Church and State in the United Kingdom: Anachronism or Microcosm?

Chapter 14
Church and State in the United Kingdom: Anachronism or Microcosm?


Mark Hill QC


This brief chapter is a distillation of the observations which I sought to make during the conference’s workshop on Church and State in Northern Europe convened by Professor Marco Ventura, in response to a lead paper by Dr Lisbet Christoffersen covering the Nordic States. My aim was to foster a fuller understanding of the nature of Church–State relations in the United Kingdom, and to suggest that the mild preference of a particular religious denomination, whilst of historic pedigree and seemingly anachronistic in the twenty-first century, nonetheless remains a legitimate and effective vehicle for securing religious liberty in a pluralist society. The United Kingdom model of Church and State does not purport to be a paradigm, apposite for transplantation into the constitutional framework of other countries such as the emergent democracies in Eastern Europe, but it is the product of the nation’s history, crafted and adapted over centuries, evolving through consensual development without civic or political revolution.


Evolution: Persecution, Toleration, Accommodation and Pluralism


The legal approach of the state towards religion has differed over time and across societies.1 The current era marks an abrupt shift from passive religious tolerance to the active promotion of religious liberty as a basic right, and needs to be placed in context.2 Religious tolerance is a relatively recent phenomenon; an historical view shows that religious disadvantage and discrimination had previously been the common experience.3 The ousting of papal jurisdiction marked by the reforming statutes of the 1530s not only led to the formation of the Church of England but also resulted in religious intolerance. The predominance of a State Church with the secular monarch as supreme governor led to the disadvantaging of other religions, most notably Roman Catholicism, with the exception of the period of Mary’s reign when papal authority was restored (1553–1558) and the commonwealth period when dissenting Protestant groups were tolerated (1648–1660).


After 1689, this tradition eventually gave way to limited and piecemeal toleration, whereby dissenters were permitted to have their own places of worship provided they gave notice to a Church of England bishop and met with unlocked doors (Toleration Act 1689). The law tolerated some religious difference but there was little evidence of a universal respect for religious liberty.


The centuries following the original legislation witnessed the widening of toleration and the limited introduction of legal freedoms. Further, the spread of toleration led to the lifting of legal disabilities by the conferring of positive, though still partial, rights.4 Legal mechanisms generally favoured individual freedom of action. In the absence of a legal prohibition people were permitted to do as they wished: passive accommodation as opposed to prescriptive regulation.5 In time, this common law position was supplemented by specific statutory exceptions designed to lift legal disabilities. This was most notable in relation to the Sikh turban.6 Sikhs alone are exempt from the requirement to wear a safety hat on a construction site. Paragraph 11 of the Employment Act 1989 provides that the requirement will not ‘be imposed on a Sikh … at any time when he is wearing a turban’. Sikhs are among those exempted from the law relating to the wearing of protective headgear for motorcyclists.7 A further example is the Sikh kirpan, a small ceremonial dagger, which benefits from an exemption from the criminal offence of having a blade in a public place. However, the Criminal Justice Act 1988, section 139, is broadly drafted and provides a defence if the blade is carried ‘for religious reasons’. Thus religious symbols in addition to the kirpan are protected. Such provisions owe more to the tradition of religious tolerance than to any notion of religious liberty as a widespread positive right.8 The common law permitted the holding of different beliefs (and to a lesser degree their manifestation) but not in the prescriptive manner as came to be articulated in human rights guarantees found in international instruments, such as the ECHR which effectively prescribes a series of detailed legal tests to be applied scientifically, arguably fettering judicial discretion.


Models of Church and State


Within the United Kingdom, there are various models of Church and State: some Churches are established, others are disestablished, while yet others are non-established. Some are ‘national’, some regional, and some multi-national. There are many myths and misunderstandings about the nature of establishment which need to be addressed in a search for a more complete picture. The United Kingdom has not one, but two established churches. The (Anglican) Church of England is the Established Church in England. The (Presbyterian) Church of Scotland (or ‘the Kirk’) is the Established Church in Scotland. The Queen is a member of both, one Anglican, one not; one episcopal, the other presbyterian. She is the ‘Supreme Governor’ of the Church of England. However, the Church in Scotland (the Scottish Episcopal Church) is not established nor is the monarch its head. The Church of England was disestablished in Wales in 1919. The pre-existing law of the Church of England now binds all members of the Church in Wales by way of quasi-contract. As if this is not complicated enough, there are special provisions for the Isle of Man and the respective Bailiwicks of Guernsey and Jersey.9 The (Anglican) Church of Ireland was disestablished by the Irish Church Act 1869 and now constitutes a single component Church of the Anglican Communion embracing both Northern Ireland and the Republic of Ireland (Éire). Save for the Church of England, which has a particular status resulting from establishment,10 and the Church of Scotland, which is similarly (but not identically) established north of the border,11 all other Churches and faith communities which operate within the United Kingdom do so as ‘unincorporated associations’ and are treated in law as members’ clubs, regulated by their own rules, constitutions and governing instruments.


Establishment


The meaning, effect and future of the establishment of the Church of England is a complex matter of history, ecclesiology, sociology and politics.12 However, the fact of establishment dictates the legal relationship which it enjoys with the State and the manner of its self-regulation. The abolition of papal authority at the time of the Reformation and the recognition of the Sovereign as Supreme Governor of the Church of England created a discernible unity between the Church and the State, the results of which are evident today. In the context of a recent appeal on an obscure point of law under the Chancel Repairs Act 1932, the Judicial Committee of the House of Lords enjoyed a rare opportunity to consider the constitutional status of the Church of England in contemporary jurisprudence.13 Lord Nicholls of Birkenhead observed:


Historically the Church of England has discharged an important and influential role in the life of this country. As the established church it still has special links with central government. But the Church of England remains essentially a religious organisation. This is so even though some of the emanations of the church discharge functions which may qualify as governmental. Church schools and the conduct of marriage services are two instances. The legislative powers of the General Synod of the Church of England are another. This should not be regarded as infecting the Church of England as a whole, or its emanations in general, with the character of a governmental organisation.14


Having cited passages from Hill’s Ecclesiastical Law,15 Lord Hope of Craighead stated that the Church of England as a whole has no legal status or personality.16 Whilst acknowledging that it had regulatory functions within its own sphere of activity, he concluded that it could not be considered to be a part of government, observing that the State has not surrendered or delegated any of its functions or powers to the Church: ‘The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government’.17 Lord Rodger of Earlsferry, in a concurring speech, observed that ‘the juridical nature of the Church [of England] is, notoriously, somewhat amorphous’.18 He concluded:


The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local. Founding on scriptural and other recognised authority, the Church seeks to serve the purposes of God, not those of the government carried on by the modern equivalents of Caesar and his proconsuls. This is true even though the Church of England has certain important links with the state. Those links, which do not include any funding of the Church by the government,19 give the Church a unique position but they do not make it a department of state: Marshall v. Graham [1907] 2 KB 112, 126, per Phillimore LJ. In so far as the ties are intended to assist the Church, it is to accomplish the Church’s own mission, not the aims and objectives of the Government of the United Kingdom.20


These assertions may seem both obvious and self-evident, but the Court of Appeal had previously reached the opposite conclusion on the specific question of whether a parochial church council is a public authority for the purposes of the Human Rights Act 1998.21 The Court of Appeal regarded the established nature of the Church of England as imbuing its component institutions with a governmental function sufficient to render them public authorities. The analysis of the House of Lords is much to be preferred, being more cogent and more soundly argued. Had the House of Lords determined that component parts of the Church of England were ‘public authorities’ they would automatically have been excluded from the category of ‘victim’ under the Human Rights Act 1998. This would have produced the wholly unsatisfactory result whereby every religious organization in the United Kingdom would have enjoyed the Article 9 right to freedom of religion except the established Church of England.22


The inextricable link between Church and State permits the State to legislate for the Church and its religious affairs, either directly or by implication. Examples of this in more recent times include the Marriage Act 1949, the Church of England Convocations Act 1966, the Education Act 1996, and the School Standards and Framework Act 1998. Of less direct though no less important application is the Charities Act 200623 and certain provisions of the Data Protection Acts of 1984 and 1998 and the Protection of Children Act 1999.24 Two obscure provisions of the Civil Partnership Act 2004 appear to run contrary to the emergent autonomy of the Church of England and the principle of self-determination which have their origin in the Church of England Assembly (Powers) Act 1919 and live on in the General Synod.


Two sections of the Civil Partnership Act 2004 sit somewhat uncomfortably with this progress towards autonomy.25 They provide that a Minister of the Crown may by order amend, repeal or revoke Church legislation, a term defined so as to include Measures of the Church Assembly or General Synod and any orders, regulations or other instruments made by virtue of such Measures. This amounts to a curtailment of legislative freedom on the part of the Church of England, albeit partial and predicated upon benign and consensual exercise by the government. However, the words of the statute are clear and unambiguous, and the absence of any express provision for seeking the concurrence of General Synod gives considerable power to the Executive, rather than to Parliament as a whole, in theory if not also in practice, to legislate for the Church of England.