Church and State – an idiot’s guide

When matters touching on relations between religion and the state are discussed it not infrequently happens that the terminology becomes hopelessly confused and misused – sometimes by people who really should know better. So the following is a cut-out-and-keep guide to the absolute basics of Church and State.

First, there are four separate territories in the United Kingdom: England, Northern Ireland, Scotland and Wales. (The Channel Islands and the Isle of Man are internally self-governing Crown Dependencies outside the United Kingdom.)

Secondly, England, Scotland and Wales together constitute “(Great) Britain” and all four territories together are “The United Kingdom”. (You might think that this is dead obvious – but how many times do you hear politicians getting it wrong?)

Thirdly, there are three distinct legal jurisdictions in the United Kingdom: England and Wales, Northern Ireland and Scotland – though as a result of the latest round of legislative devolution it is possible that, over time, Wales will evolve into a separate jurisdiction of its own. Sitting above them is the Supreme Court of the United Kingdom, which is the final domestic court of appeal from England and Wales and from Northern Ireland and in civil matters from Scotland (but not in Scots criminal matters except in relation to “devolution issues” under the Scotland Act 1998 – for which see Schedule 6 para 1).

Fourthly, Northern Ireland, Scotland and Wales each has a devolved domestic legislature; but legislation for the UK as a whole and for England on its own is enacted by the UK Parliament at Westminster.

Finally, the legal position of the Churches differs in each of the four countries:

  • In England the Church of England is the Church established by law: its canon law is part of the general law of England and its judicatories are part of the general system of courts – so that, for example, the Dean of the Arches and Auditor (the senior ecclesiastical judge in England: currently Charles George QC) is required to have a 10-year High Court qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,
  • In Scotland the Church of Scotland (which is a Reformed Church, not an Anglican one) is the “national Church representative of the Christian Faith of the Scottish people”: see Article III of the Articles Declaratory contained in the Schedule to the Church of Scotland Act 1921. Whether or not the Church of Scotland is “established” is a matter on which there are differing opinions – but in purely legal terms it is qualitatively different from any other religious community in Scotland.
  • In Northern Ireland there is no establishment of religion: the Church of Ireland was disestablished (in both parts of the island of Ireland) by the Irish Church Act 1869.
  • In Wales, similarly, the Welsh dioceses of the Church of England were disestablished as from March 1920 as a result of the Welsh Church Act 1914, the process of disestablishment having been interrupted by the Great War. Section 3(1) of the 1914 Act declares that “the ecclesiastical law of the Church in Wales shall cease to exist as law”; however, the Church retains a very few “hangover” features of establishment nonetheless: most notably the common law right of parishioners to marry in the parish church whether or not they are members of the C in W. 

And that is what Iain McLean calls “Key Stage 1 on Church and State”. Really very simple – but all too often confused. A recent comment piece in the Church Times by Marie-Elsa Bragg was headed Britain needs bishops in the Lords – to which I responded from my Skye address, rather mischievously, that this was presumably a misprint for “England”. And the CT, very sportingly, published my letter the following week.

But what with rows about women in the episcopate of the C of E, the proposed statutory bar on the C of E and the Church in Wales conducting same-sex marriages, the future constitutional position of Scotland and, unfortunately, the current low-level civil unrest in Northern Ireland, this is not a time to be getting the basics wrong.

7 thoughts on “Church and State – an idiot’s guide

  1. You mentioning again Marie-Elsa Bragg’s article prompts me to ask the questions when I saw your letter in the Church Times:
    * legislation for the UK as a whole (including GB) is enacted by the Parliament in Westminster (Commons and Lords);
    * are the Lords Spiritual constitutionally prevented from participating in debates about UK-as-a-whole legislation?
    * if not, do the Lords Spiritual recuse themselves from participating in debates on legislation which doesn’t affect only England?
    * if not, is there the possibility (don’t laugh, it might be possible!), that the Lords Spiritual have some wisdom or expertise which might benefit the passage of legisaltion which affects the UK as a whole?
    * if so, might we then justifiably say that “Britain needs bishops in the Lords”?

    (Not entirely mischievously asked!)

    BTW, I appreciate this blog more than I can say. It is good to have something which is so clearly and authoritatively written. But it would be better if you could set up commenting without the necessity of having a WordPress account beforehand. That’s just a fag!

    TVM

    Justin

    • Justin: No: not mischievous at all!

      The Lords Spiritual are certainly not constitutionally prevented from participating in debates about UK-as-a-whole legislation – nor, indeed, about legislation relating specifically to Scotland, Northern Ireland or Wales on matters that are not devolved. As to the extent to which they recuse themselves from participating in debates on legislation that extends beyond England, for an authoritative answer you’d have to ask them, not me; but my impression over the years has been that the bishops are not shy about participating in non-English affairs if they think that they have anything useful to contribute.

      As to “the possibility … that the Lords Spiritual have some wisdom or expertise which might benefit the passage of legislation which affects the UK as a whole”, of course they do. Please don’t get me wrong: I’m certainly not against the presence of bishops in the House of Lords – what I regard as unhelpful is the assumption that the C of E is somehow the “national Church” for the UK as a whole and the general level of sloppy thinking around the whole issue. As I’ve said elsewhere in the blog, whom would you rather have legislating: Rowan Williams or some deadbeat former MP party hack? No contest, I reckon. I’d be inclined to say “The United Kingdom has a use for bishops” rather than “Britain needs bishops” – but it’s not such a good strap-line.

      Finally, if it’s possible to set up commenting without the necessity of having a WordPress account I don’t know how – but I’ll do a bit of digging and see if there’s any way of doing it.

      • And there, in a nutshell, why I depend on your blog: clear, concise, irenic and informative (you can put that on the poster if you like!)

        I would like to see L&RUK giving the MPs debate on Women Bishops a good fisking: I have seldom read such an ill-informed collection of half-remembered Arthur Mee Whig interpretation of historical infelicities in my life. And these are the people who make law!
        http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121212/debtext/121212-0004.htm

        All strength to you!

        • I contacted my service-provider, FatCow, and the reply I got was this: “We keep the login field for the comment section in your WordPress blog for security reasons: to avoid spammers or hackers from placing comments in your blog site”.

          So I fear that, as I suspected, there’s no escaping a WordPress account if you want to comment.

  2. Pingback: Women as bishops: the House of Commons debate | Law & Religion UK

  3. Pingback: Church and State II – a further guide | Law & Religion UK

  4. Pingback: Religion and Law round up – 17th February | Law & Religion UK

Leave a Reply