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The compatibility of an established church system

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  Introduction This essay will look to analyse the compatibility of an established church system alongside democracy in the 21st Century. Oliva notes that the “whole debate about establishment has concentrated on the English situation”[1] and the position and role of religious figures and bodies such as bishops and the Church of England (CofE) will form the basis of analysis for this essay. In order to assess this, the definitions and traits of an established church system will be explored first. Establishment The question arises as to what exactly a church establishment is. Establishment is a point of contention within the legal framework as there is “there is no single definition of establishment”.[2] However, commentators and the judiciary alike have attempted to define establishment. Firstly, Ogilvie notes that an established church “is recognised by the State as the truest expression of the Christian faith”[3] which the state has a legal duty to protect.[4] This definition reflects the unique position of an established church in a state due to the importance and the acceptance of the church by the state. Furthermore, for the Australian judiciary, establishment has at least four definitions[5] and “the most commonly used definition” [6] concerns conferring the status of a state church on a religious body.[7] In the United Kingdom (UK), there are two churches established by law; the CofE and the Church of Scotland (CofS).[8] The CofE possesses “certain important links with the state”[9] yet is not regarded as a department of state as the Church has its own religious objectives which are not the same objectives of the government.[10] However, such a statement is debateable considering the presence of bishops in the House of Lords (HOL). Furthermore, establishment is further split into two types in England; high establishment and low establishment.[11] High establishment is concerned with the presence of religious figures in the constitution[12] and low establishment is concerned with the presence of the CofE in the everyday lives of ordinary citizens.[13] With this distinction in mind, the prevalence of the CofE and state churches within a democracy will be discussed in order to assess their compatibility. The CofE This section will consider the role of the CofE in the terms of high establishment[14]and assess whether it has relevance in modern democracy. The CofE has been described as being “autonomous”[15] and this raises the question in regards to its current day relationship with the state and society in general. It has also been described as having once been “an equal partner with the state”[16] but its present place within the constitution has been called into question.[17] Based on the above, there seems to be valid calls for the disestablishment of a CofE due to its declining relevance and subsequent low impact on society. The reasoning behind this thought is due to the changing religious demographic of the British public and the decline in active membership of the CofE.[18] It has been noted that there are roughly one million Muslims in the UK[19] alongside “substantial Hindu and Sikh”[20] populations. In modern democracy, where voters now profess to religions other than Christianity more so than ever before, should the CofE still hold a “privileged position”?[21] It would be suitable to look at the statements of the leaders of other religious denominations in order to assess this question. It has been noted that the Muslims would like the church to “act as the advocate for all belief systems”[22] whilst the Sikhs’ are happy with the establishment so long as the church act with tolerance in regards to other faiths[23] and the Jewish community also have a similar opinion.[24] It can therefore be submitted that the CofE represents a religious symbol for all faiths regardless of the fact that it is a Protestant Christian Church. The statements provided above further highlight this thought and the CofE can be said to provide a safeguard for all faiths in the public arena. Certain commentators have stated that the established church system is derived from “seventeen century experiences”[25] and has “long worn”[26] out; however, the evidence provided above reflects its relevance in the 21st Century through the importance other religions attach to the establishment. The disestablishment of the church may not only result in outrage from Protestant Christians; there may also be a backlash from other religious groups and this indeed demonstrates the compatibleness of a church system alongside the modern democracy. However, although the CofE has been discussed in terms of a religious symbol; we must also consider the functions of the church and the roles certain individuals have. The Monarch It is the monarch’s relationship with the CofE which reflects one aspect of the relationship between the church and the state due to the powers she holds in relation to the CofE and her status as the “supreme governor of the church”.[27] These powers will now be discussed in order to analyse whether the state and the CofE are compatible alongside each other. The monarch possesses certain powers in relation to the CofE. Her powers include the appointment of diocesan bishops[28], suffragan[29] bishops and to assent church legislation. The issues of the bishops will be discussed further on; the point of focus here is that relationship between the monarch and the CofE. The most contentious point here is the position of the monarch being the supreme governor of the CofE. The specific issue of contention is regarding the fact that “only an Anglican monarch could be the supreme governor of the CofE”;[30] thus denying the thought of having a non-Anglican monarch. This controversial point has been discussed by Brazier who feels that it shouldn’t be an issue at this present moment due to practical reasons.[31] He cites the reality that “any foreseeable future supreme governor is likely to be an Anglican”.[32] Whilst this point is highly accurate, the position of the monarch must be assessed light of its compatibility with democracy; it is here where the issue is relevant. Oliva is particularly critical of the aforementioned notion due to the laws being of an anti-catholic nature. He is of the opinion that these anti-catholic vestiges suggest that the maintenance of the monarch is dependent on such vestiges.[33] In relation to democracy, due to the current composition of different religions within society, it can be submitted that the position of the monarch as the supreme governor of the CofE is not compatible with a democracy. Certain sections of society, especially Roman Catholics, may find her position as offensive due to her advocating Protestant Christianity as the true religion and the indirect denouncement of Catholicism. It can therefore be submitted that due to the reasons outlined, the laws which govern the monarch’s position are outdated and are restricted to the society in which they were passed. In today’s society, this position is not as relevant due to the change in religious demographic. The Fabian Commission[34] report may be a way to rectify this issue and the removal of her as the head of the CofE would not amount to total disestablishment of the church but would help her to be seen as embracing all faiths as opposed to one; an important concept in today’s multi-cultural society. Bishops The presence of bishops in the HOL has become more controversial as society has diversified. The diocesan bishops of the CofE are eligible to sit in the HOL as Lord Spiritual[35] and “only the CofE has guaranteed institutional representation in the lords”[36]; a huge benefit for the CofE. As mentioned above, it is the monarch who appoints bishops of the CofE and historically, the Prime Minister (PM) had a more prominent role in relation to the advice offered to the monarch. The current position sees the PM takes a lesser role as a result of the Governments statement in 2007; the Crown Appointments Commission now sends only one name to the PM and he conveys this to the Queen.[37] The UK is the only legislature in the European Union with such an arrangement and this has been described as being “unique”. [38]The suitability of the presence of the bishops in the HOL will now be discussed. The issue of their presence has been discussed at length due to the change of religious compositions residing in Britain; a point which can be found in the government’s white paper in 1998.[39] The Wakeham report then sought to offer solutions to these criticisms such as the appointment of people from other faith groups[40] but the government did not accept their proposals.[41] Further reports on reforming the HOL have also considered the bishops’ presence in the HOL[42] and Oliva feels that there will be “no room for bishops”[43] in a wholly-elected house. Most of the criticisms are centred upon the suitability of having members from one religion denomination in the HOL, however, we must also consider the benefits of the bishops’ presence and weigh them against the criticisms. It has been noted that the bishops “possess a wide range of experience”[44] and they possess a unique skill in being able to provide a balanced view due to their interactions with public institutions and ordinary citizens.[45] This is a skill which must not be underestimated; the knowledge and balanced views that they provide in the HOL is invaluable to society. Their opinions will be formed to provide a medium between the needs of society and the aspirations of politicians. This, in theory, provides a voice in the HOL for the members of society as the bishops can represent their views; the removal of the bishops would take away such benefits and it can be submitted that this would be detrimental to society. Furthermore, the concept of having multi-faith representation in the HOL by reducing the number of bishops is, in theory, a brilliant concept which would represent the diverse nature of society. However, the practical aspect of achieving this has been called into question.[46] How would we know which religious representatives to choose from? There would be every chance that at least one religion would be overlooked and this would open the door to more controversy and may even lead to claims of “discrimination”.[47] There may also be sectarian differences within religions; for example should there be a Sunni or a Shia Muslim, a Catholic or Protestant Christian? How would each sect react if the other is represented and they are not? Having one religious representation in the HOL rather than having all representations apart from one is more desirable. Furthermore, Smith also envisages dispute arising in the HOL due to different representations disagreeing with each other and some representations not conforming to the liberal traditions of the UK in matters such as divorce.[48] Such scenarios would be detrimental to the HOL. Furthermore, in a fascinating interview with bishops conducted by Harlow, bishops themselves said that they see themselves as being able to “represent faiths generally, not just the Church of England”.[49] It can therefore be submitted that the situation would be complicated by appointing individuals from different faiths and this proposal is not feasible in reality. Due to the reasons outlined, it is evident that the bishops’ presence in the HOL is perfectly compatible with democracy due to the benefits associated with them and the weak nature of the reforms proposed. Other Systems The establishment systems in other countries will briefly be discussed. In Scotland, the position of the CofS as an established church has “been subject to debate”.[50] It has a different relationship with the state than the CofE as the monarch is not the supreme governor of the church, members have no right to sit in the HOL and legislation of the church does not require acknowledgement from the crown.[51] However, this is not to say that the CofS has no links whatsoever with the state. There are statutory oaths of respect for Presbyterianism[52] and the monarch is a special guest at the General Assesmbly.[53] The Scottish model represents an alternative to the current English model and may even be the way forward for England.[54] In modern democracy, the CofS is compatible as it is not strictly established in the English sense, therefore avoiding the controversies surrounding the CofE. This model supports the theory that a church establishment is not essential for a country and may even be preferred. However, that is not to say that establishment is no longer compatible. There are several European Union (EU) countries which have a system similar to England’s. The Danish church is an example of this[55], as are the Greek and Finland models.[56] This highlights the point that it is not only England which has an established church system which some feel is outdated. On the contrary, other countries in the EU have the same approach and feel it is still compatible in modern times. Low Establishment The presence of the CofE in the terms of low establishment also benefits society immensely. The requirement of having a chaplain in every prison in England[57] could have a massive impact on the rehabilitation of inmates which is one of the aims of sentencing.[58] Religion also has a place in the education system of the UK through the compulsory teaching of religious education.[59] This will be beneficial to children as they can study the different religions which are represented in our multicultural society thus embracing diversity and they may even choose to follow one. Furthermore, if children have the right to study other compulsory subjects such as Maths, English and Science, should they also not have the right to study religious education? Disestablishment of the church could also lead to the abolishment of this requirement and could even constitute a breach of human rights.[60] Furthermore, without a church system, there could also be a minute possibility that Christmas would not be a national public holiday as it is a Christian festival. Surely, even Atheists would not be happy with such a scenario and there will be a national outcry. Conclusion This essay has focused mainly on England’s established church model as it is the country we reside in, therefore, it can be submitted that England’s model would be the most suitable country to analyse an established church system alongside democracy. As documented above, England highlights that an established church system is compatible alongside democracy in the 21st century even though the religious composition of society has drastically changed; the church systems utilised by other EU countries further reinforces this point. That is not to say that every aspect of the church system is perfect; the monarchs’ role in relation to the CofE needs to be reconsidered[61] due to the reasons outlined above. However, the position of the CofE as a symbol of religion in the public eye for all faiths also demonstrates the compatibleness of a church system with democracy and minimises the need for change. Furthermore, the benefits of bishops’ presence in the HOL justify maintaining their position. It can therefore be submitted that an established church system is compatible with 21st century democracy as demonstrated by the English model. Bibliography Primary Sources Cases
  • AG (Victoria) ex rel Black v Commonwealth (1981) 146 C.L.R. 559 at 595-7 (H Ct Australia)
  • Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 456
Legislation
  • Accession Declaration Act 1910
  • Act of Supremacy 1559
  • Appointment of Bishops Act 1534
  • Human Rights Act 1998 Schedule 1 Part 1 Article 9
  • Suffragan Bishops Act 1534
Secondary Sources Articles
  • Brazier R, 'Legislating about the monarchy' [2007] CLJ
  • Carr W, “A Developing Establishment” [1999] Theology
  • Cranmer F, 'Church State relations in the United Kingdom: a Westminster view' [2001] ELJ
  • Morris B, 'The future of church establishment' [2010] ELJ
  • Morris B, 'The future of "high" establishment' [2011] ELJ
  • Ogilvie M H, “What is a Church by Law Established?” [1990] XXVIII OHLJ
  • Oliva J G, 'Church, state and establishment in the United Kingdom in the 21st century: anachronism or idiosyncrasy?' [2010] PL
  • Smith C, 'The place of representatives of religion in the reformed second chamber' [2003] PL
  • Harlow A, Cranmer F & Doe N, 'Bishops in the House of Lords: a critical analysis' [2008] PL
Books
  • Rosser-Owen D, “A Muslim Perspective”, in Modood (ed.), Church, State and Religious Minorities, 1997
  • Singh R, “A Sikh Perspective”, in Modood (ed.), Church, State and Religious Minorities
  • Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003)
  • The Constitution Unit, Comparative Study of Second Chambers (University College London, London: University College 2002)
Websites Word Count (Excluding Footnotes and Bibliography): 2500
[1] Javier Garcia Oliva, 'Church, state and establishment in the United Kingdom in the 21st century:  anachronism or idiosyncrasy?' [2010] PL [2] Oliva (n1) [3] M. H. Ogilvie, “What is a Church by Law Established?” [1990] XXVIII OHLJ [4] Ogilvie (n3) [5] AG (Victoria) ex rel Black v Commonwealth (1981) 146 C.L.R. 559 at 595-7 (H Ct Australia) per Gibbs J [6] Oliva (n1) [7] AG (Victoria) ex rel Black v Commonwealth (n5) [8] Frank  Cranmer, 'Church  State  relations in the  United  Kingdom: a  Westminster  view' [2001] ELJ [9] Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 456 per Lord Rodger [10] Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank per Lord Rodger (n9) [11] W. Carr, “A Developing Establishment” [1999] Theology [12] Oliva (n1) [13] Oliva (n1) [14] Carr (n11) [15] Bob Morris, 'The future of "high" establishment' [2011] ELJ [16] Morris (n15) [17] Morris (n15) [18] Cranmer (n8) [19] Cranmer (n8) [20] Cranmer (n8) [21] Cranmer (n8) [22] D. Rosser-Owen, “A Muslim Perspective”, in Modood (ed.), Church,  State and Religious Minorities, 1997, pp.86-87 [23] R. Singh, “A Sikh Perspective”, in Modood (ed.), Church,  State and Religious Minorities, p.67 [24] Oliva (n1) [25] Bob Morris, 'The future of church  establishment' [2010] ELJ [26] Morris (n25) [27] Act of Supremacy 1559 [28] Appointment of Bishops Act 1534 [29] Suffragan Bishops Act 1534 [30] Rodney Brazier, 'Legislating about the  monarchy' [2007] CLJ [31] Brazier (n30) [32] Brazier (n30) [33] Oliva (n1) [34] Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003) [35] The Constitution Unit , Comparative Study of Second Chambers (University College London , London: University College 2002) 35 [36] A.Harlow, F.Cranmer & N.Doe, 'Bishops in the  House of  Lords: a  critical  analysis' [2008] PL [37] Oliva (n1) [38] Oliva (n1) [39] Harlow, Cranmer & Doe (n36) [40] C Smith, 'The place of  representatives of  religion in the  reformed  second  chamber' [2003] PL [41] Oliva (n1) [42] Oliva (n1) [43] Oliva (n1) [44] C Smith (n40) [45] C Smith (n40) [46] C Smith (n40) [47] C Smith (n40) [48] C Smith (n40) [49] Harlow Cranmer & Doe (n36) [50] Oliva (n1) [51] Oliva (n1) [52] Accession Declaration Act 1910 [53] Oliva (n1) [54] Oliva (n1) [55] Oliva (n1) [56] Oliva (n1) [57] Oliva (n1) [58] Sentencing Council , 'Sentencing basics' (Sentencing Council ) http://sentencingcouncil.judiciary.gov.uk/sentencing/sentencing-basics.htm last accessed 25/03/2014 [59] Oliva (n1) [60] Human Rights Act 1998 Schedule 1 Part 1 Article 9 [61] Oliva (n1)
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