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The Future of ‘High’ Establishment

  • Bob Morris (a1)
Abstract

The present form of church establishment in England represents no more than the eroded residue of the original confessional state. The presence of non-Christian religions and the significant decline in Christian belief and observance call into question the validity of the remaining elements of establishment, though not necessarily a national mission. It is argued that, rather than wait passively on events that themselves may – carelessly – force uncomfortable outcomes, it would be better for the Church of England itself to consider its future policy and practice as a national church, should it wish to retain that role. Apparently declining to consider any unforced change, the Church shows a tendency to aimless drifting that makes it rudderless and vulnerable. Some examples of where it might constitutionally take initiatives are discussed. However, the position and behaviour of bishops in the House of Lords exemplifies a tendency to hold on, however untenably, to what it has without thinking through the implications of the politics of its situation. Now that the Church is, in practice, in charge of its own destiny, it should face up to the responsibility that its changed status implies.1

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1 This is a revised version of a paper delivered at the Ecclesiastical Law Society's Conference on Establishment, Leeds, April 2011.

2 Church and State: report of the Archbishops' Commission (London, 1970), p 2.

3 W Carr, ‘Crown and people: reflections on the spiritual dimensions of establishment’, Westminster Abbey Lecture, 16 September 2002.

4 Morris, B, ‘The future of church establishment’, (2010) 12 Ecc LJ 214.

5 Although ostensibly declaratory, the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974, which cleared the way for Roman Catholics to become Lord Chancellor, was arguably the most recent milestone in a protracted process that now leaves the prohibitions in the Act of Settlement 1701 and the Act of Union 1706 uniquely exposed.

6 Smith, C, ‘A very English affair: establishment and human rights in an organic constitution’ in Cane, P, Evans, C and Robinson, Z (eds), Law and Religion in Theoretical and Historical Context (Cambridge, 2008), p 162.

7 L Maer, The Act of Settlement and the Protestant Succession, HC Library Standard Note SN/PC/683, 24 January 2011, 10–11.

8 Bishop of Manchester, HL Deb 10 January 2010 c 1170.

9 Talk at British Academy/British Council Conference ‘Belief in Dialogue’, London, 29 March 2011.

10 HL Deb 22 July 2010 c 1181WA.

11 Bonney, N, ‘Modernising the monarchy: the oaths of office’, (2010) 81 Political Quarterly 564570. Bonney, N, ‘The monarchy, the state and religion: modernising the relationships’, (2010) 81 Political Quarterly 199204.

12 Madeley, J and Enyedi, Z (eds), Church and State in Contemporary Europe: the chimera of neutrality (London, 2003), p 2.

13 O'Beirne, M, Religion in England and Wales: findings from the 2001 Home Office Citizenship Survey, Home Office Research Study 274 (London, 2004), vii.

14 Coronation Committee of the Privy Council, 2nd Meeting Conclusions, 16 February 1953 (The National Archives LCO 6/3522). Fisher had, however, recommended that an invitation be sent to the Moderator of the Free Church Federal Council to attend the interment of George VI at Windsor: Carpenter, E, Archbishop Fisher: his life and times (Norwich, 1991), p 247.

15 Carpenter, Archbishop Fisher, p 251.

16 ‘Given the nature of the question as asked in England and Wales, the results are best understood as reflecting the broader cultural and religious background of those who responded, within which is nested an active core of membership and belief whose size varies with the particular religions.’ Beckford, J et al. , Review of the Evidence Base on Faith Communities (Office of the Deputy Prime Minister, London, 2006), p 13. See also Voas, D and Bruce, S, ‘The 2001 census and Christian identification in Britain’, (2004) 19 Journal of Contemporary Religion 2328.

17 Davie, G, Religion in Britain Since 1945: believing without belonging (Oxford, 1994).

18 Voas, D and Crockett, A, ‘Religion in Britain: neither believing nor belonging’, (2005) 39 Sociology 1128.

19 Voas, D and Ling, R, ‘Religion in Britain and the United States’, in Park, A et al. , British Social Attitudes 2009–2010: the 26th report (London, 2010), pp 6586. Interviewed before publication, Professor Voas was reported as saying: ‘The declining Christian share is largely attributable to a drift away from the Church of England’: Daily Telegraph, 16 December 2009.

20 Eg Ashworth, J, Research Matters and I Farthing, Churchgoing in the UK (Teddington, 2007).

21 Kosmin, B and Keysar, A, American Religious Identification Survey, Summary Report (Hartford, CT, 2009) and Pew Forum on Religion and Public Life, US Religious Landscape Survey (Washington, DC, 2008).

22 See generally Turner, B, Religion and Modern Society: citizenship, secularisation and the state (Cambridge, 2011).

23 Bruce, S, Secularization: in defence of an unfashionable theory (Oxford, 2011), pp 56.

24 Turner, Religion and Modern Society, p 147.

25 Ibid, p 150.

26 Myerson, D, ‘Why religion belongs in the private sphere, not the public square’ in Cane, P et al. (eds), Law and Religion in Theoretical and Historical Context (Cambridge, 2008), pp 4471.

27 Cardinal O'Brien, for example, has echoed papal words about ‘aggressive secularism’: The Guardian, 24 April 2011.

28 Trigg, R, Religion in Public Life: must religion be privatised? (Oxford, 2007).

29 McCrudden, C, ‘Religion, human rights, equality and the public sphere’, (2011) 13 Ecc LJ 26.

30 The Observer, 3 April 2011.

31 Cornford, F, Microcosmographia Academica (Cambridge, 1908), p 16.

32 Rivers, J, The Law of Organized Religions: between establishment and secularism (Oxford, 2010), p 329.

33 Laborde, C, Critical Republicanism: the hijab controversy and political philosophy (Oxford, 2008), p 85.

34 Ibid, p 85.

35 Bonney, ‘Modernising the monarchy’.

36 HL Deb 10 January 2011 cc 1169–1172.

37 See Twomey, A, ‘Changing the rules of succession to the throne’, (2011) Public Law 377400, for an account of what is involved for the non-UK realms. For an earlier, more UK-focused account, see Brazier, R, ‘Legislating about the monarchy’, (2007) 66 Cambridge Law Journal 86105.

38 Morris, R (ed), Church and State in 21st Century Britain: the future of church establishment (Basingstoke, 2009).

39 Though, as has been recently pointed out, it is an open question whether the Church of England should retain an ability to legislate by Measure for marriage law. See Roberts, N, ‘The historical background to the Marriage (Wales) Act 2010’, (2011) 13 Ecc LJ 39.

40 HL Deb 25 January 2010 cc 1211–1248.

41 HC Deb 4 February 2010 c 468.

42 Church Times, 29 January 2010.

43 As one friendly observer has put it regarding the conduct of ecclesiastical affairs: ‘The trouble with the church is that it is a constant source of embarrassment’. A Billings, Secular Lives, Sacred Hearts: the role of the church in a time of no religion (London, 2004), p 108. See also Mary Warnock's reflections on the events in Dishonest to God: on keeping religion out of politics (London, 2010).

44 And apparently also confused as to function: see Harlow, A, Cranmer, F and Doe, N, ‘Bishops in the House of Lords: a critical analysis’, (2008) Public Law 490509.

45 To Lead and to Serve: the report of the review of the See of Canterbury (London, 2001).

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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