A very English affair: establishment and human rights in an organic constitution

doi:10.1017/CBO9780511493843.008

8 - A very English affair: establishment and human rights in an organic constitution

Published online by Cambridge University Press: 07 July 2009

Charlotte Smith

Edited by

Peter Cane ,

Carolyn Evans and

Zoe Robinson

Show author details

Peter Cane: Affiliation:
Australian National University, Canberra
Carolyn Evans: Affiliation:
University of Melbourne
Zoe Robinson: Affiliation:
University of Chicago

Book contents

Get access

Summary

Introduction

This chapter seeks to address the difficulties inherent in attempts to balance the presence of an Established Church and the modern human rights framework within a single constitution. It will argue that Establishment, which demands a place for religion in the public sphere, pulls in an opposing direction to that of the human rights framework, the general tendency of which is to remove religion into the private sphere. It will be argued that there is too often little attempt to address the potential conflict between human rights and Establishment, and an attempt will be made to examine the consequences of this omission.

The focus of this chapter is upon the treatment of the Church of England within the human rights framework as implemented in the United Kingdom by the Human Rights Act 1998. In seeking to address this it will highlight the difficulties and complexities created, for those concerned with constitutional reform, by the non-documentary nature of the English constitution. It will illustrate that these difficulties and complexities are doubly present in respect of attempts to address the position of an Established Church which is itself a wide and varied body which has been subject to its own history of reform and its own internal forces.

Through an analysis of the decisions of the Court of Appeal and the House of Lords in the case of Aston Cantlow v. Wallbank this chapter will examine the consequences of the interaction of a constitutional unwillingness to address the potential conflict between the ideologies of Establishment and the human rights framework; the history and characteristics of the English constitution and the Church of England and its institutions; and the language and frameworks developed under the European Convention on Human Rights (European Convention) and implemented in domestic law by the Human Rights Act 1998.

Type: Chapter
Information: Law and Religion in Theoretical and Historical Context , pp. 157 - 185

DOI: https://doi.org/10.1017/CBO9780511493843.008 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

References

Ridley, F., “There is No British Constitution: A Dangerous Case of the Emperor's Clothes” (1988) 41 Parliamentary Affairs340Google Scholar

Sedley, S., “The Sound of Constitutional Silence” (1994) 110 Law Quarterly Review2.Google Scholar

Brazier, R., ‘How Near is a Written Constitution?’ (2001) 52 Northern Ireland Legal Quarterly3Google Scholar

McCrudden, C., ‘Northern Ireland, Belfast and the British Constitution’ in Jowell, J. and Oliver, D. (eds.), The Changing Constitution, 5th edition (Oxford University Press, 2007) at pp. 196–7.Google Scholar

Palmer, R., The Endowment and Establishment of the Church of England. An Address Delivered at Blackmoor on Monday, January 11, 1866 (London: Cassell and Co., 1886) p. 3.Google Scholar

Bell, P. M. H., Disestablishment in Ireland and Wales (London: S.P.C.K., 1969)Google Scholar

Doe, N., The Legal Framework of the Church of England: a Critical Study in a Comparative Context (Oxford: Clarendon Press, 1996)CrossRef Google Scholar

Smith, C., ‘The Church of England: Some Historical Reflections on a Constitutional Conundrum’ (2005) 56 Northern Ireland Legal Quarterly394 at 396–414Google Scholar

Avis, P., Church, State and Establishment (London: S.P.C.K., 2001).Google Scholar

Edge, P. W. and Harvey, G. (eds.), Law and Religion in Contemporary Society: Communities, Individualism and the State (Aldershot: Ashgate, 2000) p. 2.Google Scholar

Best, G. F. A., Temporal Pillars: Queen Anne's Bounty, the Ecclesiastical Commissioners and the Church of England (Cambridge University Press, 1964)Google Scholar

Brose, O., Church and Parliament: Reshaping the Church of England, 1828–1860 (Stanford, CA: Stanford University Press, 1959)Google Scholar

Thompson, K. A., Bureaucracy and Church Reform: The Organizational Response of the Church of England to Social Change, 1800–1965 (Oxford: Clarendon Press, 1970).Google Scholar

Parry, J. P. and Taylor, S., ‘Introduction: Parliament and the Church of England from the Reformation to the Twentieth Century’ (2000) 19 Parliamentary History1–13.CrossRef Google Scholar

Garbett, C. F., The Claims of the Church of England (London: Hodder and Stoughton, 1947)Google Scholar

Smith, A. L. and Dibdin, L. T., ‘The Relations of Church and State in England’ in Report of the Archbishop's Committee on Church and State (London: S.P.C.K., 1916) chapter 2Google Scholar

Medhurst, K. and Moyser, G., The Church and Politics in a Secular Age (Oxford: Clarendon Press, 1988) chapters 1 and 2Google Scholar

Palmer, R., The Defence of the Church of England against Disestablishment, 5th edition (London: Macmillan and Co., 1911) at p. 73.Google Scholar

Holland, S. L., The National Church of a Democratic State (London: Rivingtons, 1886) at p. 8.Google Scholar

Harte, D., ‘Defining the Legal Boundaries of Orthodoxy for Public and Private Religion in England’ in O'Dair, R. and Lewis, A. (eds.), Law and Religion (Oxford University Press, 2001) at p. 472.Google Scholar

Weller, P., ‘Equity, Inclusivity and Participation in a Plural Society: Challenging the Establishment of the Church of England’ in Edge, P. W. and Harvey, G. (eds.), Law and Religion in Contemporary Society pp. 53–67

Davie, G., Religion in Britain since 1945: Believing without Belonging (London: Blackwell, 1994) which can be contrasted with S. Bruce, Religion in Modern Britain (Oxford University Press, 1995)Google Scholar

Jenkins, T., ‘Two Sociological Approaches to Religion in Modern Britain’ (1996) 26 Religion331–42CrossRef Google Scholar

Chadwick, O., The Secularisation of the European Mind in the Nineteenth Century (Cambridge University Press, 1975) p. 72.Google Scholar

Arnold, T., Fragment on the Church, 2nd edition (London: B. Fellowes, 1845) at p. 11.Google Scholar

Avis, P., Church, State and Establishment (London: S.P.C.K., 2001) at p. 16Google Scholar

Medhurst, K., “The Church of England: a Progress Report” (1999) Parliamentary Affairs275–90 at 289–90CrossRef Google Scholar

Gearty, C. A., “The Holism of Human Rights: Linking Religion, Ethics and Public Life” (2004) 6 European Human Rights Law Review605–9.Google Scholar

MacIntyre, A., ‘A Partial Response to My Critics’ in Horton, J. and Mendus, S. (eds.), After MacIntyre: Critical Perspectives on the Work of Alistair MacIntyre (Notre Dame, IN: University of Notre Dame Press, 1994) p. 303.Google Scholar

Bijsterveld, S. C., ‘Religion, International Law and Policy in the Wider European Arena: New Dimensions and Developments’ in Adhar, R. J. (ed.), Law and Religion (Aldershot: Ashgate, 2000).Google Scholar

Bijsterveld, S. C., ‘Freedom of Religion: Legal Perspectives’ in O'Dair and Lewis, Law and Religion, pp. 299–310.

Cane, P., ‘Church, State and Human Rights: Are Parish Councils Public Authorities’ (2004) 120 Law Quarterly Review41–8Google Scholar

Meisel, F., ‘The Aston Cantlow Case: Blots on English Jurisprudence and the Public/Private Law Divide’ [2004] Public Law2–10Google Scholar

Oliver, D., ‘Functions of a Public Nature under the Human Rights Act’ [2004] Public Law329–51Google Scholar

Pearce, A., ‘Aston Cantlow : Chancel Repairs and the Status of Church of England Institutions’ (2003) Law and Justice151.Google Scholar

Avis, P., Church, State and Establishment (London: S.P.C.K., 2000) pp. 15–16.Google Scholar

Bradley, J., Religion, Revolution and English Radicalism: Nonconformity in Eighteenth Century Politics and Society (Cambridge University Press, 1990).CrossRef Google Scholar

Pounds, N. J. G., A History of the English Parish: the Culture of Religion from Augustine to Victoria (Cambridge University Press, 2004).Google Scholar

Bradley, J., Religion, Revolution and English Radicalism (Cambridge University Press).CrossRef

Knight, F., The Nineteenth Century Church and Society (Cambridge University Press, 1995).CrossRef Google Scholar

Oastler, R., Convocation: The Church and the People (London: C.W. Reynell, 1860) at p. 13 and E. Akroyd in Report of Church Congress (Cambridge: Deighton Bell, 1863) at p. 86.Google Scholar

Wood, C. and Rev. Davies, J. Llewelyn in Report of Church Congress (Cambridge: Deighton Bell, 1878) at pp. 116–17 and 122–4 respectivelyGoogle Scholar

Roberts, , ‘The Role of the Laity in the Church of England c1850–1885’ (D.Phil., Oxford, 1974) and Knight, The Nineteenth Century Church and Society.Google Scholar

The Report of the Archbishop's Committee on Church and State (London: S.P.C.K., 1916) at pp. 42 and 65.

Mole, , ‘The Victorian Town Parish’ (16) Studies in Church History361–71.CrossRef

Baker, J. H., ‘Lay Rectors and Chancel Repairs’ (1984) 100 Law Quarterly Review181–5Google Scholar

Rogers, D., Politics, Prayer and Parliament (London: Continuum, 2000) at chapters 11, 14.Google Scholar

Phillimore, W., The Government of the Church in Relation to the State and the Laity at Lambeth Palace Library, reprinted from the Union Review).

Medhurst, K., “The Church of England: A Progress Report” (1999) Parliamentary Affairs275–90.CrossRef Google Scholar

Behrens, J., “The Churchwardens Measure 2001” (2001) 6 Ecc. L.J.97–110.CrossRef Google Scholar