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Religion Essays - Disestablishment of the Church of England

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Disestablishment of the Church of England

“Then render to Caesar the things that are Caesar’s; and to God the things that are God’s”

“Yesterday we asked for toleration, today we ask for religious equality; tomorrow we shall demand the disestablishment of the Church of England.”

The ambiguous position enjoyed by the Church of England in the United Kingdom is one that deserves a shrewd analysis in terms of its compatibility with the interests of liberal democracy. The current constitutional settlement has faded from the spotlight over the course of the past century despite being a highly contested issue during the late nineteenth century, due, in the most part, to other more pressing issues beginning to surface. The last time the issue was considered as a whole was in 1970 but it was observed that there was a general lack of knowledge on behalf of the British public on Church-State issues and as such the matter was left as it was. However, in a new era of equality the issue must be readdressed and rectified in the interests of democracy in an increasingly multi-faith nation. The issue transcends the awareness of the British public on the issue and should be focused on the disestablishment of the Church of England as a matter of democratic imperative. To best understand what is being compromised it is important to first outline what exactly “establishment” is, what it has afforded the Church of England and how such a settlement came into existence.

The current settlement is due in the most part to Henry VIII and his break from Rome, and a brief overview of the history of the Church of England is important to understand the nature of the subsequent laws establishing the Church by law. Henry VIII broke away from the Roman Catholic Communion due to the failure of the Pope to grant an annulment of his marriage to Katherine of Aragon. The Act of Supremacy 1534 recognised Henry as the Supreme Head of the Church of England, making the nobility swear an oath recognising his supremacy. When Elizabeth I became Queen in 1558 she had Parliament pass the Act of Supremacy in 1559 restoring the position of the Church of England but rewording the oath recognising her as the Supreme Governor of the Church, as the Bible recognises Jesus Christ as the Head of the Church.

The idea of “establishment” is one that remains difficult to define, as there was no single statute that created the settlement that remains today, rather it was a progressive approach that is best defined through the key privileges enjoyed by the Church of England. In Chapter 1 I shall outline what establishment is and seek to produce a working legal definition in order to outline the current constitutional settlement. In this chapter I shall also explore the concept of disestablishment and previous attempts to disestablish the Church of England from the late nineteenth century to as recently as January/February 2008 when the issue once again began to build momentum with a view to highlighting how previous failures fell short of achieving religious equality. The chapter shall end with an examination of the idea of secularism and how it may not only be preferable to advocate state neutrality, but also fundamental in the interests of liberal democracy.

In Chapters 2 to 4 I shall look more closely at three different elements of establishment and outline the consequent democratic deficiencies and make recommendations as to how they may best be rectified. The main privileges that characterise the established religion are; the 26 Anglican Bishops occupying ex-officio positions in the House of Lords; the role of the Monarch; and the Governance of the Church of England. Each of these issues will be dealt with in detail in an attempt to illustrate how the Church of England has been woven into the fabric of political and legal life in the United Kingdom and the subsequent problems that stem from this relationship, with particular emphasis on issues of democratic concern. To briefly identify the key problems that each of these privileges create they shall be introduced at this point in order to set the scene for the rest of this introduction.

In Chapter 2 I will address the controversial issue of the House of Lords, however, discussion is restricted solely to the twenty-six Anglican Bishops. The Archbishops of Canterbury and York; the Bishops of London, York and Winchester along with the next twenty-one bishops in order of seniority sit in the House of Lords by virtue of their position within the Church. There are issues of democracy and representation within the upper chamber; however, this is not within the remit of this paper. Attempts have been made recently to address the issues in the House of Lords with the recommendation that the number of Bishops be merely reduced to sixteen. The report also recommended that other faiths should be introduced to the Lords, an idea that will only serve to further discriminate and alienate those not in the privileged few. This privilege highlights an inequality in that one religious group has been afforded the opportunity to sit in Parliament, a privilege that should be viewed with the knowledge that the Church of England can lobby for its own interests in the corridors of power while other religious groups must lobby in the traditional way.

Chapter 3 is concerned with the Monarch and the dual role of Head of State and Supreme Governor of the Church of England, as well as the anti-Catholic sentiment in the laws on the Protestant succession. The Monarch is the Supreme Governor of the Church of England and as such must take an oath to defend the protestant faith. The Monarch is a figure of British unity and to represent a single religion is to alienate people from other faiths and the non-religious. The Act of Settlement 1700 requires a Protestant succession and as such it is forbidden to marry a Roman Catholic. This discrimination not only promotes exclusion to the people of Britain, many of whom belong to the Roman Catholic community, but also calls into question its compatibility with the Human Rights Act.

In Chapter 4 I shall look at the governance of the Church of England and how it is restricted in its own management. This Chapter will highlight the pitfalls for the Church of England itself as being by law established The Prime Minister is responsible for appointing Bishops and other senior clergy of the Church of England, a role that has been altered recently by new Prime Minister Gordon Brown who shall now merely act as a postman and pass the recommendations to the Queen. This is a time consuming process and a waste of government resources on a privilege that is enjoyed by no other religion. However, whether any other religion would campaign for this is questionable as it restricts the Church’s control over itself. This issue of governmental control is also evident in the making of Church laws. Church laws are made by Measures that must be passed by a single vote in each House of Parliament. They cannot be amended; they must simply be passed or rejected. This also concerns Human Rights and the right of the church to self-govern without government interference.

All these issues will be addressed in relation to their compatibility with the interests of liberal democracy in the United Kingdom as a whole. As a model of democracy I shall take Robert Dahl and his work on political equality. Dahl is one of the most noted commentators on political power and he provides an outline of representative democracies in Europe and a model of an ideal democracy. His observations characterised representative democracy in Europe as consisting of; government decisions and policies being accountable to locally elected politicians; free elections; freedom to stand for election; free expression; freedom of information; freedom of assembly. This analysis defines European democracy as being representative, accountable and free, in terms of human rights. His ideal model of democracy outlines what he believes a true democracy should strive to achieve, that is; effective participation; equality in voting; gaining enlightened understanding; final control of the agenda; inclusion; and fundamental rights. Dahl believes that political equality is desirable for governing a state and the only political system that derives its legitimacy and political institutions from the idea of political equality is a democracy. In order to examine what political institutions would be necessary in a democratic state he constructed an ideal concept of democracy as a basis for comparison with the actual models of democracy already in existence. To this end I shall condense the basis principles of democracy as observed by Dahl and using them to construct my own ideal model of democracy so that it may be compared with the current constitutional settlement in the United Kingdom in relation to the Church of England.

The basic principles that I have extracted from Dahl’s ideal model are; free elections; representation; participation; accountability; equality; enlightenment; inclusion; and fundamental rights. From this I have devised my own model which will be used to highlight the democratic deficits of the privileged position of the Church of England. My analysis will be based on the principles of; representation, accountability, participation; equality; inclusion; plurality; and human rights under the European Convention on Human Rights and Fundamental Freedoms.

CHAPTER 1: ESTABLISHMENT AND STATE NEUTRALITY

1.1 Establishment

The concept of “establishment” is one of great complexity which bears no single accurate definition, making it difficult to assess what exactly any disestablishment of the Church of England would entail. In order to effectively assess the current constitutional settlement it would be appropriate to explore the idea of establishment and what defines establishment in the first instance.

The Chadwick Commission provided a definition of establishment as “the laws which apply to the Church of England and not to the other churches.” Legal writer Peter W. Edge has commented that the Chadwick definition is only concerned with the Church of England, whereas the idea of establishment may be an abstract term which has simply been applied to the Church of England. By examining the Chadwick definition Edge has developed a fuller legal definition of establishment:

“A religious organisation is established where there are laws which apply to that particular religious organisation, qua that religious organisation, which do not apply to the majority of other religious organisations.”

In his definition of establishment Edge highlights that establishment, as a legal construct, is not primarily a question for the Church of England, rather, like other legal constructs it is open for debate by all members of the state, not just those which it affects directly. This opens the discussion up as an issue of national importance and thus warrants this discussion on the compatibility of “establishment of religion” with the interests of liberal democracy in the United Kingdom. To claim that a particular religion is not the religion of the majority of the population is not a sound basis for a legal discussion, however, to examine the ramifications, values and limits of a legal doctrine is a legitimate endeavour.

Edge claims that there are four main areas of the law that characterise establishment; the constitutional laws; the civil laws; the criminal laws; and fiscal and property laws. While this is indeed true it is only the first element, the constitutional laws, that shall be the focus of this paper due to the focus on constitutional reform and good governance. Law is not monolithic as it varies in form, principle and structure so to delve into the individual civil, criminal, fiscal and property laws would not be feasible under the remit of this paper.

The “laws of establishment” are not a separate category of law which has been created under one statute, rather, it was a progressive approach that may be defined through the key privileges enjoyed by the Church of England. Phillimore J commented on the current settlement:

“A Church which is established is not thereby made a department of the state. The process of establishment means that the state has accepted the Church as the religious body in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to it’s decrees, if rendered under certain legal conditions, certain civil sanctions…the Church of England is a continuous body from its earliest establishment in Saxon times.”

However, the argument that the Church of England best represents the Christian faith no longer holds any water. The National Census of 2001 indicates the following data on religious affiliation for Great Britain: 71.8 per cent Christian, 2.8 per cent Muslim, 1 per cent Hindu, 0.6 per cent Sikh, 0.5 per cent Jewish and 0.3 per cent Buddhist, whereas 15.1 per cent of the population had no religion and 7.8 per cent of people chose not to state their religion. Although almost 72 per cent of British people profess to be Christian, the Church of England represents only one of many Christian denominations in Britain. It has also been contested that these statistics are inaccurate as association with Christian denominations is based on individuals being brought up in nominally Christian households. Furthermore, it has been suggested that a decline in Church attendance represents a need to disestablish an institution that is gradually losing support and which may in turn undermine the legitimacy of a government that affords state privilege to such an institution.

The idea of disestablishment is not a new concept, indeed it was very popular at the end of the nineteenth century before other issues dominated the political agenda. However, recently there has been an emergence in the call for disestablishment and the issue is once again creeping up the agenda.

1.2 Attempts to Disestablish in the late 19th Century

By tracing a brief outline of failed attempts at disestablishment it is hoped that attention will be drawn to the significance and magnitude of disestablishing the Church of England and how the reasons for failure over a hundred years ago have no basis for opposition to any such attempt in the 21st Century. Furthermore, there is an overriding democratic imperative which should not be ignored in the light of religious equality and human rights.

The late nineteenth century represented a period of intense interest in the disestablishment of the Anglican Church in England on the basis that such disestablishment is essential in achieving religious equality. This concept was most prominent with the Nonconformists who were the frontrunners of disestablishment in the latter part of the nineteenth century.

Although disestablishment was widespread among Nonconformists there was discontent surfacing amongst the Anglican community who acknowledged that there were shortcomings in being controlled by a multi-faith House of Commons.

One reason for the failure of disestablishment in England was the historic lack of unity among Nonconformists over this issue throughout much of the nineteenth century. The Liberation Society was never successful in convincing people outside the Anglican Church that a separation of church and state was fundamental in the aspiration of religious equality.

A second reason for failure to disestablish the Anglican Church in England was the attitude of W. E. Gladstone, the Liberal leader during most of the late nineteenth century. Although Gladstone was an advocate of religious equality, as his administration’s parliamentary record showed, he was defiant in his support of the Established Church of England. Despite renegade members of the society working outside the party their failure only highlighted the importance of the support of a major political party in any attempt to legislate on disestablishment.

Although Gladstone was the driving force in disestablishing the Church in Ireland he remained persistent in his views towards the Church of England. In an attempt to weaken the call for disestablishment he addressed specific grievances against the Church of England, which in turn picked apart any argument constructed in favour of disestablishment.

Without changing his views on the Church of England, Gladstone displayed a greater tolerance for eventual disestablishment in Scotland and Wales. In 1885 he admitted that the Established Churches in both Scotland and in Wales serviced a small minority of the people and there would be no issue in allowing each nation to decide upon its own fate. But he argued that the situation in Wales was more difficult than in Scotland because the Church in Wales was organically one with the Church of England.

Possibly the most significant factor in the failure to disestablish the Church of England was because as a political issue it became overshadowed by more pressing emergent issues. Irish Home Rule destroyed any chance of disestablishment being a hot political topic in the 1885 general election, which was worsened by disagreement over the issue of Home Rule between the Nonconformists and the Liberal Party.

1.3 Recent Attempts to Disestablish

In the late 1980s and early 1990s MP Tony Benn proposed two Bills to disestablish the Church of England, the first in 1988 which only had one operative section:

“The Church of England shall cease to be established by law, and no person shall, after the passing of this Act, be appointed or nominated by Her Majesty or any other person, by virtue of any existing right of patronage, to an ecclesiastical office in the Church of England.”

He also addressed the disestablishment of the Church of England in his Commonwealth of Britain Bill in 1991 where it was proposed that the Church of England be “disestablished” and powers over doctrine and faith be transferred to the General Synod. Both Bills were unsuccessful and they highlighted what a huge operation it would be to “disestablish” the Church of England. However, complexity and length are not legitimate grounds for the government to avoid the issue, especially when democracy, the foundation of British society, is being compromised.

Current Archbishop of Canterbury, Dr Rowan Williams, has added fuel to the increasing demand for a complete disestablishment of the Church of England. Speaking on BBC Radio 4’s “World at One” he commented that adopting parts of Islamic Sharia law would help maintain social cohesion. These comments prompted an unforeseeable backlash and public uproar, in turn leaving many questioning the place of religious leaders in public life, and more specifically, the position of the Church of England as the established church. Co-director of think-tank “Ekklesia”, Jonathan Bartley, commented that: "Letting go of privilege is a far better witness to the Christian message than either clinging on to it, seeking to preserve it on a wider basis, or speaking for others rather than engaging them as equals."

A motion calling for the disestablishment of the Church of England has been listed in the House of Commons as 666. Labour MP John Austin, who has repeatedly tabled Early Day Motions urging disestablishment, put down his latest motion on January 9th 2008 as MPs debated scrapping Britain's blasphemy laws, the law of blasphemy itself representing Christian privilege protected by the law.

1.4 Secularism

Secularism is the principle of state neutrality in religious life whereby the state and its institutions grant no religious privileges to any religious group or organisation. By the very definition of secularism it is clear that the United Kingdom cannot call itself a secular state until it has cut official ties with the Church of England, to which it grants numerous religious privileges over all other religions and none. The concept of secularism does not compromise religious belief, nor does it seek to undermine a persons individual religious convictions, rather, it suggests the parameters which are acceptable in terms of religious plurality whereby an individual can manifest his or her religion. Secularism is a goal which any state that calls itself a democracy should strive to achieve and I shall outline the merits of such an objective as well as highlighting how religion in public life may undermine the interests of democracy.

Due to increasing religious pluralism in the developed west organised religion and the interests of democracy have become increasingly “uneasy bedfellows”. The existing Christian denominations must now be added to an increasing number of new cults and, more significantly, substantial Muslim and other non-European religious communities who find the existing settlement between religion and the state problematic. This growing religious plurality is evident in the United Kingdom yet the Church of England remains by law established despite its capacity to marginalize other faith groups and those of no faith. The settlement is highly discriminatory and has created an unnecessary conflict. If religion were to have no role in public life then every group would be on a level playing field with equal opportunity to influence public decisions by way of interest groups. As to those who do not belong to any religious organisation the establishment of a state religion has placed primacy on religion and thus discriminates against those who do not hold any beliefs.

One case put forward for secularity, that is the secularisation of public life, is the “Jefferson Compromise” which was defended by Richard Rorty. Rorty argues that modern democrats should privatise religion without trivialising it and that the religious experience is appropriate for what we do with our aloneness in an open and civil society where one is entitled to freedom of religious worship. He submits that a democratic polity thus has no choice but to ensure that religious believers are guaranteed their freedom to worship their God in private in return for the right of non-believers to live without religious deception within the public domains of civil society and the state. Such an argument seems logical yet the United Kingdom has failed to guarantee such rights to all its citizens. The submissions by Rorty have many merits, most prominent of these being the principle of equality whereby he outlines a pact in which each individuals own beliefs are protected through the absence of religion in public life.

Secularists believe that democracy requires the separation of church and state and that citizens be emancipated from state and ecclesiastical diktat in order that they may worship according to their conscience and ethical judgements. In the bible Jesus is quoted as saying “Render to Caesar the things that are Caesar’s; and to God the things that are God’s”. This phrase is ambiguous but essentially refers to a separation of the spiritual and the earthly realms, or, the separation of the church and the state. This presupposes an open and tolerant civil society which operates within a pluralist structure in order to avoid bitterness so that each person can enjoy religious freedom without being confined to the dogmatic beliefs and codes of conduct of others.

In a case before the European Courts the issue of secularism was addressed in relation to the wearing of a headscarf and a conflict with constitutional law. In Sahin v Turkey (2005) it was held that the Constitutional Court’s reliance on the principle of secularism was paramount in the ban on wearing religious attire and that “where the values of pluralism, respect for the rights of others and, in particular, equality before the law were taught and applied, it was understandable that the authorities should wish to preserve the secular nature of the constitution and so consider it contrary to such values to allow religious attire to be worn”. In this case it is apparent that the European Courts perceived secularism as a fundamental principle of democracy in Turkey and as such religious belief and the freedom to manifest such beliefs were secondary to the principles of democracy. I submit that in constructing any model of democracy one of the fundamental components should be state neutrality in public life. Secularism is a key concept in any democratic state and presents the only logical and fair means of protecting every persons right to individual belief and right to non belief.

CHAPTER 2: ANGLICAN BISHOPS IN THE HOUSE OF LORDS

2.1 Background

The presence of the twenty-six most senior bishops of the Church of England in the House of Lords is a precarious situation and arguably the most visible manifestation of establishment. The current constitutional settlement is a hangover of Medieval times, which predates the Reformation and reflects the historical position of Anglican bishops as prominent land owners and advisers to the Crown. Until the mid-nineteenth century the Anglican episcopate constituted a significant faction of the second chamber, however, the Diocese of Manchester Act 1847 and the subsequent Acts disestablishing the Churches of Ireland and Wales provided for the current arrangement of twenty-six bishops. Automatic membership to the chamber is associated only with the five historically pre-eminent secs of Canterbury, York, London, Durham and Winchester, while the twenty-one other seats are filled on the basis of seniority. The twenty-six seats held by the Anglican bishops are the only formal provision made for the representation of religion in the second chamber in its present form, and while other members of the House of Lords have strong links with various faith groups, and might be seen as providing de facto representation of the viewpoints and beliefs of such groups, it is only the Church of England that has seats reserved for its representatives.

It is anomalous that bishops should sit in the legislature ex officio as this results in a duplicate representation of religious views. This discriminates not only against other religions, whether they are Christian or non-Christian groups, but also against the non-religious, who, as I shall discuss in more detail later, have no formal representation based solely on being non-religious. I am not advocating that such provisions should be made, for either other religious groups or non-religious groups, rather, in the interests of plurality and equality the most logistic and ascertainable goal would be to eliminate any form of representation based solely on religion, and to that end, and within the remit of this discussion, the twenty-six seats held by the Anglican bishops should be revoked.

2.2 Proposed Reform of the House of Lords

The broader issue of reforming the House of Lords has been a hot topic throughout the last decade, and while reformation of the upper chamber is not the focus of this paper, the subsequent reports and papers published recently address the issue of the Anglican bishops in the upper chamber.

The Fifth Report of the Public Administration Select Committee has been the most radical in it’s approach to the senior bishops vis their position in the House of Lords:

“If we are serious about equipping Britain with a modern Parliament and constitution, it is time to modernise this aspect of our constitution too, and to bring to an end formal representation of the church in Parliament…we recommend that the Bishops of the Church of England should no longer sit ex officio from the time of the next general election but one.”

This report has recognised both the dated nature of our constitutional settlement and the need to get rid of the bishops in order to fully modernise Parliament. However, both the Wakeham Report and the government’s two white papers on the issue defend the position of the Church of England in Parliament. While they recommend that the bishops should remain the Wakeham Report and the 2001 White Paper agree that the number of seats so reserved should be reduced from twenty-six to sixteen, while the 2007 White Paper claims that assuming that the overall size of the House was to be reduced twenty-six Anglican bishops could not be justified.

Recommendation 1

The twenty-six Anglican Bishops in the House of Lords should cease to sit in this House on an ex officio basis

While the Wakeham Report and the White Papers agree that the number of bishops should be reduced to sixteen they diverge on their approach to accommodating representatives of other religions. The Wakeham Report recommends that 26 seats should be reserved for the religious representatives of the nations of the United Kingdom, and based on the population of each of the nations in the United Kingdom twenty-one seats should go to Christian denominations in England, and five to members representing the Christian denominations of Scotland, Northern Ireland and Wales. It recommends that of the twenty-one places reserved for Christian denominations in England, sixteen should be reserved for the Church of England. The Wakeham Report recommends that the Appointments Commission should be responsible for selecting the ten members from other Christian faith, five from England and five from Scotland, Northern Ireland and Wales collectively, and should also ensure that five seats are reserved for members of non-Christian denominations. The Report is careful to mention the significance of secular views as well as religious views, and recommends that both be accommodated in the new format of the house, however, the Report fails to make any provisions to reserve such seats for secular representatives as they have done for the religious.

The main difficulty in accepting the presence of the Anglican bishops in the upper chamber is that membership rates of the Church of England are skewered by its membership methods. Establishment has afforded the Church of England an ideology of membership which differs from any other denomination in the UK as it operates on an involuntary basis, accepting all members who do not take positive steps to set themselves outside of its community at any point in time.

Recommendation 2

The method of membership to the Church of England should be on a voluntary basis like every other denomination in the UK so to allow every person born in England the free will to either select their own religion or none at all.

Perhaps it is the case that from the outset the Wakeham Commission was restricted in its scope as the White Paper establishing the Royal Commission explicitly stated that the twenty-six Anglican bishops were to remain in the House. It states:

“The Government does not propose any change in the transitional House of Lords in the representation of the Church of England within the House. The Bishops often make a valuable contribution to the House because of their particular perspective and experience. To ensure that contribution remains available, the Government proposes to retain the present size of the Bishops' bench which we accept is justified…”

It has been claimed that this diktat must have tested the Commission’s ingenuity to the limits as to how to justify the unjustifiable.

The White Paper 2001 lacks a lot of the detail that the Wakeham Report has provided in its approach to accommodating other representatives of religion. It claims that the proposals set out by the Wakeham Report are unattainable as many other denominations and faith groups lack the hierarchical structure that would deliver readily identifiable representatives and that there are more faith groups than there are proposed seats. The White Paper simply recommends that the Appointments Commission should ensure that it appoints representatives of the other faith communities in the United Kingdom. While the 2001 White Paper does not take into account the views of the non-religious the 2007 White Paper of the House of Lords reform does mention that the government will need to give further consideration as to how to accommodate the views of other religions and none.

2.3 Problems

Should other religious groups be included in the House of Lords there is the inevitability that excluded groups would feel discriminated against, or those groups that have been included may feel that their level of representation is disproportionately small, creating factionalism within the house and possibly leading to claims of racism. The National Secular Society (“NSS”) have submitted that a “reformed” House of Lords that contained extended religious representatives would not only become unworkable, but would be distracted by sometimes strident sectarian and doctrinal arguments, and could, if it were more than minimal in number, vote en bloc and even hold the balance of power in debate over specialised issues. It follows from this that most religious doctrines oppose many of the fundamental freedoms enjoyed in the UK, such as abortion, divorce and homosexuality.

A prominent problem regarding the Anglican Bishops in the House of Lords is one that highlights a deficiency in devolution. Former Labour MP for West Lothian in Scotland Tam Dalyell coined the term “the West Lothian Question” during debate on Scottish devolution in the 1970s. Hi complaint was that he would be able to vote on affairs concerning local constituencies in England and Wales at Westminster but not on local affairs on his own constituency in Scotland. MPs from the devolved countries within the United Kingdom must sit in Westminster in order that their country can participate in matters of foreign policy, defence and taxation, as well as matters of interest solely to England and Wales as their government is the government of the United Kingdom at Westminster. On the flip side as the government for the United Kingdom is the government for England the place of Church of England Bishops may be defended. However, as the UK government holds ultimate power over all the devolved countries the bishops present a problem. The nature of devolution has allowed religious representatives from strictly one nation to have a place in the government of the UK which presides over all its nations. One is then left to wonder what possible arguments could support this democratic deficit?

One of the most prominent submissions for the inclusion of representatives of faith groups in the House of Lords is that “religious representation helps in the recognition of the part that moral, philosophical and theological considerations have to play in debating political and social issues.” This severely undermines the capacity of the other Lords Temporal in the House to adequately present such views. It is this idea that Lords Spiritual are best equipped with the necessary moral and philosophical tools, combined with the idea that Parliament is subject and accountable to a higher authority, “the Queen in Parliament under God”, that severely undermines our whole concept of democracy. The Wakeham Report notes that:

“For some of us, the presence of the Lords Spiritual is a sign that Governments are in the end accountable not only to those who elect them but also to a higher authority.”

With the utmost respect for religion, it should be said that the idea of being accountable to a higher authority is not only a view not held by a significant proportion of the population, but is also essentially an unproven and imprecise notion that could technically be equated to mythology, which is not a sound basis for an efficient system of government in the twenty-first century. This should be viewed with Dahl’s model of democracy, one fundamental element of which was enlightenement. In an age of enlightenement and scientific advances it is hoped that fact and knowledge would act as the most certain and democratically sound basis of government.

We are in an age where the idea of the supreme value of democracy, and the notion that power rests with the people, thereby rendering the idea that the Lords Spiritual are justified on the basis that they are accountable to a higher power seem somewhat of an inconsistency. It might also be suggested that such accountability to a higher authority need not rest in a Parliamentary context, rather, instead of compromising the concept of democracy such accountability can be enforced from outside Parliament. As has already been stated in Chapter 1, we live in an age where the value of democracy is rules supreme and as such accountability should lie with elected representatives alone. If accountability is a key feature of democracy then elected politicians should be accountable for their own actions to themselves alone as this is why they have been elected to office in the first instance. Accountability to a higher power does not account for the beliefs of the non-religious who cannot in good conscience live by the rules made by persons who claim to only be accountable to an abstract higher power.

While these papers do attempt to address non-religious groups they fall short of making any significant recommendations and place a premium on the views that religious groups have to present. I submit that that the current situation is discriminatory against other faith groups, and to accommodate religious views and not non-religious creates a further level of discrimination and exclusion. Religious representatives have no place in a political forum on an ex officio basis alone, that is not to say that such members have a significant contribution to make on their individual merits. If religion is mixed into our legislature then such representatives should be seen as political. Many members of the House are religious but are appointed on political merit, and as such their individual beliefs and convictions, religious or otherwise, are part of their political composition. Considering this, privilege should not be given to religious or non-religious convictions as it is only part of a political agenda.

A final concern is the prospect of the Church being pulled towards religious groups in countries with undemocratic governments and poor human rights track records. The Church of England is part of the Anglican Communion which is made up of 38 “self-governing churches.” In the past few years the Church has faced problems of being pulled towards values of the other churches of the Anglican Communion in the “global south.” The prospect of a schism was highlighted through the debate on the appointment of gay bishops which saw a split in the views of the Anglican Communion, with strong opposition coming from churches in Africa. The Church of England and its commitment to the Anglican Communion should be of no interest to anyone outside of the church, however, as it remains established by law there is a public interest in any pressures placed on the church to conform to undemocratic and human rights deprived teachings from other churches in the interests of the Archbishop of Canterbury maintaining a façade of unity. Alliances by an national church with essentially undemocratic institutions undermines the values held in the United Kingdom, where, for example, gay rights have been embraced through the Civil Partnership Act 2004.

Recommendation 3

Religion, or non-religion, should not act solely as grounds for appointing a member to the House of Lords on an ex officio basis.

CHAPTER 3: THE POSITION OF THE MONARCH

Although most of the provisions relating to the position of the Monarch are merely symbolic they are nonetheless significant as the Queen is Head of State. The most striking elements of the current constitutional settlement are: the dual role of Head of State and “Supreme Governor of the Church of England;” the Protestant succession of the throne; explicit discriminatory provisions preventing Roman Catholics ascending to the throne; religious elements in both the coronation ceremony and the coronation oath; and the role of “defender of the faith.” There is also the question of a possible breach of human rights under the European Convention of Human Rights with regard many of these issues, something that is as yet unclear as to what rights the Crown, or more specifically, Queen Elizabeth II holds as an individual with individual legal personality.

3.1 Dual Role of Head of State and Supreme Governor of the Church of England

The title of Supreme Governor is rooted in Tudor history when Henry VIII was King. At the time papal authority was the religious doctrine that presided over England, however, when the Pope refused to annul the marriage between Henry and his first wife, Katherine of Aragon, Henry took the matter into his own hands and sponsored a committee of ecclesiastical academics which declared that the Pope had usurped his authority over the Church of England. The subsequent legislation asserted Henry’s position as the Head of the Church of England. This title was altered by his daughter Queen Elizabeth I who believed that Christ alone was the head of the Church, and as such the title was altered to “Supreme Governor of the Church of England” through the Act of Supremacy 1559.

This dual role presents obvious problems in terms of both symbolism and national unity, and democracy. As a symbol of unity for the nation the Queen, the Head of State, or any subsequent monarch is required to take on the role of Supreme Governor. This is an alienating experience for any subject of the United Kingdom who does not associate with the Church of England, or any religion for that matter. Left-wing think tank group The Fabian Society undertook an in-depth analysis of the position of the Monarch in todays society and published their findings in a report. The Commission’s interpretation of “representativeness” was the underlying feature in the unpicking of the Sovereign’s public link with the Church of England:

“…[the] activities and behaviour of the office of Head of State should be characterised by inclusiveness; it should actively avoid instances of exclusivity and discrimination and should be seen to associate with all parts of…British society.”

There is a clear lack of democracy and representation if the office of Head of State inherits the role of being the head of a religious organisation. In a book by a former archbishop of York certain aspects of the established church are highlighted as being incompatible with public life. It is claimed that the established church should be the keeper of the nations conscience and uncompromisingly uphold the law of God as revealed in the Scriptures. He also comments that the church, through its leaders, should demand obedience to commands of God which are in danger either of being broken or ignored, and should protest vigorously against policy or acts which are plainly repugnant to his word. Despite this the Monarch is both leader of the Church and Head of State who must assent to any bill before it becomes an Act of Parliament. This presents problems as to conscience when authorising a new law that would be contrary to the teaching of the church.

No British Monarch has refused to give the royal stamp to a bill since Queen Anne refused to pass the Scotch Militia Bill in 1707. Of course Queen Anne ruled in the days before an emergence of fundamental freedoms and human rights, so there is much debate over the issue of Queen Elizabeth II as monarch possessing any fundamental human rights and how this may be significant for her and for the future of her work and the constitution. The issue highlights how the current settlement has inconsistencies with the concept of liberal democracy and how the roles of Head of State is incompatible with the role of Supreme Governor of the Church o England. Article 9 of the European Convention on Human Rights (ECHR), which is embedded in the Human Rights Act 1998, sets out that “[e]veryone has the right to freedom of thought , conscience and religion.” Although the Monarch acts on the advice of ministers, it is a matter of the monarch’s personal prerogative as to whether they sign the legislation as there is no constitutional requirement that approval should be given automatically. Oone of the most influential thinkers of today on the subject of the personal nature of the direct legal acts of the monarch is Professor Vernon Bogdanor who maintains that:

“[w]hen exercising the personal prerogatives, the sovereign acts in a personal capacity and not on the advice of ministers.”

To this end it can be said that the monarch acts on their own conscience and as such presents a problem as to the approval of legislation. The first layer to this problem is that the monarch is in an unfortunate position whereby authority has diminished over the years with the rise of parliamentary government and a more democratic system of legislating. It would be detrimental to the future of the monarch to refuse the passage of a bill as to do so would undermine the democratically elected government. There is therefore almost a necessity to pass any legislation put before them. However, as I have already outlined, there is no constitutional imperative to automatically pass a piece of legislation and therefore it is done on the Monarch’s conscience. This presents a conflict where a certain bill may not rest easily on the monarch’s conscience and as former Archbishop of York, Cyrill Garbett, outlined, the leaders of the church must protest vigorously against policy or acts which are repugnant to God’s word. An obvious example of this may be abortion. In 1980, some thirteen years after Queen Elizabeth II signed the Abortion Act 1967 the Church of England Board of Social Responsibility said in a statement that:

“In the light of our conviction that the foetus has the right to live and develop as a member of the human family, we see abortion, the termination of that life by the act of man, as a great moral evil.”

This obviously presented a conflict for the Queen as the church for which she is supreme governor opposed the activity that she as Head of State had the power to reject. This element of incompatibility severely restricts the Church of England as its supreme governor is unable to properly support its policies and agenda.

Such a conflict was arose in Belgium in 1990 when King Baudouin refused to sign a Bill passed by the Belgian Parliament which legalised abortion. The King wrote to the Prime Minister claiming that his conscience forbade him from giving his Assent to it, so, as a way of averting crisis, the King was declared “unable to reign” for a day and a half, during which time the council of ministers signed the law on his behalf, which is provided for in the Belgian constitution.

While the conscience of the monarch may be restricted and they may find a conflict in interests the existence of this dual leadership causes concern for any subject who does not belong to the Church of England. It is one thing to have a Head of State who is conflicted by their own morality and conscience, such was the case for King Baudouin, but the issue has far greater implications when the office of Head of State requires coherence to a particular religious group.

Recommendation 4

The roles of Head of State and Supreme Governor of the Church of England should be carried out by two separate bodies.

Recommendation 5

The Head of State should not be inhibited in the exercise of freedom of conscience.

3.2 An Oath of Allegiance?

A report led by Lord Goldsmith and published by the Ministry of Justice in March 2008 has revealed recommendations that school leavers should take an oath of allegiance to the Queen. As this paper has discussed the incompatibility of the dual role of the Queen as Head of State and Supreme Governor of the Church of England and it has highlighted the infringement on democratic values I further submit that any plans to have a school leaver swear allegiance to the Queen would be a gross breach of the fundamental right to freedom of religion as allegiance would essentially be sworn to the established religion. The issue of democratic deficit regarding devolution as discussed in Chapter Two has surfaced as politicians from Scotland and Wales would be forced to use devolved powers to prevent such an oath and a Nationalist politician in Northern Ireland claimed that an oath to Queen and Country would be “divisive and dangerous.” The issue of an oath of allegiance to the Queen or any other Head of State is not within the remit of this paper, however, any discussion on this matter should realise the limitations of such proposals so long as the Church of England remains by law established.

Recommendation 6

So long as the Monarch continues to occupy the dual role of Head of State and Supreme Governor of the Church of England any government proposals regarding an Oath of Allegiance to the Queen should be disregarded

3.3 The Protestant Succession

The legal provisions enacted to protect the protestant succession of the throne represents a period of anti-Catholicism, and in a modern context they appear to operate as a mechanism for the preservation of Christianity as the state religion, making them an easy target for those who argue that the state should be neutral in religious matters. These provisions could be said to be in direct conflict with Articles 12 and 14 of the ECHR, that is, the right to marry and found a family, and prohibiting discrimination in the employment of Convention rights on various grounds, including religion, respectively.) They forbid any heir from marrying a Roman Catholic, otherwise they shall forfeit their claim to the throne, and they secure the Protestant succession and Protestant faith. There are four main pieces of legislation that would require either amendment or repeal; Bill of Rights 1688; Coronation Oath Act 1688; Act of Settlement 1700; Act of Union with Scotland 1706; and the Accession Declaration Act 1910. I shall consider each in turn and highlight how they are incompatible with the interests of democracy by way of discrimination.

3.3.1 Bill of Rights 1688

Under James II Parliament had been prorogued and never met again until William of Orange ascended in 1688. When the Crown was conferred upon William and Mary by declaration it was published as a proclamation, which was subsequently enacted with some additions in the form of the Bill of Rights 1688. Section 1 of the Bill of Rights claims that any person who is in communion with Rome, Catholics, or any person who shall marry a Roman Catholic shall not be able to inherit the throne. This is clear discrimination and has no basis in a democratic society in the 21st Century.

Recommendation 7

Section 1 of the Bill of Rights 1688 should be repealed

3.3.2 The Coronation Oath Act 1688

This Act does not discriminate against Roman Catholics specifically but it does dictate that the coronation oath should require the monarch to uphold the laws of the protestant reformed religion established by law, and as such discriminates against all other religions and non-religions. It requires that the monarch promises to their utmost ability to:

“maintaine the Laws of God the true profession of the Gospell and the Protestant reformed religion established by law [...] and [...] preserve unto the bishops and clergy of this realm and to the churches committed to their charge all such rights and privileges as by law do or shall appertain unto them or any of them”

This places a burden on the holder of the office of Head of State to protect the laws of the Church of England, an oath that an individual belonging to any other religious group, or none, could not, with good conscience, do. This restricts and discriminates against any person not belonging to the Church of England.

Recommendation 8

S.3 of the Coronation Oath Act should be repealed.

3.3.3 Act of Settlement 1700

The Act of Settlement was deemed necessary to secure the Protestant succession following the death without heirs of Mary, the death of the then heir, Princess Anne's only surviving child, and the likelihood of William’s death without heirs. It devolved the Protestant succession onto Princess Sophia the Electress of Hanover, and her heirs, who were Protestants. The Act reaffirms the Bill of Rights in relation to persons who “shall profess the popish religion or shall marry a papist”. The Act also reiterates the necessity to be in communion with the Church of England:

“That whosoever shall hereafter come to the possession of this crown shall joyn in communion with the Church of England as by law established”

It should be noted that the two Acts of 1688 did not expressly require the monarch to be a member of the Church of England, they merely dictate that the religion should be upheld, whereas section 3 of the Act of Settlement expressly requires membership of the established Protestant religion.

Recommendation 9

Sections 2 and 3 of the Act of Settlement 1700 should be repealed.

3.3.4 Act of Union with Scotland Act 1706

Article II of this Act sets out that:

“And that all papists and persons marrying papists shall be excluded from and for ever incapable to inherit possess or enjoy the imperial crown of Great Britain and the dominions thereunto belonging or any part, thereof and in every such case the crown and government shall from time to time descend to and be enjoyed by such person being a Protestant as should have inherited and enjoyed the same in case such papist or person marrying a papist was naturally dead according to the provision for the descent of the crown of England”

This, again, reiterates the restrictions of the previous Acts with regard to discrimination against Roman Catholics and ascension to the throne. The constant legislation ensuring that the Protestant religion is protected and that Roman Catholic have no claim to the throne reflects a desperately discriminatory regime which has overstepped the limits of a democratic society, especially now that such provisions run contrary to the ECHR.

Recommendation 10

Article II of the Union with Scotland Act should be repealed.

3.3.5 Accession Declaration 1910

The most recent of the discriminatory pieces of legislation is the Accession Declaration 1910 which rewords the coronation oath but still requires the monarch to be a faithful Protestant and uphold the Protestant succession.

Recommendation 11

The Accession Declaration should be repealed.

Recommendation 12

Succession to the throne should not be based on a mandate to be in communion with any religious organisation.

Recommendation 13

Marriage to any persons belonging to a religious group other than that of the reformed Protestant religion established by law should not be a legitimate ground for disinheriting succession to the throne.

Recommendation 14

The Coronation Oath should no loner require the monarch to protect the reformed Protestant religion as established by law, or any other religion.

3.4 Change from within Parliament

The issue of Protestant succession has been directly addressed during the Prime Minister’s Question Time in December 1999, where Tony Blair was asked whether the Government intended to legislate in order to allow a member of the royal family to marry a Roman Catholic without losing their right to inherit the throne and to allow a Roman Catholic to inherit the throne. Mr Blair’s response was that:

“The Government have always stood firmly against discrimination in all its forms, including against Roman Catholics, and it will continue to do so… To bring about change to the law on succession would be a complex undertaking involving amendment or repeal of a number of items of related legislation…The Government have no plans to legislate in this area.”

3.5 The Coronation

Certain aspects of the coronation have been dealt with above, such as the coronation oath, however, the actual ceremony demands reform as it symbolises the inclusion of the established religion and the exclusion of other religions and none.

The historic school of thought behind the monarch is the “Divine Right of Kings”, and vestiges of this are clearer in Britain than in any other European Country. It is submitted that Queen Elizabeth II is the only living European Monarch to have been anointed and crowned in a traditional religious ceremony that rests on the notion of the Divine Right of Kings. The problem lies in the idea that the monarch must uphold the laws of God, relying upon God or the Church, and not the people of the democratically elected Parliament, for guidance. To extend the oath to other religious denominations and faiths, such as Prince Charles has indicated a desire to do so by being “Defender of Faith”, as opposed to the “Defender of the Faith”, would further alienate those faiths that have not been included, and more so those of no faith.

The Head of State should be concerned with preserving fundamental human rights and not the doctrine of the Church of England; the concept that the monarch is answerable only to “God” is not an acceptable principle of accountability for the Head of State, particularly one that is not elected, is not impeachable, nor otherwise accountable.

As an example of a democratic and inclusive coronation oath attention should be drawn to Albert II of the Belgian, which was simply “I swear to observe the constitution and the laws of the Belgian people and to maintain the national independence and the integrity of the territory.”

Recommendation 15

The Coronation ceremony and oath should be totally inclusive by way of exclusion of all religious elements.

CHAPTER 4: THE GOVERNANCE OF THE CHURCH OF ENGLAND

As the Established religion, the Church of England has a complex system of law making and governance which is interwoven into the law of the realm, or, national law. As such it enjoys certain privileges that are unique to its established position, but more importantly, it is severely crippled in its ability to self govern, presenting issues of democracy, or lack thereof.

4.1 Senior Ecclesiastical Appointments

The process of appointing bishops and other senior members of the Church of England is controlled by the government, with the church itself having no control over its management. The Prime Minister has a role in advising the Queen on certain appointments within the Church, such as its Bishops, as well as 28 Cathedral Deans, a small number of Cathedral Canons, and some 200 parish priests. The Crown Nominations Commission, formerly the Crown Appointments Commission, was established by the General Synod in February 1977, undertaking the role of considering vacancies in diocesan bishoprics and considering candidates for such vacancies. The Commission decides on two names which shall be submitted to the Prime Minister for consideration, which may be given in order of preference. The requirement to submit two names is statutory under the Suffragan Bishops Act 1534. It has been the convention for more than a century that the Prime Minister advises the Monarch to nominate the person named first in the petition.

This is problematic as it requires the government, elected by the whole of the United Kingdom, to spend time deciding upon the senior levels of management of one religious denomination. This system represents a bias towards both one religious denomination and the concept of religion, and a bias against both other religions and faiths, and non-religions. Government time and resources should not be consumed by such frivolous matters as religious appointments. On another level this arrangement restricts the Church of England’s autonomy and ability to self-govern as it is the government who appoints its senior members. Although the issue has, as yet, not come before the European Court of Human Rights it is quite clear that this anomaly is in breach of the ECHR. Under Article 9 of the ECHR it is declared that:

“Everyone has the right to freedom of thought, conscience and religion…[and] Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”

There is a question as to whether the Church of England has legal capacity as a collective body to bring a case before the courts in Europe in an attempt to regain a degree of autonomy. In the case of Church of X v UK it was held that a religious body did not have collective legal personality and as such was unable to raise an action. However, subsequent jurisprudence from Strasbourg has indicated that a church may exercise the rights under Article 9(1) of the ECHR as a collective body representing the views of its members, yet the reasoning for allowing an application by a religious body was left ambiguous. In ISKCON v. United Kingdom the court reasoned that the victim of planning constraints was the International Society for Krishna Consciousness, rather than the individuals who applied simultaneously. If this was applied to the current arrangement regarding ecclesiastical appointments in the Church of England it could be argued that it is the Church as a collective body which is disadvantaged, rather than individual members.

In relation to Article 9(2) ECHR this is significant as the governmental control over appointments, although “prescribed by law”, could in no way be considered as “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”. As such there is a clear contravention of Convention rights which could be remedied by raising an action collectively as “the Church of England”.

There have been recent moves on behalf of the government to remedy this anomaly through the Green Paper, “The Governance of Britain”. New Prime Minister Gordon Brown has outlined his plans to reform the current system so that only one name is passed on to the PM from the Crown Nominations Commission which he will in turn pass to the Queen, rendering the PM merely a “postman” in the process. Although this essentially removes the Prime Minister from the equation no clear guidance has been given on how exactly the reformed nomination process should work. Retaining the PM in this process is still a waste of government time and does not address the issue of the Church of England obtaining autonomy in senior appointments. The Church itself has expressed discontent with the current process of government involvement with a former Archbishop of Canterbury claiming that:

“"What is absolutely necessary is that the Church must have certain essential liberties, and among them the liberty


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