Legal framework

A few warnings are necessary before attempting to describe the legal status of religion in the UK. The United Kingdom is a composite state, made up of four distinct countries with three quite separate legal systems (for England and Wales, Scotland, and Northern Ireland). Modern legislation is often made separately for each country, and in 1999 a Scottish Parliament was restored after an interval of nearly three centuries.

Moreover, the state has no written constitution. Certain key documents and conventions are regarded as constitutional, but there is no simple list of sources of such authority. Similarly, not all law is codified; the English system in particular is based on ‘common law’, modified and supplemented by statutes. The structure of legal material and the style of legal thinking in the United Kingdom are thus rather different than elsewhere in Europe.

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. The Anglican Churches in Wales and Northern Ireland have been disestablished, however, and that in Scotland is small by comparison with the (established) Church of Scotland. The Queen, Supreme Governor of the episcopal Church of England, is also a member of the reformed, presbyterian Church of Scotland.

The laws and regulations of religious group in the United Kingdom are collected and rendered available by the Interfaith Legal Advisers Network, and housed at the Centre for Law and Religion.

D 11 September 2012    ADavid McClean

Under King Henry VIII papal authority was abrogated and royal supremacy over the English church was asserted in the Act of Supremacy 1534. The Convocations (assemblies of bishops and clergy) were obliged to obtain royal authority for their acts by the Submission of the Clergy Act of the same year. Anglican independence and a classical Anglican theology which was ‘both Catholic and Reformed’ were put in place in the ‘Elizabethan settlement’ from 1558 onwards. In Wales the Anglican dioceses were disestablished in 1920 and formed a separate Church in Wales.

In Scotland, the Reformation dates from 1560. The Scottish Parliament guaranteed the liberties of the church and its presbyterian form of government in 1592; 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. It was always a minority church, the majority of the Irish remaining Roman Catholic in allegiance.

England continues to have certain constitutional rules designed to secure the Protestant succession to the throne (Act of Settlement 1701). The sovereign is required to join in communion with the Church of England of which she is Supreme Governor, and anyone who becomes or who marries a Roman Catholic is excluded from succession to the throne. These rules reflect historical events but do not hinder the close working relationship between the Catholic Church and the other churches, or between that church and the state. The Roman Catholic Church was able to restore a hierarchy in Great Britain in 1850, although the titles of Catholic archbishops and bishops are still given a limited recognition in official British protocol.

The sovereign takes various oaths, on accession to the throne and at her coronation (which takes place within a Church of England eucharist) to protect its rights (see Coronation Oath Act 1688; Union with Scotland Act 1706). As the Church of England is in a sense a part of the state, however (for example, a number of bishops sit as members of the House of Lords), there can be no ‘concordat’ or treaty-like relationship between church and state. The Scottish position is not dissimilar: during the period of nearly three centuries during which there was no separate Scottish Parliament, the annual General Assembly of the Church of Scotland was a major forum for the expression of Scottish national feeling.

D 11 September 2012    ADavid McClean

In the absence of a written constitution there can be no formal constitutional guarantees of religious freedom. However, the UK 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. The courts are empowered to make ‘declarations of incompatibility’, i.e. they can rule that a provision in primary legislation is incompatible with the Convention.

There is little doubt that even before the European Convention, there was a recognised right to religious freedom. One encyclopaedic work on English law 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." (Halsbury’s Laws of England, vol. 14, para. 339)

D 11 September 2012    ADavid McClean

Because one church is established in England, English law about ‘the Church’ often means that body, the Church of England. No other church in England (or, with the exception of the Church of Scotland, elsewhere in the United Kingdom) has anything that the state would recognise as ‘ecclesiastical law’.

For religious bodies other than 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, and their property is held by trustees (which may be registered companies) under the ordinary secular law. They have no special status.

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; 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.

For the same sort of reason, 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 (Places of Worship Registration Act 1855). 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 can be, of course, problems in determining whether a particular body does constitute a church. The Church of Scientology wished to register a building as a place of worship, but the Court of Appeal held that this involved the assembly of persons to worship God or to do reverence to a supreme being or deity; instruction in a secular philosophy was not sufficient. A humanist body, the South Place Ethical Society, was held for similar reasons not to be entitled to charitable status; it did not exist for the advancement of religion. The Mormon church (the Church of Jesus Christ of Latter-Day Saints) would seem to qualify as a church, but its temple in England, which is only open to Mormons ‘in good standing’ especially recommended for the purpose, was held not to be a place of public religious worship for rating (local tax) purposes.

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. Anglican bishops who are members of the House of Lords cannot vote in elections for the House of Commons, but the rest of the clergy have few privileges or disabilities. There are some special provisions affecting all churches, but paradoxically the privileged position of the Church of England as an established church compromises its autonomy in a number of respects.

D 11 September 2012    ADavid McClean

The Church of England is an established church, so that its ecclesiastical law (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. 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 by virtue of the Church of England Assembly (Powers) Act 1919, commonly called the Enabling Act. The Synod consists of three houses, a House of Bishops (which has special powers in matters of doctrine), a House of Clergy and a House of Laity, the two latter each comprising some 250 elected members. All three houses must assent to any proposal, which means that the representatives of the laity have a full part in the making of canon law.

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.

The canon law of the Church of England is 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.

A more controversial limitation on the freedom of the Church is the right of the Crown, the Queen acting on the advice of the Prime Minister, to appoint the archbishops and diocesan bishops of the Church of England. This power is now qualified by the agreement between the leaders of the Church and the then government in 1977 to restrict the field from which the Crown’s choice could be made to those nominated by the Church.

The system is operated by a Crown Appointments Commission. The Commission sends two names to the Prime Minister and may indicate an order of preference. The Prime Minister decides which name to present to the Queen; he may not submit any other name, though he can chose either and can ask for more names, for example if one or both of the original nominees declines appointment.

D 11 September 2012    ADavid McClean

In Scotland, the General Assembly Act 1592 remains the statutory foundation of the presbyterian character of the reformed Church of Scotland, a church often called simply ‘the Kirk’. At the time of the union between England and Scotland, the Scottish Parliament passed the Protestant Religion and Presbyterian Church Act 1706 (‘the Act of Security’), requiring recognition of the presbyterian governance of the Church as an essential and irrevocable condition of union. (An English Act of 1706, sometimes known as the Maintenance of the Church of England Act, made equivalent provision for the position of the Church of England.)

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 accepting the separate jurisdiction of the church in spiritual matters and giving the church very considerable freedom in its government. The Act is relied on by the authorities of the Church of Scotland to resist any court action concerning its affairs.

The position of the Church of Scotland is highly anomalous in terms of the traditional categorisation of churches. It is clearly an established church, yet the Church of Scotland Act 1921 gives it such a high degree of autonomy as almost to separate church and state.

D 11 September 2012    ADavid McClean