Thursday, 23 June 2011

Christianity and the law of England

Originally posted at Religious Studies

Is Britain a Christian country?  The High Court has just issued its decision in R (Johns) v Derby City Council, the latest of a series of cases which have affirmed the secular character of modern English law.

It may be interesting to reflect on how the law has developed to bring us to the present position.

"Christianity is part of the law of England"

Until the 20th century, there was clear judicial authority that the Christian religion was part of the law of England and Wales.  A string of old cases affirmed this proposition, including the following:

R v Lilburne (1649) - "The law of God is the law of England"

De Costa v De Paz (1754) - "the Christian religion, which is a part of the law of the land… for the constitution and policy of this realm is founded thereon"

In Re Bedford Charity (1819) - "Christianity is part of the law of England"

Bird v Holbrook (1828) - "There is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England"

Cowan v Milbourn (1867) - "There is abundant authority for saying that Christianity is part and parcel of the law of the land"

The twentieth century

This traditional position was weakened somewhat by R v Ramsay and Foote (1883), and it received its coup de grâce in 1917 with the decision of the House of Lords in Bowman v Secular Society.

Bowman addressed the question of whether a legacy to a secularist organisation, the Secular Society Limited, was valid and enforceable.  Four out of the five Law Lords giving judgment were favourable to the Secular Society's case.  Lord Sumner held that "the phrase 'Christianity is part of the law of England' is really not law; it is rhetoric".  However, he did accept that "[o]urs is, and always has been, a Christian State".

The contemporary legal conception of the UK as a secular state seems to have begun to be judicially articulated in the 1990s, notably in the case of R (Wachmann) v Chief Rabbi (1992), in which Mr Justice Simon Brown (later Lord Brown) referred to the "divide between Church and State", which he said was "well-recognised".  This decision was echoed in R (Aga Khan) v Disciplinary Committee of the Jockey Club (1993), and Lord Brown's comments have ultimately been endorsed in the Supreme Court by Lord Hope in R (E) v Governing Body of JFS (2009).

The recent cases

The most authoritative recent judgment on the relationship between the Christian faith and the State was that of the Court of Appeal in McFarlane v Relate Avon.  Lord Justice Laws, an observant Anglican, had this to say: 

In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content.  The common law and [the European Convention on Human Rights] offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs.  And so they should.  By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts.  These are twin conditions of a free society.

....The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves....  The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy....  But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.  It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion.  This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.  It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society....

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified.  It is irrational, as preferring the subjective over the objective.  But it is also divisive, capricious and arbitrary.  We do not live in a society where all the people share uniform religious beliefs.  The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.  If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic....

This judgment was readily accepted by Judge Rutherford of Bristol County Court in Hall v Bull, the widely reported case brought by a gay couple against a conservative Christian couple who permitted only married couples to share a bed in their bed-and-breakfast.  Judge Rutherford's judgment deserves quoting at some length: 

In 1882 Her Majesty Queen Victoria opened a new court building. It is in the Strand just at the entrance to the City of London. It was built to house the superior courts of this land with the exception of the House of Lords.  No one who enters can fail to be struck by the similarity of the Great Hall with the interior of those gothic cathedrals with which this kingdom is so richly endowed.  But if, before entering, you gaze upon the façade of the building you will notice 4 statues.

There you will find King Alfred who made such a notable contribution to Saxon England by codifying the laws of his day.  You will find Moses to whom was given the ten commandments and to whom, by tradition, is ascribed authorship of the first 5 books of the Bible in which you will find in great detail the laws governing the children of Israel.  Also there on the façade is King Solomon whose wisdom has become a legend and who displayed outstanding qualities as a judge when sitting in the Family Division in the only reported case of which we have details.  And the 4th statue is that of Jesus Christ who, I imagine, needs no introduction to those involved in this case.

Why are those statues there? Perhaps there were many reasons for them but I venture to suggest that one was to emphasise the Judaeo-Christian roots from which the common law of England was derived.

A great deal has however happened since King Alfred and his Saxon laws, and even more has changed since Moses, King Solomon and Jesus Christ walked upon this earth. Those Judaeo-Christian principles, standards and beliefs which were accepted as normal in times past are no longer so accepted.  Things have radically changed since the days of Queen Victoria or even, for that matter, since the days of her grandson King George V....

In our parliamentary democracy it is for parliament to frame laws which reflect these changes in attitude or which give a lead to such changes. Whatever may have been the position in past centuries it is no longer the case that our laws must, or should, automatically reflect the Judaeo-Christian position.

The very recent decision in R (Johns) v Derby City Council also adopts Lord Justice Laws' reasoning, and states:

We preface what follows with the obvious point that we live in this country in a democratic and pluralistic society, in a secular state not a theocracy....

Although historically this country is part of the Christian west, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century.  Our society is now pluralistic and largely secular.  But one aspect of its pluralism is that we also now live in a multi-cultural community of many faiths....

We sit as secular judges serving a multi-cultural community of many faiths.  We are sworn (we quote the judicial oath) to "do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will."  But the laws and usages of the realm do not include Christianity, in whatever form...

Religion – whatever the particular believer's faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to the individual's religious principles....  The starting point of the common law is thus respect for an individual's religious principles coupled with an essentially neutral view of religious beliefs and benevolent tolerance of cultural and religious diversity.  A secular judge must be wary of straying across the well-recognised divide between church and state.... 

Some cultural beliefs and practices are simply treated by the law as being beyond the pale.  Some manifestations of religious practice will be regulated if contrary to a child's welfare....  And some aspects of mainstream religious belief may even fall foul of public policy....

The "well-recognised divide" comment comes, of course, from Wachmann.  It is also worth noting that the final three paragraphs quoted above strongly resemble sections of the first-instance decision in R (E) v Governing Body of JFS (2008), doubtless due to the fact that Mr Justice Munby sat on both cases.  In any event, the decision in Johns should not have caused anyone any surprise (though it certainly has done so). 

But what about the Church of England?

If the policy and approach of the courts is religiously neutral, how can that be reconciled with the established status of the Church of England?  Here, for example, is a quotation from one of the older cases I referred to above:

R v Gathercole (1838) - "a person may, without being liable to prosecution for it, attack Judaism; or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country."

There is other authority, some of it quite recent, that the Church of England is legally fused with the State:

Marshall v Graham (1907) - "The process of establishment means that the State has... given to [the Church] a certain legal position, and to its decrees, if rendered under certain legal conditions, certain civil sanctions."

Attorney-General v Dean and Chapter of Ripon Cathedral (1945) - "The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts"

Hill, Ecclesiastical Law, 2nd ed. (2001) - "The law of the Church of England is part of the law of the land."

Wallbank v Aston Cantlow PCC, Court of Appeal stage (2001) - "The Church of England has enjoyed a unique status... since the passage in 1532-4 of the five statutes which severed the hegemony of Rome and placed the Church under the spiritual and temporal sovereignty of the Crown....  Both the spiritual and the temporal courts were thenceforward the King's courts...."

Wallbank v Aston Cantlow PCC, House of Lords stage (2003) - "What establishment in law means is that the state has incorporated [the Church's] law into the law of the realm as a branch of its general law"

Halsbury's Laws of England - "The ecclesiastical law of England is as much the law of the land as any other part of the law."

One way of resolving this apparent inconsistency is to explain it as arising out of a division of jurisdictions within English law.  In principle, the legally recognised doctrines and disciplines of the Church of England may be part of the law of England, but the consideration and enforcement of this component of the law is confined within small and well-demarcated boundaries.  We are dealing with the special category of ecclesiastical law, which is mostly justiciable only in the ecclesiastical courts: the civil courts are entitled to follow a more secular line.

This is only part of the answer, however.  There seems to have been a broader shift in judicial policy in favour of narrowing and minimising the legal consequences of establishment.  The most recent decision to examine in detail the relationship between the Church and the State was the House of Lords stage of Wallbank v Aston Cantlow PCC (2003), which was quoted above.  This case threw up the following judgments, which all tell against the idea that establishment means that the Anglican Church and its doctrines are incorporated into the institutions of the State:

Lord Nicholls - "As the established church [the C of E] still has special links with central government.  But the Church of England remains essentially a religious organisation.  This is so even though some of the emanations of the church discharge functions which may qualify as governmental.  Church schools and the conduct of marriage services are two instances.  The legislative powers of the General Synod of the Church of England are another.  This should not be regarded as infecting the Church of England as a whole, or its emanations in general, with the character of a governmental organisation."

Lord Hope - "The Church of England as a whole has no legal status or personality....  It has regulatory functions within its own sphere, but it cannot be said to be part of government.  The state has not surrendered or delegated any of its functions or powers to the Church....  The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government."

Lord Rodger - "Mr Beloff's argument centred... on the general position of the Church of England in English law.  The juridical nature of the Church is, notoriously, somewhat amorphous....  The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local....  [T]he Church seeks to serve the purposes of God, not those of the government carried on by the modern equivalents of Caesar and his proconsuls.  This is true even though the Church of England has certain important links with the state.  Those links, which do not include any funding of the Church by the government, give the Church a unique position but they do not mean that it is a department of state....  In so far as the ties are intended to assist the Church, it is to accomplish the Church's own mission, not the aims and objectives of the government of the United Kingdom."