Church Relations in the United Kingdom

8/12/2019 Church Relations in the United Kingdom

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CHURCH-STATE RELATIONS IN THEUN ITED KING DO M : A WESTMINSTER VIEW1FRANK CRANMERAssociate Mem ber, C entre for Law and Religion, Cardiff Law School;Clerk of Bills, House of Comm ons

1. I N T R O D U C T I O NIn any discussion of church-state relations in the United Kingdom, it should beremembered that there are four national Churches: the Church of England, the(Reformed) Church of Scotland, the Church in Wales (disestablished in 1920 as aresult of the Welsh Church Act 1914) and the Church of Ireland (disestablished bythe Irish Church Act 1869). The result is that two Churches are established by law(the Chu rch of England an d the Church of Scotland) and enjoy a particular consti-tutional relationship with the state, while the othe r Chu rches an d faith-commu nities(the Roman Catholics, the Free Churches, the Jews, Muslims, Hindus, Sikhs andothers) have particular rights and privileges in particular circumstances.(a )Early historyTraditionally, the interface betw een politics and the church es proceed ed o n the basisenunciated by Richard Hooker in the late sixteenth century: the church was thepeople, the people were the church, and the Sovereign, as ruler of the people, wasnaturally the ruler of the church as well: 'there is not any man of the Church ofEngland but the same man is also a member of the commonwealth; nor any mana member of the com mo nw ealth, which is not also of the Chu rch o f Englan d [.. .] noperson app ertaining to the one can be denied to be also of the other. '2As we know, this was not a uniquely English phenomenon: the same was true ofScandinavia, where the post-Reformation Churches were all established by law andplaced under the authority of the Crown, or Germany, where religious allegiancewas finally settled by the Peace of Au gsbu rg, un der w hich the state religion w ould bethat of the local ruler:cuius regio, eius religio.In Reformation Scotland, where QueenMary was a Roman Catholic, Parliament enacted the Reformed faith into statute 3and successfully asserted its right to decide on the Kirk's form of government andtheological stance.4But, as in England, it was assumed in Scotland th at there was noprivateright to practice a religion different from th at prescribed by the state.(b ) The formal place of religion in ParliamentHistorically, the United K ingd om Parliam ent has been strongly influenced by its con -nexion with the Chu rch. The H ous e of Com m on s sat in St Stephen's Chapel until itwas burned dow n in the eighteen-thirties; and each day still starts with pray ers, readby the Speaker's Chaplain in the House of Co m mo ns a nd by a bishop in the Hou se ofLords. Th e reason why Mem bers of the Ho use sit in parallel rows facing one ano ther,instead of in a horseshoe or hemicycle, is that originally the Speaker sat where the1 Thisisan edited version of a paper presented to an international conference on the Unifica-tion of Europe and the Relationship of Society, State and Church at Christ Church College,Canterbury, on13to15September2000.1shouldliketo thank Chancellor M ark Hill for read-ingthe original draft.2Richard Hooker,Lawso fEcclesiasticalPo lity,BookVIII.1.2.3Confession of Faith Ratification Act1560(Maryc 1)(Parliament of Scotland). Fortunatelyfor the Estates, Queen Marywasa minorin 1560and the Regencywasexercised by the ineffec-tual Mary of Guise as Queen Dowager.4Claim of Right1689(Will Maryc 28)(Parliament of Scotland).


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altar had been situated and the Members sat in the choir-stalls. This seating-patterntend s to enco urag e an adv ersarial rather th an con sensual style of debate, and at leastsome aspects of British parliam enta ry pra ctice probably derive from the accident tha tthe Co m m on s met regularly in a chapel rather than a secular hall .W hat the U nited Kin gdo m as a whole does not have is confessional polit ical partiesin the continental European sense. There was a t ime when working-class RomanCatholics tended to vote Labour and people in rural areas (mainly Anglicans)tended to vote Conservative. In the late nineteenth and early twentieth centuriesthere was a l ink between L iberalism an d No nconfo rmity; and there was also a strongtradition al connexion between M ethod ism and the Lab our Party, particularly in theNorth of England. But all of that has largely passed, and there is certainly no West-minster equivalent of, for example, the Dutch system of 'pillarisation', where thereare confessional political parties, confessional voluntary organisations and evenconfessional broadcasting companies.(c )Politics and the churchesTh e Christian Ch urche s and the other faith-commu nities are stil l major players inthe political and social life of the Unite d K ing do m , not jus t because of what they say,or how many people attend services, but because of what they do . The Church ofEng land and th e Rom an C atholic Chur ch run a large segment of the school system,particularly in the primary sector, and they therefore tend to be involved in anygovernment consultations on the education system. The biggest provider of socialservices outside central and local governm ent is the Salvation Arm y; thou gh a smallChurch in terms of adherents, it is immensely important in terms of its social out-reach, dealing particularly with the homeless and rough sleepers in a way whichgovernment agencies probably could not.Moreover, the general feeling am on g po liticians seems to be in favour of more involve-men t by the faith-communities rather than less. The Christian com mitment of the PrimeMinister, Tony Blair,iswell known. T he Leader of the Opposition, W illiam H ague, hasrecently called for, in effect, closer relations between the faith-com munities and govern-me nt on social policyissues.5At the dawn of the third m illennium the Churches an d themajor political partie s seem to be drawing closer together, on social issues at least.2.T H E V IE W F RO M E N G L A N D(a ) The present situationRepresentative insti tutions for the Church of England have developed piecemealsince the end of the nineteenth century throug h a process of gradual acceptance bybo th the hierarchy and P arliamen t of lay representation within Church government: 1885:cons ultative H ou ses of Laym en were elected by the diocesan conferences toconfer with the Con vocations. 1904:a consultative R epresen tative Chu rch C oun cil was established, consisting ofthe two Con vocation s sit ting together with the Hou ses of Laymen. 1919: the Chu rch of Eng land A ssembly (Powers) Act established a Natio nalAssembly, with pow er to pass M easu res for the Ch urc h which had statu tory effect,subject to parliamentary approval.5 In a speechtothe A nnual Conference of the N ational Council of Voluntary Organisations on7February2001,Mr Hague announced that, if elected, the Conservative Party wouldcreateanOffice of Civil Society which would be staffed by 'charities, faith communities and familygroups' and would report to a Cabinet Minister.


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1969: the Synodical Go vernm ent M easure inaugurated the Ge neral Synod of theChurch of England which, for the first time, was given the power to legislate byCa no n as well as by Measu re.6 1974: the Chu rch of England (W orship and D octrine ) Measu re gave Synod pow erto authorise new forms of worsh ip witho ut parliam entary approv al.However, both the Gov ernm ent a nd P arliamen t rem ain involved in the affairs of theChu rch of En gland in various ways.First , Measures of Gen eral Synod (thoug h n ot Ca no ns) are sti ll subject to approv alby Parliament. U nd er the 1919 Act, draft M easures are considered by the Ecclesi-astical Comm ittee, composed of Mem bers of Parliament and Peers, which make s arecommendation to Parliament as to whether the draft Measure is 'expedient ' orno t. In the case of disagreem ent between the Ecclesiastical Com m ittee an d the Legis-lation Com mittee of Synod there can be protracted negotiations,7while on v ery rareoccasions draft M easures have simply been rejected.8Secondly, the twenty-six senior bishops in the Church of England sit as full votingmembers of the House of Lords-and they speak and vote on 'secular' as well as'religious' issues.Thirdly, bishops, deans of cathedrals, and c ertain oth er dignitaries are still ap po intedby the Crown o n the advice, no t of the Ch urc h, bu t of the Prim e Minister. In 1976 thethen Prime M inister, James Callaghan , agreed to g reater degree of Ch urch involve-ment in the app ointm ent of diocesan bishops, throu gh the establishmen t of a Crow nAp pointm ents Comm ission to recom men d names. However, he was no t prep ared togive up h is involvement comp letely, because he felt that th ere were 'coge nt reaso nswhy the state cannot divest itself from a concern with these appointments of theestablished chur ch. Th e Sovereign mu st be able to look for advice on a m atte r of thiskind and that must mean, for a constitutional Sovereign, advice from Ministers. TheArchbishops and some of the bishops sit by right in the House of Lords, and theirnom ination mu st therefore rem ain a matter for the Prime M inister's con cern'.9A Synod W orking Party u nde r the chairma nsh ip of Sir William van Straubenzee, a for-merM P,recomm ended in1992that the Prime Minister's role in Ch urch app ointm entsshould be reduced, but the recommendations of that report have never been imple-mented.10U nde r the present system, a vacancy-in-see comm ittee of diocesan represen-tativesisappointed an d soundings are taken as to the kind of candidate that the diocesewants. Two names are transm itted from the Crow n App ointm ents C omm ission to thePrime Minister throug hhisAp pointm ents Secretary. He either sends them to the Queenwith an approp riate recomm endation or, alternatively, he may ask for further n ame s;and it is generally thoug ht that in 1997 the Prime Minister, M r Tony Blair, rejected theoriginal nom inations pu t forward for the vacant bishopric of Liv erpo ol.' '6 Synodical Go vernm ent M easure 196, s 1. The prom ulging of Ca non s had previously beenthe preserve of the House of B ishops and the Conv ocations.7 The draft Churchwardens Measure, which had been approved by General Synod in July1997 as GS 1165C and w hich was amended as a result of disagreeme nts between th e Ecclesias-tical Comm ittee and the Legislation C omm ittee finally received Royal Assent on10April2001.8 The most recent examples of rejection are the draft Appointment of Bishops Measure of1983 and the draft Clergy (Ord ination) Me asure of 1989.9 HCDeb (1975-76) 912, col 613.10 Sir William van Straubenzee et al, Senior Church Appointments (London: Church HousePublishing, 1992).

11 Seeeg Ruth Gledhill, 'Blair 's Block on Bishop may lead to Church Crisis' (The Times, 15September 1997).


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Finally, the Second Church Estates Commissioner is always a Member of Parlia-ment, and answers parliamentary questions about the work of the Church Commis-sioners and, in practice, about Church of England matters generallyeven though,strictly speaking, some of the issues raised in supplementary questions tend to beoutside his remit.(b)The current debateIn England, establishment has continued more orlesswithout protest from the timeof Henry VIII until the present. Various aspects of Church government have beenlooked atinrecent years; the last thoroughgoing reviewwas bya Commission underthe chairmanship of the Revd Professor Owen Chadwick in 1970.

12The ChadwickReport did not itself propose any radical overhaul of establishment. Overall, themajority opted for recommendations which, while distancing the Church furtherfrom the state, kept thestatus quomore orlessintact. The principal demandwasforthe church to be given more say in such matters as appointments of bishops anddeans,and the former of these was partly conceded by the changes in 1976.

Asrecentlyas 1988 it wasstill possible for Kenneth Medhurst and George Moysertosuggest tha t establishment was'not a major issue. Not only is there little pressure for disestablishment fromwithin the Church of Englanditself,thereisalso considerable support from Non-conformists for a continuing state link. Such a link is commonly perceived as avisible reminder of England's officially Christian past and the creative role thatthe churches could consequently play in national life. Thus, for the immediatefuture, radical changes seem most unlikely. What might fall within the realm ofpractical politicsisconsideration of some further loosening of the state link.'13

Whether or not thatwasan entirely accurate assessment at the time itwasmade, it isundoubtedlythe casethat the situationhaschanged since then, and therearevariousfactors-some domestic, some external-which may have contributed to this shift ofopinion.From the political point of view, thefirststhat the active membership of the Churchof England is getting smaller. There are now probably as many Roman Catholics inchurch on the average Sunday morning as there are Anglicans; and the questioninevitably arisesasto why, if it no longer comm ands the overt loyalty of the majorityof the population, the Church of England should continue to occupy what manyChristians outside it regard as a privileged position.Secondly, there is a certain amount of disquiet about the mechanism for Churchappointments. Quite apart from arguments about the procedures, some, both insideand outside politics, have started to question why the state should be involved inchurch appointments at all.Thirdly, thereisthe matter of changing religious demography. The United Kingdomnow has about one million Muslims, probably the majority of whom are nowsecond- or third-generation citizens, as well as substantial Hindu and Sikh popula-12 Owen Chadwicket al, Church and State Report of the Archbishop s Com mission (London,Ch urch Inform ation Office, 1970). The van Straubenzee W orking Party was much mo re limitedin scope.13 Kenneth M . M edhu rst and George H. Moyser, hurchand Politicsina Secular Age (Oxford,Cla rend on Press, 1988) p 365.


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tions.Recently there has been a callby aCommission on the Future of Multi-EthnicBritain, established by the Runnymede Trust, for the re-examination of establish-ment in the interests of good racerelations.Initial reportswerethat the Commissionwould call for the ending oftheprivileged position of Christianity in general and ofthe Church of England in order fully to demonstrate that the United Kingdom is amulti-cultural, multi-faith society.14In the event, the Commission's conclusion hasbeen to call for the setting up by the government ofafurther commission to makerecommendations on thelegaland constitutional aspects of the role of religioninthepublic life ofamulti-faith society.15But the political debateisstill fairly muted, and establishment still has its advocates.Frank Field MP, a former member of Synod and the dissenting member ofthevanStraubenzee Working Party in 1992, has argued strongly for retaining at least amodified form of establishment as a means of guaranteeing the openness and theo-logical pluralism oftheChurch. Field clearly regards theology as far too importanttobeleft to theologians-stilllessto Synod-andseesthelayelement in establishmentasan important counterweight to clericalism:'[o]neof the many great distinguishingmarks oftheAnglican Church [...]isthe fact tha t, because ofitscloseness to the Eng-lish nation, it has understood how much religion the English are prepared to take,whichisnot very much.'16He feels that the Anglican tradition of relatively undogmatic Christianity is in tunewith the religious temper oftheEnglish people. There is independent evidence thatothers feel the same: a survey of five hundred Church of England incumbents in1992-93 revealed serious concerns about the dangers oftheChurch falling into thehands of its activists and becoming increasingly sectarian in its approach to theneeds of the unchurched.17Finally, Field argues that any attempt to diminish the role oftheCrown in Churchappointmentswilllead to disestablishment by default. 'For what would be left of theCrown's influence if the Government were to accede to the reforms in the [vanStraubenzee] report? And if the Crown were to lose its remaining influence inappointments how could the privileges of the church, particularly its endowments,remain intact?'18His preference would be for something like the present appoint-ments system, but exercised in public.19However, there are definite signs of changing attitudes. On Monday, 18 September2000,20duringtheconstitutional affairs debate at its Annual Conference, the LiberalDemocratic Party voted in favour of the following amendment on disestablishment:

14 See,eg, Rachel Sylvester, 'Multi-Faith Coronation for Charles' (Daily Telegraph,10 April2000).15 Bikhu Parekh et al,Report of the Com mission on the Future of Multi-Ethnic Britain ( L o n d o n :Profile B ooks, 2000) p 243.16 HCDeb( 1995-96)281,col 1090.17 Ted Harrison, Members Only?(Lon don, Triangle, 1994)passim, but especially pp 112-126.18 Sir William van Straubenzee et al, Senior Church Appointments (London: Church HousePublishing, 1992) p i 15.19 In the subsequent discussion at the conference the Legal Advisor to Gen eral Sy nod, B rianHanson, pointed out that from the point of view of General Synod there was increasing dis-satisfaction with what w as perceived as undue parlia me ntary interference with draft legislationemanating from Synod.20 After the conference at which the original paper was delivered: for a report, see RachelHarden, 'Lib Dems vote to abolish Establishment Privileges' (Church Times, 22 September2000).


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sively of Church of Scotland Ministers; the special position of Parish Ministers with respect to the Marriage (Scotland)Act1977,which recognises as valid any form of ceremony which is recognised bythe Kirk 'as sufficient for the solemnisation of marriages'; and unless and until the Court of Session or the House of Lords takes a view entirelycontrary to previous decided cases,27the current freedom of the courts of the Kirkfrom judicial review.What might this mean in political terms? From 1707 to 1999 there was no separateparliament for Scotland, so the General Assembly oftheChurch of Scotland (andparticularlyitsChurch and Nation Comm ittee) tried to provideanational forum forScottish domesticissues.Prior to devolution, many Scottish M Ps would attend theAssembly for the annual Church and Nation debate as a matter of course. The pre-sent writer once askedacertain Scots MP whetherhewould be attending the debatethat year and received the classic riposte, 'Of course. I may be an atheist, but I'm aPresbyterian atheist.'Scotland is a small place, with a total population of about 5.5 million. It has twolarge Churches: the Church of Scotland and the Roman Catholic Church; and a farhigher proportion ofScotsare active Church m embers than is the case in England.Religious input into the political process tends toberather more pronounced than inEngland. One of the leading participants in the recent debate in Scotland about theproposed repeal of section28of the Local Government Act198828wasthe CardinalArchbishop of Glasgow, Thomas Winning. Equally, the Scottish C hurches tend tobe very involved in the political process by lobbying politicians on a wide range ofsocial and economic issues and giving evidence to parliamentary inquiries. Thelikelihood is that the revival of the Scottish Parliament will make the relationshipbetween politicians and the Churches even closer, not least because of simple geo-graphical proximity. As we shall see, the new Parliam ent has already begun to takeaninterestin oneparticularissueof religious and constitutional significance:theActof Settlement1700/01.294. REFORMING ESTABLISHMENT AND THE ACT OF SETTLEMENT1700/01As long ago as 1995, Archbishop John Habgood of York suggested that thereform of establishmentwasmuchmorecomplex than it appeared atfirstsight: '[t]heAct of Union between England and Scotland followed by six years the [...] Act ofSettlement and took place because of the guarantee in England of a Protestantsuccession. The whole question of unity between England and Scotland thereforecomes up.'3027 See eg Lockhart v Presbytery ofD eer (1851) 1 3D 1296 (especially per Lor d Presiden t Boyleat 1299);WightvPresbytery ofDunkeld(lSlO) 8M921(especially per Lo rd Justice Clerk M on -creiff at925);and, most recently,LoganvPresbytery of Dumbarton 1995 SLT 1228, O H .28 The Local Go vernm ent Act 1988,s28 ,debarred local authorities from promoting the teach-ing in state schools of ' th e acceptability of homosex uality as a pretended family relation ship' .It was repealed in Scotland by the Ethical Standards in Public Life etc (Scotland) Act 2000,s34 .29 The Act of Settlem ent (12 &13W ill 3, c 2) is cha pter 2 of the statut es pas sed in the session ofParliament which began on 6th Febru ary 1700 and en ded on 24 June 1701. Some autho ritiesgive the citation date as 1700, some as 1701.Th e Act w as given a shor t title retrospectively bythe Short Titles Act 1896 but without a citation date:see Ha lsbury's Laws of Englandvol 8(2),CONSTITUTIONAL LAW AND HUMAN RIGH TS, p a r a 3 5, n o te 3 .30 Ruth Gledhil l, 'Warning by Habgood on C onsti tut ion ' (The Times, 2July 1994).


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At the end of 1999 there were calls for the amendment of the Act of Settlement toremove the bar on the Sovereign from marrying a Roman Catholic.31On 2nd Dec-ember Lord Forsyth of Drumlean32moved a motion for an Address in the House ofLords, as follows:'That an Humble Address be presented to Her M ajesty praying that Her Majestymay be graciously pleased to allow that Her undoubted Prerogative and Interestmay not stand in the way of the consideration by Parliament during the presentSession ofanymeasure to remove the bar on a person who is not, or who is mar-ried to a person who is not, a Protestant to succeed to the Crown; and for con-nected purposes.'

The motion was negatived on division.33On16December the Scottish Parliamentresolved:'That the Parliament believes that the discrimination contained in the Act ofSettlement has no place in our modern society, expresses its wish tha t those dis-criminatory aspects of the Act be repealed, and affirms its view that Scottishsociety must not disbar participation in any aspect of our national life on thegrounds ofreligion,recognises that amendment or repeal raises complex consti-tutional issues, and that this is a matter reserved to[the]UK Parliament.'34

According to a report in the Sunday Times, Downing Street rejected the call foramendment.35 In the same report, however, the present Archbishop of York, DrDavid Hope, though not calling for disestablishment outright, was quoted assupporting removal of the bar: '[i]t is a very negative kind of arrangement at themoment. I cannot really see why members oftheroyal family should not be free tomarry whom they will. It is a very negative view of the Roman Catholic Church.We're living in a different age and a different climate and the arrangements shouldreflect that.'36

Obviously, suchadevelopment would ultimately open thewayforaRoman Catholicto ascend the throne and, in such an event, the position of the Monarch as SupremeGovernor of the Church of England would have to be re-examined. Not only wouldthere be implications for the establishment of the Church of England, but therewould also be wider implications for the Church of Scotland.TheAct of the Scottish Parliament of1706'for securing the true Protestan t Religionand Presbyterian Government'37confirmedtheConfession of Faith Ratification Act1690and declared that'[...] after the decease of Her present Majesty (whom God long preserve) the31 Theparticular objectionis to the Act ofSettlement(1700/01),s 2:'thatall andevery personand personsw hoshallor may takeorinheritthesaid crownbyvertueof thelimitationofthispresent Act and is or are or shallbe reconciled to orshall hold communion with the see orchurchofRomeo rshall profess thepopish religionorshall marryapapist shallbesubject tosuch incapacitiesas insuch caseorcasesare [...] provided enacteda ndestablished'.32 Lord Forsythwas theSecretaryofStateforScotlandin theprevious (Conservative) Govern-ment.33 Houseof Lords Minute(1999-2000),2December.34 Scottish Parliament Official Report(1999)3/16 col 1744.35 Christopher Morgan, 'Archbishop Opens Way to Catholic Crown' (Sunday Times, 26December1999).36 Morgan, 'Archbishop OpensWay toCatholic Crown'.37 Protestant Religionan dPresbyterian ChurchAct 1706(Anne,c6)(ParliamentofScotland),commonly knownas the 'Act ofSecurity'.


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Soveraign succeeding to Her in the Royal Government oftheKingdom of GreatBritain shall in all time coming at His or Her Accession to the Crown swear andsubscribe that they shall inviolably m aintain and preserve the foresaid Settlementofthetrue Protestant Religion with the GovernmentWorshipDiscipline right andPrivileges of this Church as above established by the Laws of this Kingdom inProsecution of the Claim of Right.And it is hereby statute and ordained that this Act of Parliament with the Estab-lishment therein contained shallbeheld and observed in alltimecomingasa Fun-damental and Essential Condition of any Treaty or Union to be concludedbetwixt the two Kingdoms without any Alteration thereof or Derogation theretoin any sort for ever.'

It was on that basis that the Scots Parliament subsequently passed the Union withEngland Act 1706;38 and the English Parliament appended the Scots ProtestantReligion and Presbyterian Church Act as a Schedule to the reciprocal Union withScotland Act 1706.39Whether the Treaty and Acts of Union are an element of unalterable 'basic law' forGreat Britain, in the sense understood by Hans Kelsen, is beyond the scope of thisarticle;40but the fact that the Presbyterian and Protestant character of the Church ofScotlandisreferred to specifically in the founding legislation of the Union seriouslycomplicatesthe issueof disestablishment, the Act of Settlement and the nature of theCoronation Oath. The distinguished constitutional historian Lord St John ofFawsley (himselfaRoman Catholic), though lending his support to the proposal inprinciple, pointed out some of the complexities of amendment in the debate on LordForsyth's motion referred to above:

'The status of the Sovereign's Coronation Oath, made in1952,isbrought into theissue.TheAddressinvolvesthe amending of not onlyonestatute, but of many, inc-luding the Act of Union with Scotland of1706.Under the Statute of Westminster1931,if the Address were to lead to legislation, that legislation would have to beapproved by all the relevant Commonwealth governments and by their parlia-ments. Therefore [...] such a major matterisbest set in train-and should be set intrain-by the Government and Opposition parties officially acting together [...]The Irish Church Act 1869 disestablished the Church of Ireland notwithstandingthe fact that this was contrary to Article V of Section1of the Union with IrelandAct 1800.42 But times have changed, and the constitutional situation as betweenEngland and Scotland at the dawn of the twenty-first centuryisquite different from38 Un ion with England Ac t 1706 (Anne, c 7) (Parliame nt of Scotland ).39 Un ion with Scotland Act 1706 (6 Ann e, c 11) (Parliam ent of E nglan d).40 An d, it should be said, a matter for debate am ong English and Scots academic lawyers goingback at least as far as A.V Dicey: see eg his Introduction to the Study of the Law of the Con-stitution (10th edn, edited with an introdu ction by E. C. S. Wade, Lo ndo n, M acm illan, 1961) atpp 65- 69, reprodu cing th e text of Dicey's 7th edn of 1908. In any case, var ious p rovisions of th eActs have been subsequently repealed. For a full table of repeals, see Hous e of Lord s Co mm it-tee for Privileges, 2nd Report ( Whether the House of Lords Bill (as amended on Report) would,if enacted,br each the provisions of the Treaty ofUnionbetween Scotland and England) HL 108-1of Session 1998-99 An nex I, Pt I, p 30. Th e repo rt is a convenient reference for the texts of themajority of the legislation surrounding the Treaty of Union.41 HLDeb( 1999-2000) 607, col 918.42 Union with Ireland A ct 1800 (39 & 40 Ge o 3, c 67) (Parliam ent of Grea t B ritain), s 1, A rt V:' that the Continuance and Preservation of the said United Church, as the established Churchof E ngland andIreland,shall be deemed a nd taken to be an essential and fundam ental part ofthe Union. '


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that of England and Ireland in the middle of the nineteenth, not least because of theeffects of the Scotland Act 1998. When the possible impact of disestablishment uponthe Union was raised by John Habgood in 1995 his views seemed (to the presentwriter at least) slightly eccentric: they do not seem so now.43

5. DISESTABLISHMENT?A fairly recent leading article inThe Tabletpointed out that no-one would includean established Church in a modern constitutional settlement. Even though the lateCardinal Hume felt that disestablishment was not a priority, '[i]n a multi-faithpluralist society, the continued special status of one particular church risks contra-dicting the principle that the machinery of state, its head, chief executive, govern-ment and legislature must represent and serve all citizens equally. The Church ofEngland is fully able to confront such a challenge and modernise-if it wantsto.'44

The Royal Commission on the Reform of the House of Lords concluded in favour ofa change in religious representation in the Upper House: instead of the presenttwenty-six Church of England bishops there should be sixteen, to whom would beaddedfivemembers to represent the other Churches in England andfiveo representthe other churches in Northern Ireland, Scotland andWales.The Commission alsocalled for at least five members to represent other faiths.45 Reactions from otherChurches have been positive; Monica Furlong relates that the Roman Catholicbishops told the Royal Commission that, subject to Papal approval and a dispensa-tion from canon 285 of theCodex Iuris Canonici1983, they could see merit in repre-sentation in a reformed Upper House.46

The most recent call for disestablishment of the Church of England was in July 2000,in a question in the House of Lords asked by Lord Dormand of Easington. Thejunior Home Office Minister, Lord Bassam of Brighton, replied that the government'would not contemplate disestablishment [...] unless the church itself wished it.'47There,in all probability, the matter rests, for the moment at least. Although the43 After deli vering this pa pe r in draf t , Idiscovered that the Legal Que st io ns Com mit te e of theChurch of Scotland's Board of Practice and Procedure had replied to an inquiry as to its posi-tion on the matter as follows:'The Committee's advice would be that the General Assembly should not oppose any reviewof the Act of Settlement within the context of the process of constitutional reform uponwhich the Government is currently engaged. Such a review should lead both to the removalof the discriminatory provisions and the identifying of solutions to the constitutional ques-tions which could thenarise.Such constitutional questions would not bear directly upon theChurch of Scotland [...] It would be a matter of regret to the Church of Scotland were aRoman Catholic sovereign to be put into a position of denying the validity of Church of Scot-land orders and of being prevented by Roman Catholic discipline from receiving communionwithin the Church of Scotland, or indeed within other protestant and reformed churches

within the United Kingdom. While these are difficult and sensitive areas, it is not beyond theability of people of good will to overcome them':Report to the General Assembly by theBoardofPracticeandProcedure(Edinburgh, May 2000) Appendix K.This,however, is a theological response, and does not address the constitutional problems ofrepeal.44 The Tablet,21st January 1998. The article was written while Cardinal Hume was still Arch-bishop of Westminster.45 See Philip Norton's untitled article in 'Religion and Public Life': The House Magazine,24April 2000, p 18.46 Monica Furlong,Cof EThe State It sIn(London, Hodder&S tough ton, 2000) p239. Theproblem of representing non-episcopal churches and other faith communities is that there aresometimes no obvious candidates who can act as permanent representatives: Churches in theReformed and Wesleyan/Holiness traditions tend to appoint Presidents or Moderators whohold office for one year only.47 HL Debates (1999-2000) 27th July, col 571.


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political debate surrounding establishment has ebbed andflowed,he experience ofthe last twenty years would suggest that successive governments have not regardedthe radical reform of church-state relations as a high priority and that evolutionarychangeismuch more likely than drastic surgery.

Church Relations in the United Kingdom

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