The Establishment of the Church of England
by Philip Jones
The word ‘establishment’ is badly in need of demythologising. Commentators on ecclesiastical law tend to use the word in the same sense that historians and sociologists use it, as a shorthand reference to the peculiar position of the Church of England in state and nation. They speak of ‘high establishment’ (the Church’s relationship to Crown and Parliament) and ‘low’ or ‘earthed establishment’ (the Church’s position in local communities).
These shorthand expressions confuse the legal and constitutional issues. It is therefore important to distinguish the legal meaning of ‘establishment’ from its historical or sociological meaning.
The legal meaning is quite straightforward. ‘Establishment’ simply means ‘constitution’. Every organisation, religious or secular, public or private, has an establishment / constitution of some sort.
The peculiarity of the Church of England is not that it is established, but that it is established by law. Other Churches in England (and Wales) are established only by private agreement between their members. The Welsh Church Act 1914 provides that the Church in Wales ‘shall cease to be established by law’ (s.1). The Act could have provided that the Church ‘shall be reconstituted / re-established on a voluntary basis’. The effect would have been the same.
The Church of England’s relationship to ‘the state’ also needs to be better understood. ‘The state’ comprises both the ecclesiastical state and the secular state, not the secular state alone. The Church is the ecclesiastical state. The Church is established by law, not by the state. The secular state is itself established by law.
The ecclesiastical state comprises those institutions and offices whose public function is the administration of the Christian religion, whether directly or indirectly. The religion that it administers is defined by the formularies that are now incorporated into ecclesiastical law by the Worship and Doctrine Measure 1974.
The ecclesiastical state may be described as the ecclesiastical system. Just as the legal system exists to administer justice, so the ecclesiastical system administers religion.
This analysis also makes clear that English ecclesiastical law is the counterpart of secular constitutional and administrative law. Like other English law, it comprises statute law and common law.
Mr Justice Phillimore’s well-known dissertation on ‘establishment’ in the case of Marshall v Graham (1907) 2 King’s Bench 112 is potentially confusing. His dictum that ‘A Church which is established is not thereby made a department of the state’ (p.126) is true to the extent that the Church is not part of the secular state, and was not created by it. Nevertheless the Church is part of the state, because its institutions are constituted by law on the same basis as secular state institutions. The Archbishops’ Council and HM Revenue and Customs obviously have very different functions, but those functions are nonetheless equally prescribed and regulated by law.
Modern textbooks on constitutional law do nothing to improve understanding of this point. They seldom, if ever, discuss the Church of England, let alone the Church of Scotland. This encourages the wrong impression that ‘the state’ comprises the secular state alone.
Although its constitutional position is unique in England, the Church of England is far from being the only Church that is established by law. England and Scotland have different ecclesiastical systems, just as they have different legal systems. Other Churches in foreign jurisdictions are constituted by the laws of those jurisdictions.
The constitutions of England and Scotland make clear that different Churches will have different structures, which may change over time. However, this does not remove their common characteristic of being constituted by the law of the jurisdiction.
The issue of an ecclesiastical state should be distinguished from the question of religious influence in the secular state. Thus the questions whether the Monarch should be required to ‘join in communion’ with the Church of England or whether bishops should sit in the House of Lords concern the secular constitution, not the ecclesiastical constitution.
The ‘disestablishment’ question in England therefore raises three discrete constitutional issues, which the sociological shorthand tends to confuse:
(1) should there be a greater separation between the ecclesiastical and secular states (as in Scotland)?
(2) should the ecclesiastical state be dismantled altogether and reconstituted on a voluntary basis (as in Wales)?
(3) should the religious influence on the secular state be removed, or merely adjusted so as to increase non-Anglican influence?
There may be little practical difference between (1) and (2). It would be possible to do (2) without (3) and vice versa.
Scotland shows that ‘establishment’ is not a uniquely Anglican phenomenon. Nor is it uniquely Protestant. The Roman Catholic Church is established or constituted by its own law, which enjoys recognition in public international law. International law recognises the Catholic Church as an autonomous perfect society under the sovereignty of the Pope. However, the Catholic Church in a particular jurisdiction may also be constituted by the law of that jurisdiction, perhaps under the terms of a concordat.