ecclesiasticallaw

Ecclesiastical law

Category: Ecclesiastical and Secular Governance

Brexit: The High Court fills a Legislative Lacuna

The intention of Parliament … is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the [statutory] language used (Lord Nicholls of Birkenhead)

‘it is inappropriate for the courts to trespass further than parliamentary intention by … filling … a lacuna under the guise of public policy’ (Mr Justice David Steel)*

The famous Brexit case is formally cited as R v Secretary of State for Exiting the European Union on the application of Miller and Another (2016) EWHC 2768 Administrative Court.  It concerns the British exit (or Br-exit for short) from the European Union (‘the EU’).

What exactly is the EU?  The EU is constituted by a number of treaties (i.e contracts) made between the member states.  Joining the EU therefore means acceding to, becoming a party to, the EU treaties.  By the same token, leaving the EU means withdrawing from, ceasing to be party to, those treaties.

The issue raised by the Brexit case concerns ‘whether, as a matter of the constitutional law of the United Kingdom [not EU law], the Crown … is entitled to use its prerogative powers to give notice … for the United Kingdom to cease to be a member of the European Union’ (para 4).  Can the Crown withdraw the UK from the EU treaties unilaterally under the Royal Prerogative, or does it require the authority of Parliament to do this?

The High Court (not the usual single judge but 3 of the most senior judges in England, assisted by no fewer than 24 barristers) concluded unanimously that the Crown does not have such unilateral power.  The consent of Parliament is therefore required.

The decision has been the subject of fierce but legally inarticulate criticism.  Few constitutional lawyers have opposed it.  The Supreme Court will shortly hear an appeal, which it is widely expected to dismiss.

It is well settled that the Crown, not Parliament, negotiates treaties with other countries on behalf of the UK.  The High Court acknowledged that ‘the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers’ (para 89).  Withdrawal from the EU treaties obviously engages international relations between the UK and the other members of the EU.  So why should this matter be treated any differently from other international business?

The High Court’s answer was that parliamentary approval is required because of the effect of withdrawal on UK domestic law.  ‘It is precisely because … the conduct of international relations [normally] has no effect in domestic law that the courts accept that this is a field of action left to the Crown …’ (para 89).

The European Communities Act 1972 (‘the ECA’)

The United Kingdom joined the EU on 1st January 1973, after Parliament had passed the European Communities Act 1972 (‘the ECA’).  For all its constitutional significance the ECA is a very short piece of legislation, with just 12 sections as originally enacted.  (This brevity was deliberate, to facilitate the Bill’s controversial passage through Parliament and discourage amendments.)

Why was the ECA needed in the first place?  The High Court explained that

‘by reason of the limits on its prerogative powers … the Crown could not have ratified the accession of the UK to the European Communities under the [EU] treaties … unless Parliament had enacted legislation.  Legislation … was needed to give effect to EU law in [UK] domestic law … as was required by those [EU] treaties …

‘… If this legislation [i.e the ECA] had not first been put in place, ratification of the treaties by the Crown would have immediately have resulted in the UK being in breach of its obligations under them, by reason of the absence of provisions for direct effect of EU law in domestic law’ (paras 41 and 42).

This suggests that the ECA was passed because the Royal Prerogative was in need of legislative support in order to ratify the EU treaties properly in accordance with international law.  As we shall see, the Court’s conclusion on the Brexit case is arguably inconsistent with this account, its own explanation for the ECA.

S.2(1) of the ECA provides that ‘rights … created by or arising … under the [EU] treaties … are without further enactment to be given legal effect … in the United Kingdom [and] shall be recognised and available in law, and be enforced … and followed accordingly’.  It further provides that ‘the expression enforceable Community right … shall be read as referring to [these rights]’.

The effect of s.2(1) is therefore that EU-inspired rights, which are enjoyed today by millions of people, are incorporated into UK domestic law.  Leaving the EU will not per se repeal the ECA.  (Repeal will undoubtedly require legislation.)  However, Brexit will affect the legal rights to which the ECA gave effect.  The High Court suggested that ‘virtually everyone in the United Kingdom or with British citizenship will … have their legal rights affected if notice [of withdrawal] is given’ (para 7).

Some EU-inspired rights, such as those relating to employment, could continue in domestic law even if the UK left the EU (para 58).  Other rights (eg freedom of movement and trade within EU countries) could continue only with the agreement of the remaining EU members (para 59).  Some rights (eg the right to stand for election to the European Parliament) would be lost completely (para 61).

Thus the Brexit case exposes a tension between 2 constitutional principles

(1) the Royal Prerogative to make, and withdraw from, international treaties and

(2) Parliamentary supremacy over domestic law.

Constitutional principle asserts that, while dealings with other countries are indeed a matter for the Royal Prerogative, the Prerogative cannot be used to alter domestic law.  Withdrawal from the EU will alter domestic law because of s.2(1), even though it will not repeal the ECA.  This means that constitutional principle (2) trumps (1) if there is a conflict between them.

However, the status of the EU-inspired rights in domestic law depends on the ECA.  The ECA is an Act of Parliament, not a constitutional principle.  Absent the ECA the EU rights would have no status at all in UK law.  The Brexit case therefore turns on the question of what Parliament intended by legislating as it did.  It does not turn on constitutional principle per se.  The High Court acknowledged that its decision must depend on ‘What Parliament intended by legislating in the [ECA]’ (para 82).

The answer to that question, however, was loaded with a presumption that Parliament intended to legislate in accordance with the constitutional principles identified by the Court.  ‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them’ (para 82).

All presumptions are rebuttable, of course.  (2) will not trump (1) if ‘it [can] be inferred that … Parliament … intended … to produce effects at variance with [constitutional principle]’ (para 82), i.e if it can be inferred that Parliament intended, when it passed the ECA, that the Royal Prerogative could be exercised even though this would affect the s.2(1) rights.

The Court therefore reviewed the text of the ECA.  Not just s.2(1), but s.2(2), and s.1 and s.3.  Also the long title of the Act ‘to make provision in connection with the enlargement of the European Communities to include the United Kingdom’.  Also the heading of s.2 ‘General Interpretation of Treaties’ (para 93).

Having done this, the Court held that it is ‘clear that Parliament intended … to introduce EU law into domestic law … in such a way that this could not be undone by the exercise of Crown prerogative power’ (para 92).

The Intention of Parliament

Thus the Court’s conclusion was that Parliament had a twofold intention when it passed the ECA:

(1) to give effect to the EU treaties by introducing the treaty rights into domestic law (obvious) and

(2) to ensure that those rights could not be ‘undone’ by Royal Prerogative in the future.

Conclusion (2) above is therefore the essential reason, the ratio decidendi, for the High Court’s decision on the Brexit case.  Not constitutional principle per se, but the intention of Parliament deduced from the text of the ECA, albeit subject to a presumption that that intention will accord with constitutional principle.

It is argued that the High Court’s conclusion (2) was wrong and that its decision on the case was therefore wrong also.

The obvious difficulty with conclusion (2) is that the ECA says nothing about leaving the EU.  It is concerned only with joining the EU.  It regulates UK membership of the EU while that membership continues.  However, it makes no provision for the cessation of UK membership.

As Lord Nicholls indicated (in the dictum quoted above) the intention of Parliament depends on the language used in the statute.  The High Court did pay close attention to the language of the ECA, but this exercise merely demonstrates that the ECA simply does not address the issue raised by the Brexit case.

This means that, in reaching conclusion (2), the High Court went beyond the language of the ECA.  It imputed to Parliament an intention that Parliament did not have.  It effectively implied an unwritten provision into the ECA that Brexit requires the authority of Parliament.

If the ECA did contain a ‘Brexit clause’ that provided for, or even referred to, the possibility of EU withdrawal, then the High Court would indeed be right to interpret this provision or reference conformably with ‘background constitutional principles’.  But, as it is, there is no such provision or reference.

Perhaps the ECA ought to have included a Brexit clause, to regulate any future withdrawal from the EU.  The absence of such a provision in the ECA is arguably anomalous, a lacuna (i.e a gap or loophole).  But the Court’s function of giving effect to the intention of Parliament does not extend to filling in legislative lacunae on Parliament’s behalf.  That is a matter for Parliament itself.

Parliament has now had the best part of half a century to assert its supremacy by amending the ECA so as to include a Brexit clause.  It is still not too late for it to do so.  (And presumably it will do so if the appeal to the Supreme Court fails.)  But deciding whether or not to amend the ECA is none of the High Court’s business.

Thus it could be argued that, by presuming to fill the lacuna in the ECA concerning Brexit, the High Court was itself guilty of infringing the constitutional principle of parliamentary supremacy.

The High Court stressed the implausibility of Brexit by Royal Prerogative alone.  If an Act of Parliament gives effect to important legal rights then surely any interference with those rights must require another Act of Parliament?  ‘Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems … it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action … to switch it off again’ (para 87).

Yet there is no implausibility if we consider the historical context of the ECA.  In the early 1970s, as today, the Crown was represented by a Conservative government with a slender majority in Parliament.  The Bill that became the ECA was only passed in the face of determined opposition from within the government’s own party as well as from the official opposition.  Hence its brevity.  (History repeated itself two decades later, when Parliament passed the European Communities (Amendment) Act 1993, which concerned the Treaty of Maastricht.)

The political situation in the early 1970s was therefore the exact opposite of what it is in the current Brexit case.  A strongly pro-EU government was striving, from a distinctly weak position, to persuade a sceptical legislature to join the EU.  When viewed in this context, it is not surprising that the ECA fails to address the possibility that the government might one day seek to withdraw from the EU against the wishes of the legislature.

The High Court’s own account of the EU accession (paras 41 and 42, quoted earlier) suggests that the purpose of the ECA, i.e the intention of Parliament, was to strengthen the Royal Prerogative, not to limit or exclude it.  It could even be argued that Parliament’s intention in passing the ECA concerned international law, not domestic law at all.  Parliament intended to empower the Crown to ratify the EU treaties effectively, hence to ensure UK compliance with international law.  The introduction of EU law into UK domestic law was therefore merely incidental upon that ratification.

* Lord Nicholls’ dictum is taken from the case of R v Secretary of State for the Environment ex parte Spath Holme Ltd (2001) 2 Appeal Cases 349 at p.395.  That of David Steel J is from Hashwani v Jivraj (2010) 1 All England Reports 303 at p.317.

Two Churches, One Kingdom: England and Scotland

‘The Nations are one because the Churches are two.’  (Macaulay on the Union of England and Scotland)

These words remind us that, whatever other factors led to the Act of Union 1707, the Union was partly in the nature of a religious settlement.  In the previous century, England and Scotland had each tried to impose its own preferred religious system on the other, with disastrous consequences.  While the Act of Union united the secular states of England and Scotland, their respective ecclesiastical states remain strictly separate and independent of each other. 

The most visible constitutional difference between the Churches of England and Scotland is that the former retains an episcopal structure derived from the late mediaeval Catholic Church, while the latter has a presbyterian structure devised in the early modern period.  However, the other important constitutional difference concerns the relationship of the two Churches to the secular state.

The Church of Scotland Act 1921 now defines the boundary between Church and secular state in Scotland.  It asserts the autonomy of the Church in ‘matters spiritual’.  These matters are specified in the ‘Declaratory Articles’ of the Church, which are scheduled to the Act.  According to Article 4 they include ‘all matters of doctrine, worship, government and discipline in the Church, including … [Church] membership and office … and the mode of election of its office-bearers’. Article 4 asserts that the spiritual authority of the Church is ‘subject to no civil authority’, and that the civil authority has no ‘right of interference’ in spiritual matters.

This spiritual autonomy is effected by disapplying or nullifying inconsistent secular laws.  Thus s.1 of the 1921 Act provides that

[1] ‘no limitation of the [Church’s] liberty, rights and powers in matters spiritual … shall be derived from any statute or law … at present in force’

[2] ‘all such statutes and laws insofar as they are inconsistent with the Declaratory Articles are hereby repealed and declared to be of no effect’ and

[3] such laws as are not nullified under [1] are to be ‘construed in conformity … with [the Articles] and in subordination thereto’. 

S.1 is a remarkable provision, requiring that certain secular laws are subordinate to ecclesiastical laws.  The contrast with English ecclesiastical law could hardly be greater.  While English law is concerned to assert the supreme authority of the Monarch over the Church, the 1921 Act and the Declaratory Articles assert the independence of the Church from the Monarch. 

Colin Munro observes that ‘The [1921] Act … [is] a recognition by Parliament of the Church’s constitution, rather than as a conferment of a constitution’ (emphasis supplied).  It recognises ‘a co-ordinate jurisdiction of Church and state, each supreme within its own sphere’.  The Act ‘may be regarded … as … a concordat which allowed that the Church had its own sphere of jurisdiction’ (‘Does Scotland have an Established Church?’, Ecclesiastical Law Journal 1996-7, vol 4, p.639, pp.644).

The Church is described by Article 3 as ‘a national Church representative of the Christian faith of the Scottish people’.  The basis of its authority is explained by Article 4, which states that ‘This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hand of Church office-bearers, receives [spiritual authority] from Him … and from Him alone’.

Thus, while the Monarch is the head of both the ecclesiastical and the secular state in England, in Scotland she is head of the secular state alone.  Christ is the only head of the Scottish ecclesiastical state.

The governance of the Scottish Church is described in a most helpful modern commentaryThe Constitution and Laws of the Church of Scotland edited by James L Weatherhead(Edinburgh, 1997).

Weatherhead’s account suggests that the Scottish ecclesiastical constitution harks back to the time when all sovereign authority had a judicial character.  It does not recognise the modern principle of the separation of legislative, executive and judicial powers, and barely recognises the distinction between these powers (p.88).

Therefore the Church is governed by ‘a conciliar sytem of superior and inferior courts’ (p.97), namely,

(1)  the General Assembly

(2)  Presbyteries and

(3)  Kirk Sessions. 

The General Assembly can decide cases both at first instance and on appeal, as can a Presbytery.  Kirk Sessions are first instance courts only.  There can be no independent review of a decision of the General Assembly.  As supreme court, the Assembly is the final interpreter of its own legislation (p.75).

Despite the judicial character of its constitution, the Church of Scotland has no judges, in the sense of legally-qualified officials empowered to decide cases.  Judges, like bishops, were distrusted as the agents of royal intervention in ecclesiastical affairs.

Thus, when exercising their judicial function, the Church courts resemble grand juries or committees of magistrates.  They are staffed by legally-qualified clerks, procurators and assessors, but these officials, like justices’ clerks, may only give legal advice, not definitive rulings.

The courts are chaired by moderators.  Moderators, like Lord Mayors, are elected and hold office for a year.  A court may delegate a responsibility to a committee or official.

The Monarch sends a representative, the Lord High Commissioner, to meetings of the General Assembly.  His visits are attended with some pomp and circumstance, and he observes the proceedings seated on a throne, as befits his viceregal dignity.  However, the Lord High Commissioner ‘has no authority of any kind over the Assembly’ (p.189).  The throne is strategically placed just outside the Assembly, to emphasise the separation of Church and state.

It is sometimes glibly remarked that the Monarch is an Anglican in England and a Presbyterian in Scotland.  This is not really accurate.  The Monarch is obliged by the (English) Act of Settlement 1700 to ‘join in communion with the Church of England’ (s.3), but there is no equivalent obligation in Scottish law.  As we have seen, the Monarch is not the Head of the Scottish Church.  The only basis for the Monarch’s ‘presbyterianism’ is that she chooses to attend divine service in her local kirk when resident in Scotland.  This follows the practice of Queen Victoria, the first Monarch of the United Kingdom to live in Scotland.  The practice is purely a matter of personal choice or family tradition.  It has no constitutional basis.  However, it may have the political effect of softening the separatist and republican character of the Church of Scotland.  

The Scottish constitution reminds us that the Church of England is not the only established Church of the United Kingdom, and that a Church may be established by law even if the Monarch or other Head of State is not in communion with it.  It shows that ecclesiastical ‘establishment’ is not a uniquely Anglican phenomenon. 

The Quebec Act 1774 shows that ‘establishment’ is not uniquely Protestant either.  S.5 of the 1774 Act provided that, ‘for the more perfect security and ease of [their] minds … his Majesty’s subjects, professing the religion of the Church of Rome of and in the said Province of Quebec, may have, hold, and enjoy, the free exercise of the religion of the Church of Rome, subject to the King’s supremacy … and that the clergy of the said Church may hold, receive and enjoy their accustomed dues and rights, with respect to such persons only as shall profess the said religion’.

Phillimore admitted (perhaps with a hint of regret) that ‘This Act must be holden to recognize the Church of Rome as an, if not the, Established Church of Lower Canada’ (Ecclesiastical Law, 2nd ed 1895, p.1791).  The Quebec Act ensured that Canada remained loyal to the Crown when the American revolution broke out two years later, and never joined the United States.  Canada is now an independent country, of course, but it remains a monarchy within the Royal Commonwealth.  Tragically, the enlightened religious policy followed in Scotland and Canada was never applied to Ireland. 

There may be a certain similarity between the Anglo-Scottish Union and the modern European Union in their treatment of ecclesiastical matters.  Much of the governance of the secular state is now regulated by European law, but the ecclesiastical states of both England and Scotland continue to be regulated exclusively by their own domestic laws.

The Establishment of the Church of England

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.

The PCC and Public Authority: The Wallbank Case

Editorial, Ecclesiastical Law Journal (Issue 34, January 2004, pp247-8)

The learned editor appeared for the parochial church council (‘PCC’) in the case of Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37, as junior counsel. 

The case seems to have been fiercely contested.  Its outcome was an unqualified victory for the PCC and the Church of England.  The House of Lords ruled that Mr and Mrs Wallbank, as lay rectors, were liable for the repair of the chancel of Aston Cantlow parish church.  It further held (though with a hint of reluctance) that that liability was an unlimited personal liability.  It did not attach only to the profits of the rectorial property (if any), but to every last penny that the lay rectors possessed.

In giving his account of the case, the editor does not dwell on its disastrous consequences for Mr and Mrs Wallbank.  Instead he concentrates on the conclusion in the case (held by a majority of the Law Lords, but not by Lord Scott or the Court of Appeal) that a PCC is not a public authority for the purposes of the Human Rights Act 1998.

The editor attaches great significance to this conclusion.  ‘The importance of the House of Lords’ decision for the Church of England lies not in the provisions of the Chancel Repair Act 1932 [which had impacted so adversely on Mr and Mrs Wallbank] but rather in the discussion of the nature of the Church itself and its place in society and government’ (p.247).

The Human Rights Act enables ‘victims’ to go to court to vindicate their human rights against oppressive public authorities.  A public authority cannot be a ‘victim’, only an ‘oppressor’.  The editor’s point is that, if PCCs had been held to be public authorities under the Human Rights Act, they would ‘lose the status of ‘victim”.  They would therefore be unable to claim breach of human rights against a secular public authority.

The ‘human right’ most obviously associated with the Church is the right to practice one’s religion.  On the editor’s view the Wallbank case is an important safeguard of Anglican religious freedom.  ‘Not being classified a public authority, the Church of England will remain free to engage in its mission and witness … on an equal footing with all other denominations and faith communities in the UK’ (p.248).

The reference to ‘an equal footing’ makes the point that non-Anglican Churches and ‘faith groups’, being constituted on a voluntary basis only rather than ‘established by law’, would not be in danger of being considered public authorities under the Human Rights Act.

It is argued that this exegesis of the Wallbank case is somewhat farfetched.  The PCC’s functions do include ‘co-operating with the incumbent in promoting in the parish the whole mission of the Church’ (PCC (Powers) Measure 1956, s.2(2)(a)).  Of course it is possible to imagine a secular authority taking some action or decision that would impede a PCC’s missionary work.

However, the PCC’s missionary function, indeed all its legal functions, are exercised on behalf of, and for the benefit of, the parishioners, not itself.  Thus if the secular authority’s action impeded the PCC’s function and thereby infringed the parishioners’ right to practice their religion, the parishioners, not the PCC, would be the victims of this action. 

As victims, the parishioners (an individual parishioner or a group of parishioners) could bring a Human Rights Act claim against the secular authority, even if the PCC could not.  Indeed the members of the PCC could bring such a claim.  The only possible restriction of their ‘human rights’ is that they would have to bring a joint claim in their own names, rather than in the corporate name of the PCC.

If the secular authority’s action were to impede the PCC’s function but without infringing the human rights of the parishioners, there is no reason why the PCC should be enabled to bring a Human Rights Act claim.  Judicial review is always available to the PCC if a secular authority exceeds or abuses its powers.  (A public authority can apply for judicial review of the action of another public authority.)

The Law of Organised Religions: Freedom and Truth

Dignitatis Humanae (1965), the Second Vatican Council’s declaration on religious freedom, is a helpful guide to the relationship between ecclesiastical governance and secular governance.  Religious freedom arises from man’s duty and vocation to seek the truth.  Man is by nature a truth-seeking being.  If man has a duty to seek the truth he must also have the right to seek it.  He must therefore have the freedom necessary to do this.

Thus religious freedom is not an end in itself.  The right to it does not arise (at least not directly) from any duty to respect different opinions, cultural values or ‘diversity’.  Religious freedom is concerned with objective truth, not directly with subjective belief.  It does not mean that all religions or philosophies are equally valid.

Hence all ecclesiastical governance (ecclesiastical law, canon law, quasi-contractual rules) is concerned to administer the Truth of religion, the divinely revealed Word and Sacraments.  Secular governance is required to ensure that ecclesiastical governance has sufficient freedom to administer this Truth.

Professor Julian Rivers begins his recent book The Law of Organised Religions: Between Establishment and Secularism (2010) Oxford University Press with a quotation from Magna Carta, ‘… quod Anglicana ecclesia libera sit …’.  This is entirely apposite to his subject.  The Church’s essential function of administering the Word and Sacraments, and its concomitant need of secular freedom (libera) to discharge this, are exactly the same today as they were in the middle ages.

What has changed, of course, is perception of the Truth, of what the Word and Sacraments are.  Different Church communities now have different perceptions.  Ecclesiastical governance has changed as perceptions of Truth have changed.  Secular governance has therefore had to change as well, in order to ensure that the changed ecclesiastical governance has its necessary freedom.

Like many other commentators before him, Professor Rivers is critical of the House of Lords’ decision in the famous case of Free Church of Scotland v Lord Overtoun (1904) Appeal Cases 515, and of some of the earlier secular case law on ecclesiastical governance.  The criticism may be unwarranted.  Freedom can only follow truth, it cannot precede it.  A ‘freedom’ which seeks to predetermine or anticipate truth is no freedom, only tyranny.  Secular governance can only react to changes (unions, schisms etc) in ecclesiastical governance.

Thus secular governance in the 19th and early 20th centuries did not, as Professor Rivers suggests, create a tension in ecclesiastical governance (p.78).   It merely exposed an existing tension.  The Free Church case arose because that Church changed its governance, due to a change in its perception of Truth.  The secular law could not have anticipated this.  The House of Lords was required to apply the secular law as it then stood.  As Rivers acknowledges, the secular law was subsequently changed by Parliament, in order to accommodate the change in the Free Church’s governance (the Churches (Scotland) Act 1905).

Speaking in the Free Church case, Lord Chancellor Halsbury held that ‘The identity of a religious community described as a Church must consist in the unity of its doctrines’ (p.612).  Rivers criticises the ‘rigidity’ (p.82) of an approach which identifies a Church as such by its religious doctrine.  But it is difficult to see how else a Church can be defined.  If the religious doctrine or ‘Truth’ is not identified, it will be difficult to ensure the necessary freedom.

Professor Rivers cites the Church of Scotland Act 1921 as the ‘idealised model’ of religious freedom (p.318).  Yet the freedom must fit the truth, not vice versa.  The freedom enjoyed by the Church of Scotland must be understood in the context of its Truth-claim, which is a divinely appointed presbyterian system: ‘This Church … wherein the Lord Jesus Christ has appointed a government of office-bearers, receives [spiritual authority] from Him … and from Him alone … subject to no civil authority …’ (Declaratory Article 4).

The Truth-claim of congregationalist protestants is much more modest.  It derives from the Lord’s words ‘where two or three are gathered together in My Name etc’.  The United Reformed Church’s constitution provides that a ‘church’ is constituted by ‘members … associating in a locality’ (B1, 6th edition 2000).  The freedom required by congregationalists is therefore limited to ‘the assistance of the law of the land’ (Methodist Constitutional Practice and Discipline, 7th edition 1988).  This ‘assistance’ is effected by the general law of contract and trusts, supplemented by private Acts of Parliament.

The Roman Catholic Church, by contrast, claims to be divinely constituted as a supranational, autonomous society (1983 Code, canons 204.2, 113.1), under a papal sovereignty derived from ‘The office uniquely committed by the Lord to Peter’ (canon 331).  Such a Truth-claim requires freedom in public international law as well as in domestic laws.  The Pope ‘is judged by no one’ (canon 1404), so the freedom must include sovereign immunity from legal action.  (This has been the subject of a recent book by Mr Patrick Robertson QC).

The Anglican Truth-claim is very unclear.  Like the Roman and Scottish Churches it has a divinely ordained ministry, to administer the Word and Sacraments.  Unlike the Pope and the presbytery, however, the Anglican ordained ministry does not receive the divine power of governance.  That vests in the secular ruler.  He or she enjoys ‘that … prerogative which we see to have been given always to all godly princes in Holy Scripture by God himself’ (Article 37).  

The only freedom that the secular ruler must respect, according to the Anglican Truth-claim, concerns the integrity of the ordained ministry: ‘we give not to our princes the ministering of God’s Word or of the Sacraments’.  However, the power of governance ultimately determines the ministry’s function.  Ministry administers the Word and Sacraments, but governance determines what Word and Sacraments actually are.

Secular rulers no longer claim a divine right to govern the Church.  The Monarch’s constitutional position is now justified on political, not religious, grounds.  The modern canon concerning the royal supremacy begins ‘We acknowledge’, not ‘We believe’ (canon A7).  Even this only applies in England.  Thus the ‘freedom’ now enjoyed by the modern Anglican Church has been obtained at the expense of its Truth-claim.  If the secular ruler has no divine right to govern the Church, who has?

In practice, modern Anglican governance is based on association with its ministry, albeit the test of association is different for clergy and laypeople.  The right of clergy to participate in governance derives from their office within the ministry, but not directly from their ordination.  The right of laypeople derives from such acts of association as attendance at worship and reception of holy communion, but not directly from baptism.  However, the divine authority for this governance-through-association is unclear.

Phillimore suggests that modern Anglican governance was settled as ‘a matter of necessity’ (Ecclesiastical Law, 2nd edition 1895, p.1776).   The ministry requires a power of governance of some sort in order to exist.  In a secular society, nobody can claim a better right than the Church’s own members.  If they did not exercise the power of governance, nobody else could or would and no form of ministry could continue.  Thus the freedom claimed by the Anglican Church is determined by what its present members judge necessary for its ministry.

The head of the legal office of the Church of England has recently echoed Phillimore’s words, describing the synodical system as an ‘experiment’  (Stephen Slack, ‘Synodical Government and the Legislative Process’ (2012) Ecclesiastical Law Journal, p.43)

The Church of England has sometimes envied the ‘freedom’ enjoyed by the Church of Scotland, without, of course, wishing to assume the presbyterian structure that is the justification for that freedom.  The danger here is that ‘freedom’ becomes an end in itself, not a means to an end.

Dignitatis Humanae makes clear that man’s duty to seek the truth is fulfilled in a social context, through collective worship, the education of children and dialogue.  Thus there is the closest possible connection between religious freedom and freedom of association.  Indeed it is hardly possible to practice a religion except in association with others.  Professor Rivers is therefore correct to warn against the tendency to regard the right to manifest a religious belief as primarily an individual right, which prevails over the right of the association to manifest their religious belief (‘The Inadequacy of Individual Rights’, p.318).

Rivers offers a courageous and powerful critique of state ‘neutrality’ in religious matters, and of so-called ‘religious equality’.  These superficially plausible terms conceal the pernicious secularist falsehood that only an irreligious state is capable of not discriminating against religious minorities.  As Rivers says, they also lead to ‘the suppression of difference’ (p.341), by such devices as banning the Muslim veil or the crucifix in classrooms.  ‘Religious equality’ leads to religious persecution.  ‘Equality’ itself becomes the religion of the state.

On the contrary, the relationship between freedom and truth means that secular governance cannot be completely ‘neutral’ in religious matters.  A judge must be impartial when deciding a dispute between members of the same Church, but judicial impartiality does not demand that the state be indifferent to Truth. 

Dignitatis Humanae acknowledges that religious freedom must be limited by ‘just public order’.  Freedom must not seek to predetermine or anticipate Truth, but it must be able to recognise Truth, even if dimly.  At any rate, it cannot treat manifest falsehood as if it were truth.  Thus a religion which practises coercion of persons who leave it or marry outside it is incompatible with truth and so is not entitled to freedom.