Content

David McClean, State and Church in the United Kingdom in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 657 - 676

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-657

Bibliographic information
State and Church in the United Kingdom David McClean The United Kingdom of Great Britain and Northern Ireland is a composite State, made up of four distinct countries, England, Wales and Scotland on the island of Great Britain, together with Northern Ireland, the six Irish counties that refused to be part of the Irish Free State when it was created in 1922. Three parts of the United Kingdom have devolved legislatures: Northern Ireland since 1922;1 Scotland and Wales since 1999.2 The Scottish Parliament has extensive powers but those aspects of the (unwritten) constitution dealing with the Crown and the Union of England and Scotland are reserved to the UK Parliament and this includes constitutional questions affecting Church and State. The Welsh Assembly has very limited powers to enact primary legislation. In the field of Church and State the complications are even greater. There is an Established Church in England (the Church of England) of which the Queen is Supreme Governor. But the Anglican churches in Wales3 and Northern Ireland4 have been disestablished, and that in Scotland, the Episcopal Church of Scotland, is small by comparison with the (Established) Church of Scotland. The Queen, Supreme Governor of an episcopal church in the southern part of her kingdom, is also a member of a reformed, presbyterian, church in the north. Because of this complexity, the reader must be aware that some statements made below will apply to the whole United Kingdom, but some to Great Britain and many only to England, or England and Wales (which for many purposes form a single unit), or Scotland. Some aspects of the situation in Northern Ireland reflect the history of Ireland as a whole. 1 The current Northern Ireland Assembly dates from the Northern Ireland Act 1998 but it has been suspended from time to time owing to continuing political difficulties in Northern Ireland. 2 Scotland Act 1998; Government of Wales Act 1998. 3 The Church in Wales, created in 1920 from the Welsh dioceses of the Church of England. 4 The Church of Ireland, whose dioceses cover the whole of Ireland and not just Northern Ireland. 657 Social Facts A question about religion was included in the censuses in 2001 and 2011, after a gap of 150 years. The 2011 statistics are set out in Table 1 below. Religious Allegiance in the UK, 2011 (percentages of total population) England Wales Scotland N Ireland UK Christianity 59.4 57.6 53.8 82.3 59.5 Islam 5.0 1.5 1.4 0.21 4.4 Other 3.7 1.2 1.2 0.69 3.3 No religion 24.7 32.1 36.7 10.1 25.7 None stated 7.2 7.6 7.0 6.8 7.2 In the earlier 2001 census, 71.6% of the UK population answered that they were Christians, a figure greeted with some surprise, as many commentators had expected a lower figure. There was a marked fall in the number of Christians recorded in 2011 and a rise in those saying that they had no religion. The Muslim share of the population rose from 2.7% in 2001 to 4.4% ten years later, and reflects immigration both in size and geographical distribution. Information about the relative strengths of the various Christian denominations is notoriously difficult to obtain and interpret.5 The information about congregations (usually represented by a building) and ministers is more reliable than the membership figures which often reflect a particular legal status. For example, the Church of England figures are only of those who register themselves on the church electoral rolls, and some other churches distinguish between the formal ‘membership’ and the much larger ‘community’. The Roman Catholic figure is of mass attendance. Even the ministerial data can be misleading: Methodism, for example, has a strong tradition of lay ‘Local Preachers’, whose numbers are not included in the Table which includes only ordained ministers. I. Table 1: 5 The statistics in the text are based on those collected from the various churches by Dr Peter Brierley and published in his UK Church Statistics 3 (2018). David McClean 658 Major Christian Denominations in the UK, 2015 Membership Congregations Ministers ENGLAND Individual churches Church of England 1,033,100 15,685 10.842 Roman Catholic Church 817,170 2,832 3,580 Methodist Church of Great Britain 184,917 4,222 1,899 Baptist Union of Great Britain 123,950 1,961 1,977 United Reformed Church 50,590 1,302 448 Groups of churches All Pentecostal churches6 343,372 3,578 7,952 All Orthodox churches7 421,290 273 320 All independent churches 161,945 2,578 1,687 WALES Church in Wales (Anglican) 46,576 1,328 441 Presbyterian/Reformed churches 23,948 734 78 Roman Catholic Church 27,070 171 262 Methodist churches 7,936 265 80 Table 2: 6 Major churches are the Elim Pentecostal Church (48,200 members) and the Assemblies of God (44,610). Also included are a large number of small Afro-Caribbean churches. 7 Greek Orthodox (208,000) form the largest group. The Orthodox figures are estimates which may not be reliable. State and Church in the United Kingdom 659 Membership Congregations Ministers SCOTLAND Church of Scotland 350,953 1,320 777 Roman Catholic Church 140,000 500 640 Episcopal Church of Scotland 28,500 293 505 NORTHERN IRELAND Roman Catholic Church 380,200 466 618 Presbyterian Church in Ireland 178,500 445 346 Church of Ireland (Anglican) 140,000 460 281 Methodist Church in Ireland 12,049 144 74 There is a sharp contrast between the membership figures given by the churches, which totalled some 5.5 million in 2015, and the 2011 census figures in which 37.5 million declared themselves to be Christian. This points to a large number of nominal, or inactive, or lapsed members who still identify themselves not just with Christianity but with a particular expression of it: as is sometimes said, they know which church it is they do not attend. For completeness, it may be noted that there are a number of adherents of non-trinitarian churches in Britain, including some 186,000 Mormons, and 136,000 Jehovah’s Witnesses. The trend in church attendance is clearly downward. The available statistics show that 9.6 % of the population of Great Britain attended church on an average Sunday in 1980 but only 5.4 % in 2015. Research by the Church of England suggests that there is a smaller drop in the number of ‘church-goers’ but they tend to attend less frequently. Baptisms show a similar trend: in 2000 baptisms equated to 48% of all births; in 2015 the figure was 32%. The proportion of marriages taking place in church has also fallen, changes in the law having made it possible for hotels and historic country houses to host civil marriages and the attendant celebrations. Most funerals are still taken by ministers of religion. David McClean 660 Historical Background The pre-Reformation Church in England, Ecclesia Anglicana, had a certain independence from Rome. Canon law in England was modified by provincial ‘constitutions’ and there were assemblies of bishops and clergy in the Convocations of Canterbury and York (which still exist as part of the General Synod, the Church of England‘s governing body). Under King Henry VIII, Papal authority was abrogated and royal supremacy over the Church of England asserted in the Act of Supremacy 1534. This first stage in the English Reformation was political rather than doctrinal, but notably under Edward VI (1547-1533) the Church adopted a more Protestant position. The Roman jurisdiction was restored on Queen Mary I’s accession in 1553 but Anglican independence and a classical Anglican theology which was ‘both Catholic and Reformed’ was put in place in the Elizabethan settlement from 1558 onwards. In Scotland, the Reformation dates from 1560. The Scottish Parliament guaranteed the liberties of the church and its presbyterian form of government in 1592;8 the latter was restored, after an episcopal interlude, in 1690. The episcopalians then formed the (Anglican) Episcopal Church of Scotland. In Ireland, English domination saw the creation of the (Anglican) Church of Ireland, finally disestablished in 1871 but retaining the ancient cathedrals and parish churches. It was always a minority church, the majority of the Irish remaining Roman Catholic in allegiance. The presence of large numbers of Scottish settlers in the north contributed not only to the continuing political difficulties but to the growth of the Presbyterian Church of Ireland which is centred in Ulster. Legal Sources The United Kingdom has no written Constitution, but there are particular Acts of Parliament that can be seen as having constitutional significance, and these include those dealing with the union of England and Scotland in 1707. In preparation for that union, the Scottish Parliament passed the Protestant Religion and Presbyterian Church Act 1706 (‘the Act of Security’), requiring that its terms be expressly declared to be a fundamental and essential condition of the Treaty of Union in all time to come. An English Act of 1706, sometimes known as the Maintenance of the Church of Eng- II. III. 8 The General Assembly Act 1592 (of the Scottish Parliament). State and Church in the United Kingdom 661 land Act, made equivalent provision for the position of the Church of England. A new Sovereign must make declarations immediately on his or her accession9 and an oath in the coronation service to maintain in the United Kingdom the Protestant Reformed Religion established by law, and to maintain and preserve inviolably the settlement of the two Established Churches. The ecclesiastical law relating to the Church of England (including its Canon law) is regarded as an integral part of the law of England. Its continuity with the pre-Reformation church is recognised in the principle that a rule of pre-Reformation ecclesiastical law can be relied upon if it is proved to have been recognised, continued and acted upon in England since the Reformation; if that test is met, the rule is treated as part of the ecclesiastical common law of England.10 From the 16th to the early 20th century, much legislation affecting the Church was passed in the usual way by Parliament. The power to make changes in this body of law is now vested in the General Synod.11 The Synod consists of three Houses, a House of Bishops (which has special powers in matters of doctrine), a House of Clergy12 and a House of Laity, the two latter each comprising some 200 elected members; all three Houses must assent to any proposal. The Synod has power to pass Measures on any matter affecting the Church of England, and a Measure has the same effect as an Act of Parliament and can amend or repeal existing Acts. In effect, the Synod enjoys some of the powers otherwise reserved exclusively to Parliament. Parliament retains some control: a Measure passed by the Synod can only be presented for the Royal Assent required to make it law if each House of Parliament resolves that this should be done; but while Parliament may (but very seldom does) reject a Measure it has no power to amend the text of a Measure. It is now recognised as a constitutional convention that legislation affecting the Church should be introduced into the General Synod and not into either House of Parliament. 9 See the Accession Declaration Act 1910 for the current text. 10 See Lord Westbury in Bishop of Exeter v Marshall (1868) LR 3 HL 17. 11 Church of England Assembly (Powers) Act 1919; Synodical Government Measure 1969. The General Synod is the successor body to the Church Assembly created by the 1919 Act. 12 The House of Bishops and the House of Clergy are technically formed by the union of the Upper and Lower Houses of the ancient Convocations of Canterbury and York, which now meet separately only occasionally. David McClean 662 The Church of England also has a body of Canons which are made by the Synod without reference to Parliament, though the formal promulgation of a new Canon requires the Royal Assent and Licence, a formal act expressing the Queen’s position as Supreme Governor of the Church of England. The legal significance of this is that the Queen will not be advised to assent to a Canon if it would conflict with English law in a wider sense. It is often necessary, therefore, for the Synod to pass two types of legislation on the same topic: a Measure which removes any legal obstacle to the making of a proposed Canon, and then the Canon itself making the desired change. In the absence of a written Constitution there can no formal constitutional guarantees of religious freedom. However, the United Kingdom was one of the first signatories of the European Convention on Human Rights and effect was eventually given to that Convention as part of the domestic law of England by the Human Rights Act 1998. The effect of the 1998 Act was that the freedoms guaranteed by the Convention, including the freedom of thought, conscience and religion in Article 9, can be relied upon in the English courts which can make ‘declarations of incompatibility’, that a provision in primary legislation is incompatible with the Convention.13 If such a declaration is made, corrective action can be taken by an order of a Government minister, but if the primary legislation in question is a Measure of the General Synod only the Synod can take the necessary action. A number of cases on freedom of religion have reached the highest court (formerly the House of Lords and now the Supreme Court of the UK); in none has an argument based on freedom of religion succeeded. In R (Williamson and others) v Secretary of State for Education and Employment14 the prohibition of corporal punishment in schools upheld as ‘necessary in a democratic society … for the protection of the rights and freedoms of others’. R (on the application of SB) v Governors of Denbigh High School15 concerned the dress of a Muslim pupil. The school had rules, drawn up after consultation with the local mosques, which allowed the wearing of the shalwar kameeze but the claimant decided that the shalwar kameeze was not an appropriate form of dress for her and wished to wear the jilbab, which covered her more fully. It was held that if there were an interference with the right guaranteed by article 9, it was justified and proportionate. In Bull 13 Human Rights Act 1998, ss. 4, 21(1). 14 [2005] UKHL 15. 15 [2006] UKHL 15. State and Church in the United Kingdom 663 v Hall16 the defendants ran a small hotel; on religious grounds they would only let double rooms to heterosexual married couples. The claimants were a same-sex couple in a civil partnership who had been refused a double room. The prohibition of direct discrimination on the grounds of their sexual orientation limited the right of the defendants to manifest their religion but was a proportionate means of achieving the legitimate aim of protecting the rights and freedoms of the claimants. A further case from Northern Ireland,17 involving the defendants’ refusal on religious grounds to bake a cake with the words ‘Support gay marriage’ will be heard by the Supreme Court in 2018. There is little doubt that even before the European Convention, there was a recognised right to religious freedom. One encyclopaedic work on the Law of England18 asserts as follows: The civil power, while exercising complete control over all estates and degrees, whether ecclesiastical or temporal, and affording all necessary protection from wrongful acts, refrains from exercising any purely spiritual functions, and, save insofar as positive law may otherwise provide, recognises and has always recognised the right of all to follow the dictates of their consciences in the religious opinion they hold. Basic Features of the Church and State System Both in England and in Scotland there is an Established Church. But the effect is very different. In England, the Church of England is closely bound up with the business of the State, so that there could be no ‘concordat’ or treaty-like relationship between Church and State. The two archbishops and 24 diocesan bishops are members of the House of Lords. Many senior church appointments involve Crown patronage, though this power is exercised by officials acting in close consultation with the church authorities; no political influence is brought to bear. So, the Crown, the Queen acting on the advice of the Prime Minister, nominates the archbishops and diocesan bishops for formal election to office. The Prime Minister agreed in 2008 always to put IV. 16 [2013] UKSC 73. 17 Lee v McArthur. The N Ireland Court of Appeal rejected the defendants’ reliance on their freedom of religion: what was otherwise direct discrimination could not be justified, in circumstances such as those of the instant case, on the basis of religious or political beliefs: [2016] NICA 55. 18 Halsbury’s Laws of England, vol 34, para 44 (2011). David McClean 664 forward to the Queen the name recommended by a Church body, the Crown Nominations Commission consisting of the two archbishops, 3 clergy and 3 lay people elected by and from the General Synod and 6 people elected by the diocese concerned. In Scotland, the Established Church has such a high degree of autonomy from the State that it can appear more like a case of separation. The background is that the nineteenth century saw a number of disputes within the Kirk, some of the most acute concerning the right of the State to intervene in church affairs to disallow church decisions and legislation. A number of separate churches came into being, most of which were re-united in 1921. To facilitate the reunion, Parliament passed the Church of Scotland Act 1921 which declares lawful the Articles Declaratory of the Constitution of the Church of Scotland in Matters Spiritual. The Articles contain a statement of the separate jurisdiction of the Church in matters spiritual and give the church very considerable freedom in its government. The key provision is Article IV: IV. This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church officebearers, receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church, the constitution and membership of its Courts, and the mode of election of its office-bearers, and to define the boundaries of the spheres of labour of its ministers and other office-bearers. Recognition by civil authority of the separate and independent government and jurisdiction of this Church in matters spiritual, in whatever manner such recognition be expressed, does not in any way affect the character of this government and jurisdiction as derived from the Divine Head of the Church alone, or give to the civil authority any right of interference with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction. The Act is relied on by the authorities of the Church of Scotland to resist any court action concerning its affairs. However, this protection is limited: State and Church in the United Kingdom 665 a contract of employment between the Church and an individual brings the matter within the jurisdiction of the civil courts.19 There remain in England certain constitutional rules directed against Roman Catholics and designed to secure the Protestant succession to the Throne. The Sovereign is required to join in communion with the Church of England of which she is Supreme Governor, and anyone who becomes a Roman Catholic is excluded from succession to the Throne; the former rule excluding anyone who married a Roman Catholic was abrogated by the Succession to the Crown Act 2013. These rules reflect historical events (and some residual popular prejudice) but do not hinder the close working relationship between the Catholic Church and the other churches, or between that Church and the State. A Papal Pro-Nuncio is accredited as part of the diplomatic corps, a situation which would have been unacceptable in past decades. Legal Status of Religious Bodies For most of the churches, all but the Church of England and the Church of Scotland, the applicable legal principles are those of the general law of charities and especially of charitable trusts. The non-Established churches are essentially organised as voluntary associations. Their Canon Law (if they use this term; most do not) has the status of a contract between their members. Property matters are generally managed through the ‘trust’, that ubiquitous device of English property law (in some cases the trustees will be a registered company), but, especially in the larger churches where some complex division of functions is required as between national and local organs of the church, this may be supplemented by a private Act of Parliament. Nor has English law a fully-developed notion of public law status or rights; the notion of a church as a ‘corporation under public law’ is meaningless to the English lawyer. There is no formal listing of churches ‘recognised’ as such by the State. Places of worship may be registered for a variety of purposes, mainly the solemnisation of marriages.20 There can, of course, be problems in determining whether a particular body does constitute a church. In a case involving the Church of Scientology, the UK Supreme Court held that, for V. 19 Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28 (allegations of sex discrimination). 20 Places of Worship Registration Act 1855. David McClean 666 the purposes of registration for conducting marriages, religion was to be described as a spiritual or non-secular belief system held by a group of adherents, which claimed to explain the place of mankind in the universe and relationship with the infinite, and to teach its adherents how they were to live their lives in conformity with the spiritual understanding associated with the belief system.21 There may be different considerations in deciding whether a body exists for the charitable purpose of ‘the advancement of religion’,22 or whether a building is a place of public religious worship for rating (local tax) purposes.23 The general position, therefore, is that the churches have the same rights as any other voluntary association to enter into contracts and hold property, to discipline their officers and members (using internal tribunals if they so wish), and to operate social welfare or other charitable (or indeed commercial) enterprises. Churches within the Political System Although a number of Church of England bishops serve in the House of Lords, they sit as ‘Lords Spiritual’ and have no political allegiance. There is no sense in which the churches are associated with any political party, except in Northern Ireland where Roman Catholics tend to support the Republican or Nationalist parties and Protestants the Unionist parties. Church and Culture Schools In England schools are either ‘maintained’ (i.e. State) schools or independent (confusingly, these are often called ‘Public Schools’). The churches were the main provider of education for many centuries, and many schools continue to have a church affiliation: within the category of maintained schools they are ‘voluntary controlled’ or ‘voluntary aided’ schools. In the VI. VII. 1. 21 R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 (Scientology passed the test). 22 Barralet v Attorney-General [1980] 3 All ER 918 (a humanist society did not). 23 Church of Jesus Christ of Latter-Day Saints v Henning (Valuation Officer) [1963] 2 All ER 733 (HL) (Mormon temple did not qualify). State and Church in the United Kingdom 667 latter group, the Church accepts responsibility for 15 per cent of the cost of any building works and has in return a stronger position on the school’s board of managers. In every maintained school the ‘basic curriculum’ includes religious education for all pupils24 and a National Curriculum comprising a range of other subjects; religious education thus enjoys a special status. England has since 1870 had non-denominational religious education in its State schools. The construction of local ‘agreed syllabuses’ is governed by a complex procedure first introduced in 1944. A conference is convened made up of four committees, each of which must consent to the syllabus. The committees represent (a) the Church of England (except in relation to an area in Wales); (b) such Christian and other religions as reflect the principal religious traditions of the area; (c) teachers‘ associations; and (d) the local educational authority.25 This procedure gives the Church of England representatives the right of veto, but they cannot insist on any element in the syllabus unacceptable to the other groups, and cannot obtain anything approaching ‘confessional’ religious teaching. Every agreed syllabus must reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.26 The School Standards and Framework Act 1998 contains provisions concerning the appointment of ‘reserved teachers’. Where a State school has ‘a religious character’ and has more than two teachers, the school must have at least one teacher appointed as competent to give religious education in accordance with the tenets of the church concerned; the numbers change with that of the total staff complement.27 In non-denominational schools, however, it is expressly provided that religious opinions or attendance or non-attendance at religious worship may not affect appointment, salary or promotion as a teacher.28 The School Standards and Framework Act 1998 also contains provisions as to religious worship in maintained schools. All pupils must take part in an act of collective worship on each school day.29 It must be ‘of a broadly Christian character’, but not distinctive of any particular Christian denomination. Not every act of worship need be Christian, as the social circum- 24 Education Act 2002, s. 80(1). 25 Education Act 1996, Sched. 31. 26 Education Act 1996, s. 375(3). 27 School Standards and Framework Act 1998, s. 58. 28 Ibid., s. 59. 29 Ibid, s. 70. It is known that this provision is not always observed. David McClean 668 stances of some areas mean that a majority of pupils may be from other faiths; but a majority of acts of worship in any school term must be.30 Churches are free to establish their own independent schools, and can use denominational forms of worship and conduct religious education in accordance with their own requirements. The churches have also made a major contribution to the training of teachers through church Colleges of Education. Many of these have now become universities and form the ‘Cathedrals Group’ of sixteen universities and colleges, mostly with Anglican but some with Roman Catholic origins. In Scotland, there is no statutory curriculum but a Government-sponsored ‘Curriculum for Excellence’ was implemented in 2010. It includes religious education. In Northern Ireland, there is a statutory curriculum, including religious education to a syllabus agreed by the four main churches in Northern Ireland. Universities There are now no religious tests for entry into any University. There are however some posts in certain Theology Faculties, notably in Oxford and Durham, which are held with canonries of a Church of England cathedral church31 and so are effectively restricted to Anglican priests. In other universities, the staff of theological faculties or departments are appointed under the usual university procedures with no Church involvement; and indeed no religious allegiance is required. Theological colleges provide ministerial training and, in some cases, other theological education (for example, distance learning programmes for lay students). Typically, a theological college is owned by a trust, but is subject to inspection by the church authorities which decide at which colleges clergy training may take place and the number of places to be taken up in this way. Increasingly, colleges are entering into relationships with local universities. The colleges remain independent but the relevant University may admit college students to its degree courses. 2. 30 Ibid, Sched. 20, para. 3. 31 In Oxford the cathedral actually stands within a college of the University and serves as the college chapel; in Durham the ancient cathedral is in the physical heart of the University area. State and Church in the United Kingdom 669 The Media The British Broadcasting Corporation, the main public service broadcaster, has long taken a major interest in religious broadcasting. For example, a daily service is broadcast each weekday morning and there are regular periods of religious programming on television (as there are in the other television channels). Radio and television stations, national and local, have religious advisory committees on which the major churches in the relevant area will have representation. This is all a matter of practice, as is the involvement of the major cathedrals in local tourist agencies. So far as licences for other radio, television and teletext operations are concerned, the Communications Act 2003 prohibits a body whose objects are wholly or mainly of a religious nature from being given certain types of licence (e.g., those for national sound broadcasting and public teletext services) and to allow such bodies to hold other licences only with the permission of the Office of Communications (‘OFCOM’) established by the Act. There are also guidelines, dating from 2009, to assist broadcasters in interpreting and applying the OFCOM Broadcasting Code, and this has a section on religious programmes. Labour Law within the Churches Under English law, as in the legislation of the European Union, not all workers are employees; some are self-employed or in the category of ‘office-holders’. To be an employee, the individual must be employed under a contract of employment; whether a contract of employment exists is discerned by examining a whole series of factors, including matters of recruitment and payment. The method of recruitment and method of payment, and the way in which such matters as the provision of clothing or tools necessary for the work, are arranged. Some office holders may well not be regarded as employed, and will therefore fall outside much employment law. Parish clergy, of all churches, are generally held to be ‘office-holders’ and not employees.32 In the Church of England, the incumbent (vicar or rector) of a parish holds ‘the benefice‘, a legal concept which includes rights to the office and its stipend and to the house provided for its holder; this is regarded as a 3. VIII. 32 Coker v Diocese of Southwark [1998] ICR 140 (CA); Sharpe v Bishop of Worcester [2015] EWCA Civ 399. David McClean 670 piece of property to which the vicar has freehold title and of which he or she cannot be deprived without due process of law, usually involving resort to the disciplinary procedures now set out in the Clergy Discipline Measure 2003. The Ecclesiastical Offices (Terms of Service) Measure 2009 and regulations made under it give Church of England clergy rights equivalent in most respects to those of an employee, but section 9(6) of the Measure states that it does not create an employment relationship between office holders and any other person. In other churches, the freehold concept does not exist, and there is more need to invoke the protection of the secular law and the issue as to employment or office-holding is more commonly raised in those churches.33 There have been similar cases involving non-Christian bodies, one concerning the granthi of a Sikh temple,34 the other a rabbi.35 The churches at present enjoy certain exemptions from the scope of anti-discrimination legislation. There are special provisions in Schedule 23 to the Equality Act 2010 exempting organisations the purpose of which is to practise or advance a religion or belief from the rules as to discrimination on the ground of religion or belief or sexual orientation so as to respect the doctrines of the religion or the strongly held religious convictions of a significant number of the religion's followers. Finances of the Churches State financial support for the churches in the United Kingdom is extremely limited. They enjoy certain advantages in common with other charities, in respect of certain tax exemptions (but not, for example, from Value Added Tax) and by an arrangement under which certain gifts by individuals to the charity also transfer to the charity the income tax paid by the donor in respect of the sum given. However, there are no payments by the State in respect of clergy stipends or pensions or of the operating costs of the churches. Although the law requires Church of England clergy to conduct weddings and funerals and a fee is fixed by law, the payment of that fee is a matter for the parties and not the State. IX. 33 President of the Methodist Conference v Parfitt [1984] QB 368 (CA); Preston (formerly Moore) v President of the Methodist Conference [2013] UKSC 29; Davies v Presbyterian Church of Wales [1986] 1 WLR 323 (HL). 34 Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309. 35 R v Jacobovits, ex parte Wachman, The Times, 8 January 1991. State and Church in the United Kingdom 671 The only State finance is in respect of the maintenance of historic buildings. This is a particular issue for the Church of England: some 13,000 of its 16,000 parish churches are ‘listed’ under the planning legislation, and 4,000 are in the highest grade, Grade I. Some 350 redundant churches of architectural or historic interest are in the care of the Churches Conservation Trust. Much of its income comes from the public but some 45% from the Government and the Church of England. Since 1978, the State has, through an agency called English Heritage, made grants towards the repair of churches (and, recently, cathedrals) in use. The Government announced in 2002 that it hoped to reduce Value Added tax on repairs to listed churches from 17.5 % to 5 %. Although this was disallowed by the European authorities, the same effect has been achieved by making grants equivalent to the proposed saving. The amount of State money remains small compared with that from Church funds. The parishes of the Church of England spend some £115million a year on the repair and maintenance of their church buildings. Religious Assistance to Public Institutions The Armed Forces, the National Health Service, and the Prison Service all employ chaplains. They are recruited from the ordained clergy of the various denominations, and in the two latter cases most are part-time. Stipends for full-time chaplains (and fees in respect of part-time chaplains) are paid by the employing service; the churches have of course paid the costs of the initial training of the clergy and provide, in various forms, pastoral oversight of their work. Matrimonial and Family Law Throughout the United Kingdom, parties wishing to marry may do so either by a religious ceremony or by a secular ceremony conducted by a State-appointed registrar of marriages at a register office or some other location (such as a hotel) licensed for the purpose. In the case of weddings in the Church of England and the Church in Wales the whole procedure, including the preliminaries as to notices and licences, is carried out by the church. In other cases a religious ceremony requires certain civil preliminaries, usually the grant of a ‘superintendent registrar’s certificate’ after notice has been given 21 days beforehand. In England (but not in Scotland X. XI. David McClean 672 where different rules apply) a non-Anglican religious ceremony must be held in a registered building (or, for historical reasons, a synagogue or a Meeting House of the Society of Friends) and registered either by the minister if he or she is authorised for the purpose or by a registrar of marriages. Same-sex marriages are now permitted in both England and Scotland, but may not take place in a church of the Church of England.36 Although the Roman Catholic Church maintains its system of diocesan tribunals to hear nullity of marriage cases, the decisions of those tribunals have no legal status in United Kingdom law. There is a matrimonial jurisdiction, equally denied direct recognition by English law, in the rabbinical courts. Provision was made to deal with some of the consequences of the existence of this jurisdiction in the Divorce (Religious Marriages) Act 2002. This sought to remedy the plight of some Jewish women who may have their marriages ended by a divorce in the civil courts but who find themselves in grave difficulty because the other spouse refuses to enter into the religious divorce procedure of a get from the rabbinical court. The Act enables the courts to issue an order that the civil divorce decree shall not be made absolute until both parties certify that the required religious procedures have been complied with.37 There is growing concern at the number of Muslim marriages taking place in mosques with no civil preliminaries. Such marriages are invalid and the wife may find that she has none of a wife’s legal rights. Criminal Law and Religion The English common law had offences of blasphemy and blasphemous libel. These have been abolished and the Racial and Religious Hatred Act 200838 created offences involving stirring up hatred against persons on religious grounds. It provides that nothing in the legislation is to be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging XII. 36 Marriage (Same Sex Couples) Act 2013; Marriage and Civil Partnership (Scotland) Act 2014. 37 Matrimonial Causes Act 1973, s.10A as inserted by the Divorce (Religious Marriages) Act 2002, s.1(1). 38 Technically making amendments to the Public Order Act 1986. State and Church in the United Kingdom 673 adherents of a different religion or belief system to cease practising their religion or belief system. Legal Status of Clergy It was formerly the case that certain of the clergy were unable to seek election to the House of Commons. The origins of this rule lay in the representation of the clergy in the Convocations of Canterbury and York rather than in Parliament, but after the union with Scotland it was put on a statutory basis. The House of Commons (Clergy Disqualification) Act 1801 barred ‘persons having been ordained to the office of priest or deacon, or being a minister of the Church of Scotland‘. This excluded not only the clergy of the Churches of England and of Scotland but also of other Anglican churches39 and of the Roman Catholic Church.40 After full consultation with the churches, the Government secured the enactment of the House of Commons (Removal of Clergy Disqualification) Act 2001 which applied to the Parliament at Westminster the position which had already been accepted in respect of the Welsh Assembly and the Scottish Parliament.41 All clergy are now eligible for election except the Anglican bishops who are members of the House of Lords. Those bishops cannot vote in elections for the House of Commons. The clergy appear to enjoy no special privilege in respect of confessional secrets. This statement rests on very limited authority beyond obiter dicta and statements of writers, and is open to challenge in that the (Anglican) Canon Law, which is seen as part of the law of the land, contains a provision, the only part of the Canons adopted in 1603 still unrepealed, forbidding disclosure of such secrets ‘except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same’, an exception which since the abolition of capital punishment for treason has no meaning.42 XIII. 39 Re MacManaway [1951] AC 161, concerning a priest of the Church of Ireland. 40 The exclusion of Roman Catholic clergy was expressly preserved by section 9 of the Roman Catholic Relief Act 1829 which removed the disqualification of Catholic laity to allow Daniel O’Connell to serve as the elected member for Co. Clare in Ireland. 41 Government of Wales Act 1998, s. 13(1)(b); Scotland Act 1998, s. 16(1)(b). 42 See R Bursell, ‘The Seal of the Confessional’ (1990) 2 Ecc LJ 84. David McClean 674 Major Developments and Trends The nature of English law, emphasised by the absence of a written Constitution, is such that changes happen slowly and incrementally, almost without anyone noticing. The gradual decline of the Christian churches has had little effect on their relationship with the State. It has also not prevented religion being prominent in public debate, principally due to the rising number of Muslims but also to the publication of a number of popular atheist books. There has been some questioning of the role of the Church of England, with some of its bishops in the House of Lords (a House itself the subject of many reform proposals). At the time of the last coronation in 1953, few questioned that it took place in the context of a Church of England Eucharist: that may not be the case again. The disclosures of child abuse by some members of the clergy have brought adverse publicity to the churches but there is no significant evidence of ‘anti-clericalism’. The churches are generally quite liked, if often ignored, and there is no immediate prospect of any radical change. XV. Bibliography Many valuable articles are to be found in the Ecclesiastical Law Journal (published by Cambridge University Press for the Ecclesiastical Law Society). Books, mainly dealing with the Anglican churches, include Law and Religion (Current Legal Issues volume 4) (ed R O’Dair and A Lewis), Oxford University Press, 2001; R. Sundberg, Religion, Law and Society, Cambridge University Press, 2014; J. Rivers, The Law of Organized Religions: Between Establishment and Secularism, Oxford University Press, 2010; N. Doe, The Legal Framework of the Church of England, Oxford University Press, 1996; M. Hill, Ecclesiastical Law (4th ed), Oxford University Press, 2018; Essays in Canon Law: a Study of the Law of the Church in Wales (ed N Doe), University of Wales Press, Cardiff, 1992; Legal Opinions Concerning the Church of England (available on the Church of England website); J. L. Weatherhead, Constitution and Laws of the Church of Scotland, Church of Scotland, 1997. XIV. State and Church in the United Kingdom 675

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Abstract

Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.

Zusammenfassung

Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.