College of Business, Arts and Social Sciences Brunel Law School Establishment vs Disestablishment: Constitutional review and the legal framework of the Church of England Meryl Angharad Seren Dickinson Submitted in partial requirement for the Degree of Doctor of Law 2014 Abstract One of the most dynamic relationships historically has been that of the state with religion. Having been blamed for many wars and rebellions it comes as no surprise that those states continuing to model close relationships with an individual religion come under high scrutiny, especially now religious freedom plays such an important part in today’s society. Furthermore, sociological theories have developed beyond metaphysical explanations of state authority and no longer depend on spiritual or religious explanations. The UK, with two established churches, is one such state with its relationship with the Church of England especially being subjected to criticism from a number of different groups. Whether this constant criticism is justified is another story and one of the aims of this thesis is to try to unpick some of the debates that flow around the subject in order to put them into a practical context. Often, when such discussions are undertaken there are lots of arguments made as to why the Church of England should, or should not, be disestablished. Discussions on whether they retain an important place in society are made but ultimately very little said about how disestablishment may occur if this was chosen as the way forward. This thesis will aim to tackle some of these questions and will delve into the constitutional complexities in order to discover how such a procedure can be initiated, and the effect this would have on both the state and the Church of England. Future relations will also be discussed and an important consideration will be the views and effect this might have on other religions who have come to benefit from the pleural approach of the established church. Ultimately, the result will be the uncovering of the complexities of disestablishment and who, if anyone, will benefit from the process. ii Table of Contents Acknowledgments i Table of Cases ii Table of Acronyms iv Introduction The Topic 1 Aims and Objective 13 1. The British Constitution and the established Church of England 15 1.1 Understanding the British constitution 19 1.2 The constitution and the established church 29 1.3 Why this relationship does not work today 38 1.4 The Church of Scotland 45 1.5 Conclusion 49 2. Why the question of disestablishment? 51 2.1 International Instruments 54 2.2 European Union 59 2.2.1 The ECHR and religious freedom in context 60 2.2.2 The effect this has on church state relations 65 2.3 European Union 68 2.3.1 The EU’s approach to religious freedom 68 2.3.2 The impact this has on church state relations 74 2.4 Conclusion 77 3. Establishment v Disestablishment 80 3.1 Secularisation and establishment 82 3.2 Other religions and establishment 90 3.3 The Church of England and establishment 99 3.4 Conclusion 106 4. Models of state relationships and their impact on the established church 110 4.1 The effect of religion on human rights within the European public sphere 112 4.2 The separation model 120 4.3 The state church model 127 4.4 The hybrid model 133 4.5 Other models effecting establishment 139 4.6 Conclusion 143 5. If disestablishment were to occur 146 5.1 Initiating disestablishment 148 5.1.1 The Monarch 149 5.1.2 Parliament 156 5.1.3 The Church of England 164 5.2 Disestablishment in practice 170 5.3 Disestablishment and the law 175 5.4 Disestablishment and the commonwealth 178 5.5 Alternative models after disestablishment 183 5.6 Conclusion 192 Conclusion Concluding remarks 195 Future recommendations and comments 205 Bibliography 210 Acknowledgments Writing my PhD thesis has been a long and tireless journey. Those around me have had to cope with my endless mood swings, the tears and the smiles, and the constant stress that has inevitably spilt out into everyday life. I would like to thank them all for their constant patience and understanding, especially my two beautiful daughters, my mother who has never failed to be there, and my close friends who have always been there support me and push me forward whenever I have had doubts. Louise and Susan deserve a special mention for all their prayers and constant words of support. Thank you. A special thanks also goes to my supervisor, Peter, who has had to deal with my many breakdowns and distressed e-mails. Thank you for your support and patience. There are so many other academics within Brunel Law School who have aided my journey and I am incredibly grateful to all of them and cannot think of a better environment to have been in. A special thanks to Andreas, Liat, Debbie, and everyone in the Administrational team who has helped to support me. Finally, I would like to thank my fellow PhD students, Adriana, Polona and Stephanie all of whom have been there beside me, some of whom have already completed their journey and others who continue progressing through their own journey. Thank you all. i Table of Cases Aguilar v Felton 473 US 402 (1985) Asmi v Kirklees Metropolitan Council [2007] IRLR 434 (EAT) Aston Cantlow and Wilmcote with Billesley, Warwichshire, PCC v Wallbank [2003] UKHL 37 Attorney-General v Jonathan Cape [1975] 3 All ER 484 BBC v Johns [1965] Ch 32 Dahlab v Switzerland [2001] ECHR 42393/98 Darby v Sweden App. No. 11581/85 (1989) Ewida and Chaplin v United Kingdom (48420/10) [2013] I.R.L.R.231 Forbes v Eden (1867) LR 1 Sc & Div HH Sant Baba Jeet Sing Maharaj v Eastern Media Group Ltd [2010] EWHC (QB) 1294 Jackson v Attorney-General [2005] UKHL 56 Lautsi v Italy Tribunale Amministrativo Regionale Veneto, deCision No 1110, 17 MarCh 2005 Lautsi v Italy App. No. 30814/06, [2011] Eur. Ct. H.R. (G.C) Lemon v Kurtzman 403 US 602 (1971) Lynch v Donnelly 465 US 668 (1984) Marsh v Chambers 463 US 783 (1983) McCreary County, Kentucky v American Civil Liberties Union of Kentucky 545 US 844 (2005) Mueller v Allen 463 U.S. 388 (1983) R v Archbishops of Canterbury and York, ex parte Williamson The Times 9 MarCh 1994 R (on the application of E) v JFS Governing Body [2009] UKSC 15 R (on the application of X) v Headteachers and Governors of Y School [2007] EWHC 298 (Admin) R (Shabina Begum) v Headteacher and Governors of Denbigh High School[2004] EWHC 1389 R v Secretary of State for Transport ex parte Factortame (No.2) [1991] HL Re Amendment of the Constitution of Canada (1982) 125 DLR 3d 1 ii Sahin v Turkey 44774/98 [2004] S.A.S v France 43835/11 Scandrett v Dowling[1992] 27 NSWLR 483 Stone v Graham 449 US 39 (1980) Thoburn v Sunderland City Council [2002] EWHC 195 Van Oden v Perry 545 US 677 (2005) R (on the application of Watkins-Singh v Aberdare Girls High School Governors [2008] EWHC 1865 iii Acronyms CEDAW – Convention on the Elimination of Discrimination Against Woman COMECE – Commission of the Bishop’s Conference of the European Community CRC – Convention on Rights of the Child CSC – Church and Society Commission EEC – European Economic Communities ECSR – European Coal and Steel Community ECHR – European Convention on Human Rights ECtHR – European Court of Human Rights EU - European Union HRA – Human Rights Act ICCPR – International Convention on Civil and Political Rights ICESCR – International Convention on Economic, Social and Cultural Rights PCC – Parochial Church Council SACRE – Standing Advisory Council for Religious Education UK – United Kingdom UN – United Nations UNDHR – United Nation Declaration on Human Rights iv Introduction The Topic In 1961, shortly before becoming Archbishop of Canterbury, Ramsey was quoted as stating ‘you mustn’t campaign for disestablishment. I wish rather that the Church of England would become worthy of it, would be so annoying to the State that it had disestablishment forced upon it.’1 This statement was part of a move from within the church that voiced concerns about the established church’s relationship with the state and formed part of a wider debate mirroring calls from outside. This thesis aims to analyse the strength of such calls and to investigate the practicalities that would be involved in disestablishing the Church of England. Over the last century there has been much discourse concerning why this might happen and why it should happen but there are very few analytical studies on how this would happen in practical terms. This in turn limits the use of these debates should disestablishment occur. While these debates give a clear indication of how different religious and non-religious parties view the relationship between the State and the Church of England they often fail to examine the effect that removing the constitutional ties will have on the two parties. Many of these studies are, however, incredibly detailed on how the two bodies are linked, and with the introduction of international and regional human rights law, there has been a refocus on religious discrimination and freedom which has influenced a great deal of academic writing and has also affected social perceptions towards this relationship. With the added fact that religion is often blamed for causing conflicts both at national and international levels, very close state relationships with religion have come under increasing fire: real 1 Cited in Grimley ‘The Dog that didn’t Bark: the failure of disestablishment since 1927’ in Chapman, Mark, Maltby, Judith and Whyte, William The Established Church: Past, Present and Future (T&T Clark International, 2011) 39-55; also see Cumper ‘Religious Liberty in the United Kingdom’ in Van der Vyver and Witte Jr Religious Human Rights in Global Perspective: Legal Perspectives (Martinus Nijhoff Press, 1996) 1 questions are drawn as to whether an established religion allows neutral or equal treatment of religion without bias.