senses or from science.
The language here seems to invoke a rather simplistic notion of ‘science versus religion’; it may have been preferable not to state what a belief is to be about but rather to say that beliefs are notions (or worldviews) held by people which are rarely capable of verification or falsification. The same criticism can be applied to the reference to ‘the infinite’. The sound reasons for omitting any reference to a supreme being would also seem to apply to this synonym: it would again seem to open the door to inappropriate theological debates.
Second, it is important to note that the exclusion of non-secular belief systems applies only for the Places of Worship Registration Act 1855. As Lord Toulson noted, it is not necessary (or indeed appropriate) to extend the definition to secular belief systems because there are other legal provisions which allow for secular wedding services on approved premises.Footnote 27 In other legal contexts, such as the definition of ‘religion or belief’ for human rights and discrimination laws, it has been accepted that atheistic belief systems are covered by the definition of ‘religion or belief’.
Third, it is striking that Lord Toulson's definition views religion as being necessarily a collective affair: it is something ‘held by a group of adherents’.Footnote 28 Although different provisions in English religion law protect religion as a collective and individual right,Footnote 29 this focus on group activity would seem to exclude individuals who develop their own religious beliefs, including those whose beliefs differ from the mainstream of the group.Footnote 30 This collective understanding of religious freedom may be appropriate for the purposes of registration law but should not have wider application.
Fourth, the referencing to ‘teaching’ not only underlines the collective understanding of religion implicit in the definition but also seems odd when read against the last line of Article 9(1) ECHR, which refers to religion or belief being manifested ‘in worship, teaching, practice and observance’. Lord Toulson's definition only seems to relate to teaching and observance, which is particularly peculiar given its statutory context of registration of places of worship. Unlike Lord Denning in Segerdal, the Supreme Court in Hodkin does not regard ‘worship’ as part of the definition of ‘religion’. This should have implications for the charity law definition of advancement of religion. Lord Toulson dealt with the question of whether the chapel was a ‘place of meeting for religious worship’ after he had considered whether Scientology was a religion.Footnote 31 He held that, even if the meaning given to worship in Segerdal ‘was not unduly narrow in 1970, it is unduly narrow now’.Footnote 32 The term ‘religious worship’ should be interpreted as being ‘wide enough to include religious services, whether or not the form of service falls within the narrower definition adopted in Segerdal’.Footnote 33
Unfortunately, however, his Lordship gave no further guidance as to how wide the definition of worship was to be now, only quoting from dictionary definitions which defined worship as including performing acts of adoration, feeling or expressing reverence and adoration and the taking part in religious service, religious rites and ceremonies. Given Lord Toulson's warning that examining ‘fine theological or liturgical niceties was ‘more fitting for theologians than for the Registrar General or the courts’,Footnote 34 then perhaps the solution should be a subjective approach, whereby if an adherent of a belief system protected under the Places of Worship Registration Act 1855 used the premises for actions which they considered to be a manifestation of their religion or belief then that would be regarded, prima facie, as constituting ‘religious worship’.Footnote 35
CONCLUSION
Lord Toulson's speech in Hodkin provides us with a new description of ‘religion’ and a broader interpretation of ‘worship’. Time will tell how influential they prove to be. It is clear, however, that moving on from Segerdal is appropriate. Lord Toulson was correct to say that ‘Lord Denning's definition of religious worship carried within it an implicit theistic definition of religion’.Footnote 36 It is debatable whether such a narrow definition was appropriate at the time in which Segerdal was decided; it cannot be disputed that it is inappropriate now.Footnote 37 The terms of Lord Toulson's definition are preferable to those suggested by the Charity Commission, especially given Lord Toulson's rationale that the definition of religion should not be such that it requires courts to undertake theological evaluations. It is unfortunate, however, that aspects of his Lordship's description of religion will seemingly require courts and decision-makers to do precisely that. It is also to be regretted that the opportunity was not taken to consider arguments based on equality and human rights laws, which might have led the Supreme Court to develop an understanding of religion that could be of use in different areas of religion law. Lord Toulson was correct to insist that his description applies solely for the purposes of the Places of Worship Registration Act 1855. There are several elements of the description which could lead to unfortunate results if applied in relation to human rights or discrimination laws. The judgment of the Supreme Court therefore represents an important step forward but one which could have gone further still.
It is important, however, not to underplay the boldness of the Supreme Court decision. The change in the understanding of religion can be underscored by reference to recent work of the sociologist of religion Linda Woodhead, who has identified different ‘concepts of religion’.Footnote 38 Using her work, it is possible to identify a clear shift in Hodkin. The definition in Segerdal meets Woodhead's concept of ‘religion as belief and meaning’ in that ‘being religious has to do with believing certain things, where that amounts to subscribing to certain propositions and accepting certain doctrines’. By contrast, Lord Toulson's description meets Woodhead's conception of ‘religion as meaning and culture’, which represents a broader understanding of religion ‘as an embracing system of meaning which covers the whole of life’. This underscores how legal definitions of religion are of interest sociologically.Footnote 39 Legal definitions provide a means of inclusion and exclusion controlling access to particular legal privileges. This has profound social effects, in relation not only to the groups and individuals who are included or excluded, but also to society at large. Changing legal definitions of religion provide concrete evidence of the shifting ways in which religion is regarded and understood by society and so judgments such as R (on the Application of Hodkin) v Registrar General of Births, Deaths and Marriages are actually anything but technical and dry decisions.
