The Notion of Religious Establishment and Modern Democracy

From a modern perspective religion undoubtedly has been on the decline in the UK, however as the UK is one of the most pluralistic societies in Europe it would be inappropriate to rule out the importance of religion completely. Religion has become an increasingly important topic within government, illustrated by the enactment of specific legislation such as Human Rights Act 1998 and Racial and Religious Hatred Act 2006[1]. Despite the practice and promotion of several faiths in the UK, Morris argues that “The United Kingdom remains locked constitutionally so far as religion is concerned.”[2] It is suggested that the existence of the established Church of England (COE) contributes hugely to this due to its anachronistic representation in a modern society. This essay will explore whether the notion of establishment is compatible within a modern democracy and other systems in Europe will also be given brief consideration to demonstrate how disestablishment of the COE should not be sought immediately and how our current system provides more benefit than harm. Defining Establishment According to Ogilive, “an established Church is that single Church within a country accepted and recognized by the State as the truest expression of the Christian faith.”[3] Lord Rogers provided an English perspective on establishment by acknowledging that although the COE has “certain important links”[4] with the State, the aims and objectives of the COE differ from those of the State as they have a “religious mission.”[5] Establishment is generally defined by inspecting the relationship between public bodies and religious authorities. It has also been classified into high and low[6], with the former focusing on the Monarch’s role as Supreme Governor of the COE in addition to the presence of Bishops in the House of Lords (HL). In comparison, the latter focuses on the influence of the COE in the ordinary lives of citizens in areas such as prisons or education. Incidents of Establishment The Act of Supremacy[7] affirmed the monarchs position as the only Supreme Head of the COE which was later renamed to Supreme Governor of the COE . The monarch’s position with regard to the COE was further enhanced by the Coronation Oath Act[8] which provides a duty “to maintain the true profession of the gospel and the protestant religion.” Whilst this preserves the symbolic status of the COE, it also calls into the question the legitimacy of such statutes in a diverse society. Further controversy relates to the Act of Settlement[9] which deliberately rules out the possibility of a Catholic monarch and for many today, the existence of such principles is “shocking to modern eyes.”[10] The underlying purpose of the act was to ensure Protestant succession to the throne and to place limitations on instances where the monarch could marry a person of the Roman Catholic faith. Some commentators argue that the existence of such anti-catholic provisions is not acceptable in contemporary society as it implies that the monarchy is dependent upon anti-catholic beliefs[11]. An example of a royal family member who was not eligible to the line of succession due to marriage with a Roman Catholic is The Earl of St. Andrews.[12] The Act of Settlement sits at unease with the existence of statutes such as the HRA 1998[13] which aim to eliminate discrimination. The act only excludes the possibility of marrying a Roman Catholic which means other faiths are not included in the restrictions however this simply makes the exclusion even more specific and controversial. The coronation ceremony is a symbolic element of bestowing upon the monarch their authority however the event is centralised around Christian principles. Critics argue that this symbolic ceremony should adopt an inclusive rather than exclusive approach. The Fabian Commission[14] also supported this concern as it reported that “a specifically Anglican coronation service is no longer appropriate.” The commission also reported that the focus of the ceremony should be on the “democratic authority conferred on the monarch as Head of State”[15] and due to this, the coronation would be viewed as a “multi-faith service and be secular.”[16] A pluralistic society demands respect for all religious denominations however when the supreme position of the country is discriminatory itself, this calls into question the democratic principles of such a state as religious freedom cannot be an underlying privilege. The example of Tony Blair’s late declaration of the Catholic faith illustrates this point and shows the anxiety surrounding this whole debate. The passage of the Succession to the Crown Act 2013 removed the disqualification provision after marriage to a Roman Catholic and also removed the prohibition on the monarch being married to a Roman Catholic which indicates positive steps towards removing discrimination. Even so, it is claimed that the underlying discriminatory provision of preventing the monarch from belonging to the Roman Catholic faith remains, thus Protestant domination which existed in 1700 still remains today. Therefore, whilst religious freedom undoubtedly exists, religious equality does not because of establishment of the COE.[17] This position was clarified by the Monarch in 2012 where she said “the Church has a duty to protect the free practice of all faiths in this country”[18] however with the current existence of discriminatory provisions and with an increase in the practice of non-Christian religions, the notion of “protecting all faiths” seems a distinct reality. There is huge anticipation surrounding the next possible monarch over whether establishment would still remain especially as he expressed his desire to be “Defender of Faith”[19] rather than “Defender of the Faith” which represents a more inclusive and compatible approach to modern society. The Appointment of Bishops Act 1534 provides for the bishops to sit in the HL’s through the nomination by the monarch. Since 2007 the Prime Minister no longer plays an active role in the selection of individual candidates[20] and as the role was transferred to the Crown. The presence of bishops in the HL is unique as it is the only national legislature with such religious representation[21] with the number limited to 26 in the Bishop of Manchester Act[22]. Although establishment justifies the presence of bishops in the HL critics argue that this gives preference to the Christian faith and thus their presence is not beneficial for other religious denominations. This problem was acknowledged by both parliament and the government and after the 1997 elections the issue of wider religious representation has been considered as part of Lords reform.[23] The Royal Commission on the reform of the HL highlighted how having representation from only one faith was unfair and the Wakeham Commission also stressed how there was “no direct or logical connection between the establishment of the Church of England and the presence of COE bishops in the Second Chamber.”[24] The Wakeham Commission also proposed a reduction in the number of bishops from 26 to 16.[25] The COE itself endorsed a move towards wider representation as part of plans for a new reformed HL and it also said that it was “willing to speak in Parliament for its Christian partners and for the people of other faiths and none”.[26] Despite the best efforts of the Commission to broaden representation, the government claimed that the practical obstacles would be too great and not all faiths have a hierarchical structure which allows the identification of religious representatives.[27] These concerns were also supported by a constitution unit which highlighted the practicalities and difficulties of reaching an agreement that would satisfy all religious groups.[28] The privileged position of bishops in the HL has been a huge concern for many years however the favourable position does not diminish the value of other faith groups. Anna Harlow[29] conducted a questionnaire with regard to the role of the bishops and more than half felt that their position allowed them to represent faiths generally and not just the COE. The bishops also commented on how they have frequent contact with other religious groups on both religious and national matters.[30] This positive approach towards establishment has also been supported by religious representatives with Tariq Modood[31] amongst others who argued that “as long as the COE can preside over the multifaith situation with sensitivity, tolerance, respect and non-interference, there should be no resentment of its special relationship with the British state.”[32] Bishop Micheal Nazir-Ali also supports the current structure by arguing that the COE retains a special place in society and allows “voiceless people to be heard.”[33] History has provided the COE with guaranteed institutional representation[34] in the HL however these anachronistic privileges play a useful part in modern democracy. Having religious representation in the HOL is beneficial to all faith groups and ensures religion retains a special place in modern society and after 2007 with the PM less active in the appointment of bishops, it promotes the autonomous nature of the COE. Proposals for a wholly elected HL therefore should not be supported as it would disregard the importance of bishops in the HL and there would undoubtedly be no room for bishops to sit in the HL under a wholly elected chamber. The established position of the COE also impacts upon the ordinary lives of citizens in areas such as education and prisons which is commonly referred to as low establishment. The Education Act 1996 states that a Standing Advisory Committee on Religious Education must decide the content of religious education and the COE has a reserved position in the committee. Even though this provides a privileged seat for the COE it does not diminish the importance of “other religions represented in Great Britain.”[35] This favourable position for the COE is a sign of establishment[36] and also provides full religious coverage regardless of the number professing the Anglican faith. Nevertheless, the mandatory coverage of the COE should be maintained as a religious aspect to education provides a sense of identification for many members of modern society who are religious. The Prison Act 1952[37] holds that every prison must have a chaplain irrespective of the number of prisoners who profess the Anglican faith. This further indicates the effects of establishment of the COE however it is important to note that the chaplain has a duty towards all inmates.[38] These two examples of low establishment demonstrate the privileged position of the COE as a result of establishment however they by no means belittle other faiths and a positive approach towards other faiths is demanded which is compatible with a modern democracy. Scottish Model The relationship of the COS with the state is regulated by the Church of Scotland Act 1921 and the act supplemented with the Articles Declaratory provides freedom to the church in its mission.[39] Article IV is the most important as it provides for the independence of the church including the right to be involved in “all questions concerning membership and office in the church.”[40] Scotland enjoys what is regarded as “light establishment”[41] and the position differs from that in England. The monarch is not the Supreme Governor of the COS however they must commit to preserving the church and the Presbyterian government. Unlike the English position, royal assent is not required for legislation and COS members are void of the right to sit in the Lords. A further indication of the separation of church and state is the distinction of matters spiritual however the relevant case of Percy[42] which concerned sex discrimination and acknowledged the right of the church to deal with such matters, held that contracts between a church and its ministers can have effect in law, casting doubt on what constitutes matters spiritual.[43] The Scottish position seems to promote autonomy and freedom of the church and many view this model as “an example to be emulated.”[44] In addition to this Hastings also praised the Scottish establishment model by saying it is “a system in which religion is accepted as not being subject to State authority but bearer of a kind of independent sovereignty which merits public recognition.”[45] State Church systems in other EU States It is also worth considering how establishment operates in member states across Europe. A comparative approach will be taken in relation to the systems in both Denmark and Greece. The Danish system encompasses a high degree of state involvement in the Church, with the Danish constitution stating that the church “is to be supported by the state in its economic, legal and political relations.”[46] The Danish church has a relatively low level of autonomy, with church regulation in the hands of the Ministry of Ecclesiastical Affairs due to the inexistence of an internal synod with legislative capabilities. Their functions include approving the appointment of clergy, which is reflective of the COE position until 2007 which saw less involvement from the PM. In comparison, the position of Greece is more liberal and state control is minimal. The Greek constitution states that “the orthodox church is autocephalous” [47] providing for its autonomous nature and the Holy Synod enjoys legislative functions as it can create canon law which differs from the position in Denmark. One similarity exists between the Greek and English model in that state authorisation is required for appointments and nominations to the church. This analysis highlights the differences between state models, but more importantly emphasises how the UK is not the only state in modern times with a highly established system. By comparing two distinct models like Denmark and Greece, it shows the usefulness of our present system and how gradually our present system can be improved through observing other states rather than seeking immediate disestablishment. Conclusion A British Social Attitudes survey demonstrated that in a time period of 25 years, those prepared to say that they had no religion rose from 31% to 41% and that 50% of respondents claimed that they were Christian[48] therefore the question needs to be asked whether the establishment of the COE is compatible with a modern democracy. The privileged position of one faith in the Lords is offensive as it implies that only those people are qualified to carry out those functions.[49] However, representatives of minority faiths have supported the current system and it is argued that at least some members of religious minorities would feel more isolated and detached in a disestablished state than under the present one.[50] The monarch’s position with regard to the COE is based on anachronistic principles and is not reflective of modern society however the position of bishops in the Lords differs as they perform important representative functions and uphold the importance of religion especially during times when religion itself is declining. An established COE is compatible within a pluralistic society and is more importantly supported by Article 9 of the ECHR[51] , where case law has provided authority that there is no religious discrimination provided the state does not compel such practices upon its citizens. Although the current system has its flaws like every other system, a process of gradual change is more appropriate rather than seeking a radical solution such as disestablishment and there are alternative models, such as the Scottish model, present in modern times that can provide a platform to bring about change. Bibliography: Books

• Russell Sandberg, Law and Religion (Cambridge University Press, New York 2011)
• Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003)
• Tariq Modood, Church, State and Religious Minorities (Policies Studies Institute, London 1997)
• The Constitution Unit, University College London, Comparative Study of Second Chambers (London: University College, 2002)

Cases

• Aston Cantlow v. Wallbank [2004] 1 AC 456
• Percy v Church of Scotland Board of National Mission (2005) UKHL 73

Journal Articles

• Brazier, R. ‘Legislating about the Monarchy’ (2007) Cambridge Law Journal, 86
• Cranmer,F. Doe, N. and Harlow, A. ‘Bishops in the House of Lords: A Critical Analysis’ (2008) PL, 490
• McClean, D. ‘The Changing Legal Framework of Establishment’ (2004) Ecc. L.J. 292
• Modood, T. “Establishment, Multiculturalism and British Citizenship” (1994) 65 The Political Quarterly 53
• Morris, B. ‘Succession to the crown bill: possible untoward effects’ (2013) Ecc. L.J. , 189
• Morris, B. ‘The Future of “High” Establishment’ (2011) Ecclesiastical Law Journal, 260
• Munro, C. ‘Does Scotland have an established Church?’ 1997 4 Ecc LJ 644
• Oliva, J. ‘The Legal Protection of Believers and Beliefs in the United Kingdom’ (2007) 40 Ecc. L.J. 66
• Oliva, J. “Church, State and Establishment in the UK in the 21st Century: Anachronism or Idiosyncrasy?” (2010) Public Law, 482
• Ogilvie M.H, ‘What is a Church by Law established?’ (1990) 28 Osgoode Hall L.J. 179
• R M Morris, Church and State in 21st Century Britain, (Palgrave Macmillan Publishing 2009) 45

Legislation

• Act of Supremacy 1559
• Act of Settlement 1700
• Appointment of Bishops Act 1534
• Bishop of Manchester Act 1847
• Coronation Oath Act 1688
• Education Act 1996
• European Convention on Human Rights
• Human Rights Act 1998
• The Danish Constitution 1849
• The Prison Act 1952

Websites

• <https://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/MaryIIWilliamIIIandTheActofSettlement/TheActofSettlement.aspx> accessed 11 March 2014

1

---

[1] Oliva, J. ‘The Legal Protection of Believers and Beliefs in the United Kingdom’ (2007) 40 Ecc. L.J. 66 [2]Oliva, J. “Church, State and Establishment in the UK in the 21st Century: Anachronism or Idiosyncrasy?” (2010) Public Law, 482 [3] Ogilvie M.H, ‘What is a Church by Law established?’ (1990) 28 Osgoode Hall L.J. 179 [4] Aston Cantlow v. Wallbank [2004] 1 AC 456 [5] Oliva (n 2) [6] Oliva, J (n 2) [7] Act of Supremacy 1559 [8] Coronation Oath Act 1688 [9] Act of Settlement 1700 [10] Leigh, I. ‘By law established? The Crown, Constitutional Reform and the Church of England’ (2004) P.L. 269 [11]Oliva (n 2) [12]<https://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/MaryIIWilliamIIIandTheActofSettlement/TheActofSettlement.aspx> accessed 11 March 2014 [13] Human Rights Act 1998 [14] Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003) [15] Fabian Society (n 14) [16] Fabian Society (n 14) [17] Morris, B. ‘ Succession to the crown bill: possible untoward effects’ (2013) Ecc. L.J. , 189 [18] Morris (n 17) [19] Oliva (n 2) [20] Green Paper on the Governance of Britain published on July 3 2007 declared that the PM should not play an active role in selecting candidates [21] R M Morris, Church and State in 21st Century Britain, (Palgrave Macmillan Publishing 2009) 45 [22] Bishop of Manchester Act 1847 [23] Cranmer,F. Doe, N. and Harlow, A. ‘Bishops in the House of Lords: A Critical Analysis’ (2008) PL, 490 [24] Harlow (n 23) [25] The Wakeham Commission also proposed that 5 out of the 10 remaining seats be awarded to members of non-Christian communities [26] Harlow (n 23) [27] Oliva (n 2) [28] The Constitution Unit, University College London, Comparative Study of Second Chambers (London: University College, 2002) 35 [29] Harlow (n 23) [30] Harlow (n 23) [31] Modood, T. “Introduction: Establishment, Reform and Multiculturalism”, in Modood (ed.),Church, State and Religious Minorities, 1997 (p13) [32] Oliva (n 2) [33] Oliva (n 2) [34] Harlow (n 23) [35] Education Act 1996 s.375(3) [36] Oliva (n 2) [37] The Prison Act 1952 s.7(1) [38] Oliva (n 2) [39] McClean, D. ‘The Changing Legal Framework of Establishment’ (2004) Ecc. L.J. 292 [40] McClean (n 39) [41] R Sandberg, Law and Religion, Cambridge University Press 2011 (70) [42] Percy v Church of Scotland Board of National Mission (2005) UKHL 73 [43] Oliva (n 2) [44] Munro, C. ‘Does Scotland have an established Church?’ 1997 4 Ecc LJ 644 [45] McClean (n 39) [46] The Danish Constitution 1849,1953 (Art.4) [47] J.Oliva- Lecture Handout [48] Morris, B. ‘The Future of “High” Establishment’ (2011) Ecclesiastical Law Journal, 260 [49] Brazier, R. ‘Legislating about the Monarchy’ (2007) Cambridge Law Journal, 86 [50] Modood, T. “Establishment, Multiculturalism and British Citizenship” (1994) 65 The Political Quarterly 53 [51] European Convention on Human Rights (Art 9) “Freedom of Thought, Conscience and Religion”

Cite this page