by Frank Cranmer
Secretary, Churches’ Legislation Advisory Service
Fellow, St Chad’s College, Durham, UK
Honorary Research Fellow, Centre for Law & Religion, Cardiff University, UK
Religious Context
The United Kingdom consists of Great Britain – England, Scotland and Wales – and Northern Ireland. It is one of five Permanent Members of the United Nations Security Council, a member of the European Union and of the Council of Europe, a member of the International Holocaust Remembrance Alliance and of the 53-member Commonwealth of Nations (formerly the British Commonwealth). United Kingdom laws and policies, as well as government practice, generally protect and respect religious freedom. Governmental organizations have reported an increase in religious hate crimes and incidents in England, a slight increase in Northern Ireland, and a decrease in Scotland; but steps have been taken to promote religious freedom and tolerance. In Northern Ireland religious tensions and conflicts between Protestants and Roman Catholics have decreased in recent years; however, religious identity still frequently determines what neighborhood people live in.
The Church of England is the Church ‘established by law’ in England. The Church broke from the Roman Catholic Church during the reign of Henry VIII, partly because the Pope refused to annul Henry’s marriage to Catherine of Aragon but partly, also, as a result of the wider theological movements for religious reform across Europe. Unlike, for example, in Sweden, England allowed Roman Catholics to remain so long as they did not threaten the government. But they were treated poorly: they were put under financial disabilities, they were not permitted to own property, and they were sometimes imprisoned or executed. Civil rights were only fully restored to them in the nineteenth century by the Roman Catholic Relief Act 1829. Protestant dissenters outside the Church of England also suffered civic disabilities but of a less severe kind mitigated in most cases by toleration measures and finally removed by [the] repeal [of the Test and Corporation Acts] in 1828.
As the Established Church in England, the Church of England is represented in the House of Lords by the Lords Spiritual: the Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester and the remaining 21 most senior diocesan bishops by date of their appointment as diocesans. Its bishops are appointed by the Monarch on the advice of the Prime Minister, who now merely forwards the name submitted by the Crown Appointments Commission. The Monarch must ‘joyn in Communion with the Church of England as by Law established’ and promise to uphold it.
The General Synod of the Church of England has the power to make statute law (‘Measures’) that are part of the general law of England: once approved by affirmative resolution of each House of Parliament, a Measure is given Royal Assent in the same way as a secular statute. In reality, however, the Church exercises a comparatively small role in secular legislation. New or amending Canons of the Church of England are also given Royal Assent before being promulged; but, unlike Measures, they are not subject to approval by Parliament.
The Church of Scotland is in the Presbyterian, Reformed tradition rather than the Anglican one. Article III of the Articles Declaratory contained in the Schedule to the Church of Scotland Act 1921 declares it to be a ‘national Church representative of the Christian Faith of the Scottish people’. Whether or not the Church of Scotland is ‘established’ is a matter on which opinions differ – but in purely legal terms it is qualitatively different from any other religious community in Scotland. However, it functions independently in spiritual matters; and senior Church of Scotland officials are appointed by the General Assembly of the Church. While in Scotland, the Monarch becomes a member of the Church of Scotland and, on Accession, takes an oath to ‘maintain and preserve the Settlement of the true Protestant Religion as established by the Laws made in Scotland’.
There is no establishment of religion in Wales or Northern Ireland: the Church of Ireland was disestablished (in both parts of the island of Ireland) by the Irish Church Act 1869 and the territory of the Welsh dioceses of the Church of England was disestablished as from March 1920 as a result of the Welsh Church Act 1914 – the process of Welsh disestablishment having been interrupted by the Great War.
According to 2014 estimates, the United Kingdom’s population exceeds 64.6 million. Of this population, approximately 59.3% is Christian in England and Wales, 54% in Scotland, and 82.5%) in Northern Ireland. The major Christian Churches in England and Wales include the Church of England (Anglican), the Roman Catholic Church, Nonconformist Churches such as the Methodist Church, the Baptist Union and the United Reformed Church, and unaffiliated Christian groups. The two largest denominations in Scotland are the Church of Scotland (32%), and the Roman Catholic Church (16%): there are also several smaller denominations and unaffiliated Christian groups (6%>). Northern Ireland census figures indicate that 41% of the Christian population is Roman Catholic and 41.5% Protestant – mainly Presbyterians or adherents of the Church of Ireland.
The proportion of the population that professes non-Christian religions has increased. The headline figures from the 2011 Census suggest that the Muslim community represents 4.8% of the population in England and Wales and 1.4% in Scotland. Other religious groups – Hindus, Sikhs, Jews, and Buddhists – each make up less than 2% in England and Wales and a combined 0.8% in Scotland. In Northern Ireland, non-Christian religious groups represent less than 1%. Additionally, nonbelievers constitute roughly 25% of the population in England and Wales and more than 36% in Scotland, with the rest of the United Kingdom’s population not indicating a religious affiliation.
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Constitutional Provisions and Ordinances on Religion
Although often described as ‘unwritten’, the constitution of the United Kingdom in reality may, perhaps, be better described as uncodified. There is no single, unified document that establishes, authorizes or limits the Government or Parliament. Rather, governance is regulated and defined by tradition, case law, and statute law. Parliamentary sovereignty is probably the defining principle of British constitutional law; crucially, however, the United Kingdom has no entrenched constitutional provisions in the style of the United States.
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Religious Policy-making
The United Kingdom is a constitutional monarchy; and though the Queen is Head of State, in practice she invariably acts on the advice of the Prime Minister, who is usually the leader of the political party commanding a majority in the House of Commons. In principle, the final legislative authority in the United Kingdom is the Parliament at Westminster: a bicameral legislature consisting of the House of Lords and the House of Commons. No domestic judicial authority can overrule an Act of Parliament and no sitting Parliament can pass a law that would bind its successors. Under the terms of the European Communities Act 1972, and in accordance with the case-law of the Court of Justice of the European Union, EU law takes precedence over domestic law; however, if the United Kingdom were to decide to leave the European Union, there is nothing in domestic law to prevent Parliament from repealing the 1972 Act.
[For more, including post-Brexit update, see the document below.]