Religion, Law and the Constitution

Balancing Beliefs in Britain

Javier García Oliva, Helen Hall

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138838352
• eBook ISBN: 9781317560746
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the existing constitutional and legal system in England, Wales and Scotland, through the prism of its treatment of religion and belief. The study encompasses questions of Church/state relations, but pushes far beyond these. It asks whether the approach to religion which has spread out from establishment to permeate the whole legal framework is a cause of concern or celebration in relation to individual and collective freedoms.

The primary focus of the work is the synergy between the religious dimension of the juridical system and the fundamental pillars of the Constitution (parliamentary sovereignty, the rule of law, separation of powers and human rights). Javier García Oliva and Helen Hall challenge the view that separation between public and religious authorities is the most conducive means of nurturing a free and democratic society in modern Britain.

The authors explore whether, counter-intuitively for some, the religious dynamic to the legal system actually operates to safeguard liberties, and has a role in generating an inclusive and adaptable backdrop for our collective life. They suggest that the present paradigm brings benefits for citizens of all shades of religious belief and opinion (including Atheist and Humanist perspectives), as well as secondary advantages for those with profound beliefs on non-religious matters, such as pacifism and veganism. In support of their contentions, García Oliva and Hall examine how the religious dimension of the legal framework operates to further essential constitutional principles in diverse settings, ranging from criminal to family law.

In a groundbreaking move, the authors also set the legal discussion alongside its social and cultural context. They consider how the theological perspectives of the larger faith traditions might influence members' ideas around the key constitutional precepts, and they include extracts from interviews which give the personal perspective of more than 100 individuals on contemporary issues of law and religious freedom. These voices are drawn from a range of fields and positions on faith. While the authors are at pains to stress that these sections do not support or advance their legal or theological conclusions, they do provide readers with a human backdrop to the discussion, and demonstrate its crucial importance in twenty-first century Britain.

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1 Church/state relations and their historical evolution

Whale knees or penguin wings?

1.1 Introduction

How does the law of Great Britain relate to religion and belief, and is its approach fitting for a liberal democracy in the twenty-first century? One of the main questions at the heart of our study is whether a constitution with a religious dimension can be desirable, or even defensible, in the contemporary world. In searching for a meaningful answer, it is vital to begin with some consideration of how both the overall legal framework and the UK Constitution have developed over the course of history, and also what the evolutionary process has left behind. The present complexity and idiosyncrasy of Great Britain only make sense in light of the events which have shaped it.

It is also helpful to note at the very outset that, unlike many other jurisdictions, there is no ‘bright line’ between constitutional and general law in the British setting, and that the stories of these strands of legal development are inseparably bound together. Therefore, whilst this book encompasses far more than a purely constitutional discussion, our intention is to use the constitutional structure as scaffolding around which our investigation can be built. For this reason, we shall start our journey with some consideration of the way in which the Constitution has formed over time. It goes without saying that historical context is crucial to understanding any complex situation with a political aspect, but it is especially pressing for our purposes because:

1 The journey of legal and political evolution has a particular importance within an uncodified constitutional regime.

2 The existing literature has tended to address either Church history or the constitutional framework. Our analysis is different, because it focuses specifically on the religious dimension of the Constitution. Neither the religious nor the constitutional dynamic is squeezed out of the limelight in the course of the study.

3 For the most part, previous academic discussion has tended to concentrate on one component nation within what is now Great Britain. This work attempts to give appropriate weight to all three nations.

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The first and third of these factors are closely linked. In order to properly explore the issues around a religious constitution in a British context, it is necessary to examine the very different ways in which various religious threads are interwoven within the unique legal and social fabric of each national setting. What emerges in all three cases is a colourful patchwork quilt, regrettably spattered with a few dubious stains, and the constitutional quilt as a whole makes sense only in light of its component panels and splotches. Furthermore, there are numerous very contemporary challenges which have their roots in centuries-old tensions. On many occasions we have to look back in order to imagine the way forward.

For these reasons, our study begins with some discussion of the process by which the current situation evolved. Moreover, as stressed within point one above, the absence of a codified constitution does give the path of evolutionary development an even greater significance.

Admittedly, it is possible to exaggerate the difference between codified and non-codified regimes in this respect. In reality, codified constitutions do not appear magically overnight, any more than non-codified ones do. The original drafters who framed what have become long-standing codified constitutions, like that of the United States of America,¹ were inevitably very heavily influenced by pre-existing philosophical ideas and political realities. Nor are successful codified constitutions static. If allowed to ossify, they are liable to shatter, rather than bend, when pushed and pulled by a shifting political landscape. Consider, for instance, the response within Japan to attacks by Islamic extremists on citizens abroad in early 2015.² This sparked questions in relation to Article 9 of the Japanese Constitution, which prohibits both the use of force to settle international disputes and the maintenance of regular armed forces.³ Even a constitutional pillar as fundamental for a particular system as pacifism has been for post-war Japan is still open to being revisited, remoulded, and potentially even abolished, in response to a changing world.

Consequently, it would be inaccurate to state that the British Constitution is the product of evolution because it is uncodified. However, its uncodified nature does nevertheless add a heightened significance to the evolutionary process. As expressed in a House of Commons briefing note on constitutional reform, the absence of a codification means that there is no clear and universal definition of what amounts to constitutional change.⁴

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This means that developments have to be viewed in their context, and also that innovation at times takes place in a gradual and even unconscious fashion.⁵ There are, of course, on occasion, very deliberate legislative moves, like the Parliament Act 1911,⁶ or the Fixed-Term Parliament Act 2011,⁷ but equally there are gradual shifts in convention. For instance, during the eighteenth and nineteenth centuries it was clear that Prime Ministers could be appointed from either the House of Commons or the House of Lords, but a modern convention has arguably been established that the Prime Minister must be appointed from the Lower Chamber.⁸

Like the gradual deposition of sedimentary rock, these changes may be scarcely perceptible whilst they are taking place, but ultimately they dramatically reshape the constitutional geography. Therefore, development over time is key to understanding both the current reality and the possible future trajectory of malleable uncodified constitutions. This point returns us to the second of the three factors which we have indicated above: the limited attention given to religion in studies of the UK Constitution.

Whether or not commentators are approving of the religious dynamic of the present constitutional arrangements, the religious dimension is undoubtedly there, as the British Human Association (‘BHA’)⁹ loudly points out when calling for its removal;¹⁰ and it is unquestionably there, precisely because the state has evolved with this characteristic embedded deep within its structures. Entwined religious and secular elements have always been a feature of the governing arrangements within this territory, and this in itself does not make the religious dimension either positive or negative.

The British Humanist Association terms it ‘anachronistic’,¹¹ but is this term really justified? Deep historical origins do not, in and of themselves, make a phenomenon obsolete, unwieldy or unjust. The appropriateness of a religious constitution for a contemporary Britain must depend upon how it is actually operating for the citizens of the state.

The world of biology provides some enlightening analogies. Whales kept their knees for a long time after they did any walking, crawling or even dragging. Ancestors of modern whales, like Basilosaurus and Dorudon, never set their perfectly formed, but small residual limbs on dry land.¹² For a while, these distinctive, but impractical, appendages may have played some role in helping to manoeuvre partners into a convenient mating position, but around 34 million years ago the basilosaurids began the transition to modern whales, and slowly lost their vestigial legs in the process. Whale knees had outstayed their usefulness and had to go.

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In contrast, penguin wings are extremely valuable assets.¹³ Just because penguins are not going to be soaring with the albatrosses any time soon, this does not mean that their wings are not vital for them. Penguin wings are crucial for their swimming abilities, and although their function has changed radically, they remain a vital structure for the organism within which they are set.

It is uncontroversial both that religion occupies the place that it does within the public life of Great Britain for historical reasons, and also that the function of religious institutions like the established and quasi-established Churches¹⁴ has continually, and radically, altered over the passage of time. This chapter explores this process and its continuing evolutionary impact. It is a necessary foundation for the subsequent chapters’ analysis of whether the religious dimension of the UK Constitution is beneficial, or is a regrettable historical encumbrance which should be removed.

We shall begin with an examination of each national context, before drawing the strands together to set out the current pict...

Table of contents

• Cover Page
• Praise
• Religion, Law and the Constitution
• Law and Religion
• Title
• Copright
• Dedication
• Contents
• Table of Statutes
• Table of Cases
• Table of Secondary Legislation
• Anglican Ecclesiastical Law
• International Conventions and Treaties
• Acknowledgements
• Foreword
• Introduction
• Preliminary Thoughts
• 1 Church/State Relations and their Historical Evolution: Whale Knees or Penguin Wings?
• 2 Religion in the Current Paradigm: The flight of the Penguin?
• 3 Non-religious Beliefs in the Current Paradigm
• 4 The Rule of Law and the Religious Character of the Constitution and the Wider Legal Framework
• 5 Parliamentary Supremacy and the Religious Character of the Constitution and the wider Legal Framework
• 6 Checks and Balances, Separation of Powers and the Religious Character of the Constitution and the wider Legal Framework
• 7 Human Rights and the Religious Character of the Constitution and the Wider Legal Framework
• Conclusion
• References
• List of Interviewees
• Index