Disestablishment of the Church of England

“Then render to Caesar the things that are Caesar’s ; and to God the things that are God’s”

“Yesterday we asked for acceptance, today we ask for spiritual equality ; tomorrow we shall demand the disestablishment of the Church of England.”

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The equivocal place enjoyed by the Church of England in the United Kingdom is one that deserves a astute analysis in footings of its compatibility with the involvements of broad democracy. The current constitutional colony has faded from the limelight over the class of the past century despite being a extremely contested issue during the late 19th century, due, in the most portion, to other more urgent issues get downing to come up. The last clip the issue was considered as a whole was in 1970 but it was observed that there was a general deficiency of cognition on behalf of the British populace on Church-State issues and as such the affair was left as it was. However, in a new epoch of equality the issue must be readdressed and rectified in the involvements of democracy in an progressively multi-faith state. The issue transcends the consciousness of the British populace on the issue and should be focused on the disestablishment of the Church of England as a affair of democratic jussive mood. To outdo understand what is being compromised it is of import to first sketch what precisely “establishment” is, what it has afforded the Church of England and how such a colony came into being.

The current colony is due in the most portion to Henry VIII and his interruption from Rome, and a brief overview of the history of the Church of England is of import to understand the nature of the subsequent Torahs set uping the Church by jurisprudence. Henry VIII broke off from the Roman Catholic Communion due to the failure of the Pope to allow an revocation of his matrimony to Katherine of Aragon. The Act of Supremacy 1534 recognised Henry as the Supreme Head of the Church of England, doing the aristocracy swear an curse recognizing his domination. When Elizabeth I became Queen in 1558 she had Parliament pass the Act of Supremacy in 1559 reconstructing the place of the Church of England but paraphrasing the curse recognizing her as the Supreme Governor of the Church, as the Bible recognises Jesus Christ as the Head of the Church.

The thought of “establishment” is one that remains hard to specify, as there was no individual legislative act that created the colony that remains today, instead it was a progressive attack that is best defined through the cardinal privileges enjoyed by the Church of England. In Chapter 1 I shall sketch what constitution is and seek to bring forth a on the job legal definition in order to sketch the current constitutional colony. In this chapter I shall besides research the construct of disestablishment and old efforts to disestablish the Church of England from the late 19th century to every bit late as January/February 2008 when the issue one time once more began to construct impulse with a position to foreground how old failures fell abruptly of accomplishing spiritual equality. The chapter shall stop with an scrutiny of the thought of secularism and how it may non merely be preferred to recommend province neutrality, but besides cardinal in the involvements of broad democracy.

In Chapters 2 to 4 I shall look more closely at three different elements of constitution and sketch the consequent democratic lacks and do recommendations as to how they may outdo be rectified. The chief privileges that characterise the established faith are ; the 26 Anglican Bishops busying ex-officio places in the House of Lords ; the function of the Monarch ; and the Governance of the Church of England. Each of these issues will be dealt with in item in an effort to exemplify how the Church of England has been woven into the cloth of political and legal life in the United Kingdom and the subsequent jobs that stem from this relationship, with peculiar accent on issues of democratic concern. To briefly place the key jobs that each of these privileges create they shall be introduced at this point in order to put the scene for the remainder of this debut.

In Chapter 2 I will turn to the controversial issue of the House of Lords, nevertheless, treatment is restricted entirely to the 26 Anglican Bishops. The Archbishops of Canterbury and York ; the Bishops of London, York and Winchester along with the following 21 bishops in order of senior status sit in the House of Lords by virtuousness of their place within the Church. There are issues of democracy and representation within the upper chamber ; nevertheless, this is non within the remit of this paper. Attempts have been made late to turn to the issues in the House of Lords with the recommendation that the figure of Bishops be simply reduced to sixteen. The study besides recommended that other religions should be introduced to the Lords, an thought that will merely function to farther discriminate and estrange those non in the privileged few. This privilege highlights an inequality in that one spiritual group has been afforded the chance to sit in Parliament, a privilege that should be viewed with the cognition that the Church of England can buttonhole for its ain involvements in the corridors of power while other spiritual groups must buttonhole in the traditional manner.

Chapter 3 is concerned with the Monarch and the double function of Head of State and Supreme Governor of the Church of England, every bit good as the anti-Catholic sentiment in the Torahs on the Protestant sequence. The Monarch is the Supreme Governor of the Church of England and as such must take an curse to support the Protestant religion. The Monarch is a figure of British integrity and to stand for a individual faith is to estrange people from other religions and the non-religious. The Act of Settlement 1700 requires a Protestant sequence and as such it is out to get married a Roman Catholic. This favoritism non merely promotes exclusion to the people of Britain, many of whom belong to the Roman Catholic community, but besides calls into inquiry its compatibility with the Human Rights Act.

In Chapter 4 I shall look at the administration of the Church of England and how it is restricted in its ain direction. This Chapter will foreground the booby traps for the Church of England itself as being by jurisprudence established The Prime Minister is responsible for naming Bishops and other senior clergy of the Church of England, a function that has been altered late by new Prime Minister Gordon Brown who shall now simply act as a mailman and go through the recommendations to the Queen. This is a clip devouring procedure and a waste of authorities resources on a privilege that is enjoyed by no other faith. However, whether any other faith would run for this is questionable as it restricts the Church’s control over itself. This issue of governmental control is besides apparent in the devising of Church Torahs. Church Torahs are made by Measures that must be passed by a individual ballot in each House of Parliament. They can non be amended ; they must merely be passed or rejected. This besides concerns Human Rights and the right of the church to self-govern without authorities intervention.

All these issues will be addressed in relation to their compatibility with the involvements of broad democracy in the United Kingdom as a whole. As a theoretical account of democracy I shall take Robert Dahl and his work on political equality. Dahl is one of the most celebrated observers on political power and he provides an lineation of representative democracies in Europe and a theoretical account of an ideal democracy. His observations characterised representative democracy in Europe as consisting of ; authorities determinations and policies being accountable to locally elected politicians ; free elections ; freedom to stand for election ; free look ; freedom of information ; freedom of assembly. This analysis defines European democracy as being representative, accountable and free, in footings of human rights. His ideal theoretical account of democracy lineations what he believes a true democracy should endeavor to accomplish, that is ; effectual engagement ; equality in vote ; deriving enlightened understanding ; concluding control of the docket ; inclusion ; and cardinal rights. Dahl believes that political equality is desirable for regulating a province and the merely political system that derives its legitimacy and political establishments from the thought of political equality is a democracy. In order to analyze what political establishments would be necessary in a democratic province he constructed an ideal construct of democracy as a footing for comparing with the existent theoretical accounts of democracy already in being. To this terminal I shall distill the footing rules of democracy as observed by Dahl and utilizing them to build my ain ideal theoretical account of democracy so that it may be compared with the current constitutional colony in the United Kingdom in relation to the Church of England.

The basic rules that I have extracted from Dahl’s ideal theoretical account are ; free elections ; representation ; engagement ; answerability ; equality ; enlightenment ; inclusion ; and cardinal rights. From this I have devised my ain theoretical account which will be used to foreground the democratic shortages of the privileged place of the Church of England. My analysis will be based on the rules of ; representation, answerability, engagement ; equality ; inclusion ; plurality ; and human rights under the European Convention on Human Rights and Fundamental Freedoms.

Chapter 1: Constitution AND STATE NEUTRALITY

1.1 Constitution

The construct of “establishment” is one of great complexness which bears no individual accurate definition, doing it hard to measure what precisely any disestablishment of the Church of England would imply. In order to efficaciously measure the current constitutional colony it would be appropriate to research the thought of constitution and what defines constitution in the first case.

The Chadwick Commission provided a definition of constitution as “the Torahs which apply to the Church of England and non to the other churches.” Legal author Peter W. Edge has commented that the Chadwick definition is merely concerned with the Church of England, whereas the thought of constitution may be an abstract term which has merely been applied to the Church of England. By analyzing the Chadwick definition Edge has developed a fuller legal definition of constitution:

“A spiritual administration is established where there are Torahs which apply to that peculiar spiritual administration, qua that spiritual administration, which do non use to the bulk of other spiritual organisations.”

In his definition of constitution Edge high spots that establishment, as a legal concept, is non chiefly a inquiry for the Church of England, instead, like other legal concepts it is unfastened for argument by all members of the province, non merely those which it affects straight. This opens the treatment up as an issue of national importance and therefore warrants this treatment on the compatibility of “establishment of religion” with the involvements of broad democracy in the United Kingdom. To claim that a peculiar faith is non the faith of the bulk of the population is non a sound footing for a legal treatment, nevertheless, to analyze the branchings, values and bounds of a legal philosophy is a legitimate enterprise.

Edge claims that there are four chief countries of the jurisprudence that characterise constitution ; the constitutional Torahs ; the civil Torahs ; the condemnable Torahs ; and financial and belongings Torahs. While this is so true it is merely the first component, the constitutional Torahs, that shall be the focal point of this paper due to the focal point on constitutional reform and good administration. Law is non massive as it varies in signifier, rule and construction so to dig into the single civil, condemnable, financial and belongings Torahs would non be executable under the remit of this paper.

The “laws of establishment” are non a separate class of jurisprudence which has been created under one legislative act, instead, it was a progressive attack that may be defined through the cardinal privileges enjoyed by the Church of England. Phillimore J commented on the current colony:

“A Church which is established is non thereby made a section of the province. The procedure of constitution agencies that the province has accepted the Church as the spiritual organic structure in its sentiment genuinely learning the Christian religion, and given to it a certain legal place, and to it’s edicts, if rendered under certain legal conditions, certain civil sanctions…the Church of England is a uninterrupted organic structure from its earliest constitution in Saxon times.”

However, the statement that the Church of England best represents the Christian religion no longer holds any H2O. The National Census of 2001 indicates the undermentioned information on spiritual association for Great Britain: 71.8 per cent Christian, 2.8 per cent Muslim, 1 per cent Hindu, 0.6 per cent Sikh, 0.5 per cent Jewish and 0.3 per cent Buddhist, whereas 15.1 per cent of the population had no faith and 7.8 per cent of people chose non to province their faith. Although about 72 per cent of British people profess to be Christian, the Church of England represents merely one of many Christian denominations in Britain. It has besides been contested that these statistics are inaccurate as association with Christian denominations is based on persons being brought up in nominally Christian families. Furthermore, it has been suggested that a diminution in Church attending represents a demand to disestablish an establishment that is bit by bit losing support and which may in bend undermine the legitimacy of a authorities that affords province privilege to such an establishment.

The thought of disestablishment is non a new construct, so it was really popular at the terminal of the 19th century before other issues dominated the political docket. However, late there has been an outgrowth in the call for disestablishment and the issue is one time once more crawling up the docket.

1.2 Attempts to Disestablish in the late 19ThursdayCentury

By following a brief lineation of failed efforts at disestablishment it is hoped that attending will be drawn to the significance and magnitude of disestablishing the Church of England and how the grounds for failure over a hundred old ages ago have no footing for resistance to any such effort in the 21stCentury. Furthermore, there is an overruling democratic imperative which should non be ignored in the visible radiation of spiritual equality and human rights.

The late 19th century represented a period of intense involvement in the disestablishment of the Anglican Church in England on the footing that such disestablishment is indispensable in accomplishing spiritual equality. This construct was most outstanding with the Chapelgoers who were the frontrunners of disestablishment in the latter portion of the 19th century.

Although disestablishment was widespread among Nonconformists there was discontent come uping amongst the Anglican community who acknowledged that there were defects in being controlled by a multi-faith House of Commons.

One ground for the failure of disestablishment in England was the historic deficiency of integrity among Chapelgoers over this issue throughout much of the 19th century. The Liberation Society was ne’er successful in converting people outside the Anglican Church that a separation of church and province was cardinal in the aspiration of spiritual equality.

A 2nd ground for failure to disestablish the Anglican Church in England was the attitude of W. E. Gladstone, the Broad leader during most of the late 19th century. Although Gladstone was an advocator of spiritual equality, as his administration’s parliamentary record showed, he was noncompliant in his support of the Established Church of England. Despite recreant members of the society working outside the party their failure merely highlighted the importance of the support of a major political party in any effort to pass on disestablishment.

Although Gladstone was the driving force in disestablishing the Church in Ireland he remained relentless in his positions towards the Church of England. In an effort to weaken the call for disestablishment he addressed specific grudges against the Church of England, which in bend picked apart any statement constructed in favor of disestablishment.

Without altering his positions on the Church of England, Gladstone displayed a greater tolerance for eventual disestablishment in Scotland and Wales. In 1885 he admitted that the Established Churches in both Scotland and in Wales serviced a little minority of the people and there would be no issue in leting each state to make up one’s mind upon its ain destiny. But he argued that the state of affairs in Wales was more hard than in Scotland because the Church in Wales was organically one with the Church of England.

Possibly the most important factor in the failure to disestablish the Church of England was because as a political issue it became overshadowed by more urgent emergent issues. Irish Home Rule destroyed any opportunity of disestablishment being a hot political subject in the 1885 general election, which was worsened by dissension over the issue of Home Rule between the Chapelgoers and the Liberal Party.

1.3 Recent Attempts to Disestablish

In the late eightiess and early 1990s MP Tony Benn proposed two Bills to disestablish the Church of England, the first in 1988 which merely had one operative subdivision:

“The Church of England shall discontinue to be established by jurisprudence, and no individual shall, after the passing of this Act, be appointed or nominated by Her Majesty or any other individual, by virtuousness of any bing right of backing, to an ecclesiastical office in the Church of England.”

He besides addressed the disestablishment of the Church of England in his Commonwealth of Britain Bill in 1991 where it was proposed that the Church of England be “disestablished” and powers over philosophy and religion be transferred to the General Synod. Both Bills were unsuccessful and they highlighted what a immense operation it would be to “disestablish” the Church of England. However, complexness and length are non legitimate evidences for the authorities to avoid the issue, particularly when democracy, the foundation of British society, is being compromised.

Current Archbishop of Canterbury, Dr Rowan Williams, has added fuel to the increasing demand for a complete disestablishment of the Church of England. Talking on BBC Radio 4’s “World at One” he commented that following parts of Islamic Sharia jurisprudence would assist keep societal coherence. These remarks prompted an unforeseeable recoil and public tumult, in bend go forthing many oppugning the topographic point of spiritual leaders in public life, and more specifically, the place of the Church of England as the established church. Co-director of think-tank “Ekklesia” , Jonathan Bartley, commented that: “ Leting spell of privilege is a far better informant to the Christian message than either cleaving on to it, seeking to continue it on a broad footing, or talking for others instead than prosecuting them as peers. ”

A gesture naming for the disestablishment of the Church of England has been listed in the House of Commons as 666. Labor MP John Austin, who has repeatedly tabled Early Day Motions pressing disestablishment, put down his latest gesture on January 9Thursday2008 as MPs debated trashing Britain ‘s blasphemy Torahs, the jurisprudence of blasphemy itself stand foring Christian privilege protected by the jurisprudence.

1.4 Secularism

Secularism is the rule of province neutrality in spiritual life whereby the province and its establishments grant no spiritual privileges to any spiritual group or administration. By the very definition of secularism it is clear that the United Kingdom can non name itself a secular province until it has cut official ties with the Church of England, to which it grants legion spiritual privileges over all other faiths and none. The construct of secularism does non compromise spiritual belief, nor does it seek to sabotage a individuals individual spiritual strong beliefs, instead, it suggests the parametric quantities which are acceptable in footings of spiritual plurality whereby an person can attest his or her faith. Secularism is a end which any province that calls itself a democracy should endeavor to accomplish and I shall sketch the virtues of such an aim every bit good as foregrounding how faith in public life may sabotage the involvements of democracy.

Due to increasing spiritual pluralism in the developed West organised faith and the involvements of democracy have become progressively “uneasy bedfellows” . The bing Christian denominations must now be added to an increasing figure of new cults and, more significantly, significant Muslim and other non-European spiritual communities who find the bing colony between faith and the province debatable. This turning spiritual plurality is apparent in the United Kingdom yet the Church of England remains by jurisprudence established despite its capacity to marginalise other religion groups and those of no religion. The colony is extremely prejudiced and has created an unneeded struggle. If faith were to hold no function in public life so every group would be on a flat playing field with equal chance to act upon public determinations by manner of involvement groups. As to those who do non belong to any spiritual administration the constitution of a province faith has placed primacy on faith and therefore discriminates against those who do non keep any beliefs.

One instance put frontward for secularity, that is the secularization of public life, is the “Jefferson Compromise” which was defended by Richard Rorty. Rorty argues that modern Democrats should privatize faith without trivializing it and that the spiritual experience is appropriate for what we do with our loneliness in an unfastened and civil society where 1 is entitled to freedom of spiritual worship. He submits that a democratic civil order therefore has no pick but to guarantee that spiritual trusters are guaranteed their freedom to idolize their God in private in return for the right of non-believers to populate without spiritual misrepresentation within the public spheres of civil society and the province. Such an statement seems logical yet the United Kingdom has failed to vouch such rights to all its citizens. The entries by Rorty have many virtues, most prominent of these being the rule of equality whereby he outlines a treaty in which each persons ain beliefs are protected through the absence of faith in public life.

Secularists believe that democracy requires the separation of church and province and that citizens be emancipated from province and ecclesiastical diktat in order that they may idolize harmonizing to their scruples and ethical opinions. In the bible Jesus is quoted as stating “Render to Caesar the things that are Caesar’s ; and to God the things that are God’s” . This phrase is equivocal but basically refers to a separation of the religious and the earthly kingdoms, or, the separation of the church and the province. This presupposes an unfastened and tolerant civil society which operates within a pluralist construction in order to avoid resentment so that each individual can bask spiritual freedom without being confined to the dogmatic beliefs and codifications of behavior of others.

In a instance before the European Courts the issue of secularism was addressed in relation to the erosion of a headscarf and a struggle with constitutional jurisprudence. In Sahin V Turkey ( 2005 ) it was held that the Constitutional Court’s trust on the rule of secularism was paramount in the prohibition on have oning spiritual garb and that “where the values of pluralism, regard for the rights of others and, in peculiar, equality before the jurisprudence were taught and applied, it was apprehensible that the governments should wish to continue the secular nature of the fundamental law and so see it contrary to such values to let spiritual garb to be worn” . In this instance it is evident that the European Courts perceived secularism as a cardinal rule of democracy in Turkey and as such spiritual belief and the freedom to attest such beliefs were secondary to the rules of democracy. I submit that in building any theoretical account of democracy one of the cardinal constituents should be province neutrality in public life. Secularism is a cardinal construct in any democratic province and presents the lone logical and just agencies of protecting every individuals right to single belief and right to non belief.

Chapter 2: ANGLICAN BISHOPS IN THE HOUSE OF LORDS

2.1 Background

The presence of the 26 most senior bishops of the Church of England in the House of Lords is a unstable state of affairs and arguably the most seeable manifestation of constitution. The current constitutional colony is a katzenjammer of Medieval times, which predates the Reformation and reflects the historical place of Anglican bishops as outstanding land proprietors and advisors to the Crown. Until the mid-nineteenth century the Anglican episcopate constituted a important cabal of the 2nd chamber, nevertheless, the Diocese of Manchester Act 1847 and the subsequent Acts disestablishing the Churches of Ireland and Wales provided for the current agreement of 26 bishops. Automatic rank to the chamber is associated merely with the five historically pre-eminent secs of Canterbury, York, London, Durham and Winchester, while the 21 other seats are filled on the footing of senior status. The 26 seats held by the Anglican bishops are the lone formal proviso made for the representation of faith in the 2nd chamber in its present signifier, and while other members of the House of Lords have strong links with assorted religion groups, and might be seen as supplyingde factorepresentation of the point of views and beliefs of such groups, it is merely the Church of England that has seats reserved for its representatives.

It is anomalous that bishops should sit in the legislative assemblyex officioas this consequences in a duplicate representation of spiritual positions. This discriminates non merely against other faiths, whether they are Christian or non-Christian groups, but besides against the non-religious, who, as I shall discourse in more item subsequently, have no formal representation based entirely on being non-religious. I am non recommending that such commissariats should be made, for either other spiritual groups or non-religious groups, instead, in the involvements of plurality and equality the most logistic and discoverable end would be to extinguish any signifier of representation based entirely on faith, and to that terminal, and within the remit of this treatment, the 26 seats held by the Anglican bishops should be revoked.

2.2 Proposed Reform of the House of Lords

The broader issue of reforming the House of Lords has been a hot subject throughout the last decennary, and while reformation of the upper chamber is non the focal point of this paper, the subsequent studies and documents published late address the issue of the Anglican bishops in the upper chamber.

The Fifth Report of the Public Administration Select Committee has been the most extremist in it’s attack to the senior bishopssixtheir place in the House of Lords:

“If we are serious about fiting Britain with a modern Parliament and fundamental law, it is clip to modernize this facet of our fundamental law excessively, and to convey to an terminal formal representation of the church in Parliament…we recommend that the Bishops of the Church of England should no longer sitex officiofrom the clip of the following general election but one.”

This study has recognised both the dated nature of our constitutional colony and the demand to acquire rid of the bishops in order to to the full modernize Parliament. However, both the Wakeham Report and the government’s two white documents on the issue defend the place of the Church of England in Parliament. While they recommend that the bishops should stay the Wakeham Report and the 2001 White Paper agree that the figure of seats so reserved should be reduced from 26 to sixteen, while the 2007 White Paper claims that presuming that the overall size of the House was to be reduced 26 Anglican bishops could non be justified.

Recommendation 1

The 26 Anglican Bishops in the House of Lords should discontinue to sit in this House on an ex officio footing

While the Wakeham Report and the White Papers agree that the figure of bishops should be reduced to sixteen they diverge on their attack to suiting representatives of other faiths. The Wakeham Report recommends that 26 seats should be reserved for the spiritual representatives of the states of the United Kingdom, and based on the population of each of the states in the United Kingdom 21 seats should travel to Christian denominations in England, and five to members stand foring the Christian denominations of Scotland, Northern Ireland and Wales. It recommends that of the 21 topographic points reserved for Christian denominations in England, 16 should be reserved for the Church of England. The Wakeham Report recommends that the Appointments Commission should be responsible for choosing the 10 members from other Christian religion, five from England and five from Scotland, Northern Ireland and Wales jointly, and should besides guarantee that five seats are reserved for members of non-Christian denominations. The Report is careful to advert the significance of secular positions every bit good as spiritual positions, and recommends that both be accommodated in the new format of the house, nevertheless, the Report fails to do any commissariats to reserve such seats for secular representatives as they have done for the spiritual.

The chief trouble in accepting the presence of the Anglican bishops in the upper chamber is that rank rates of the Church of England are skewered by its rank methods. Constitution has afforded the Church of England an political orientation of rank which differs from any other denomination in the UK as it operates on an nonvoluntary footing, accepting all members who do non take positive stairss to put themselves outside of its community at any point in clip.

Recommendation 2

The method of rank to the Church of England should be on a voluntary footing like every other denomination in the UK so to let every individual born in England the free will to either choose their ain faith or none at all.

Possibly it is the instance that from the beginning the Wakeham Commission was restricted in its range as the White Paper set uping the Royal Commission explicitly stated that the 26 Anglican bishops were to stay in the House. It states:

“The Government does non suggest any alteration in the transitional House of Lords in the representation of the Church of England within the House. The Bishops frequently make a valuable part to the House because of their peculiar position and experience. To guarantee that part remains available, the Government proposes to retain the present size of the Bishops ‘ bench which we accept is justified…”

It has been claimed that this diktat must hold tested the Commission’s inventiveness to the bounds as to how to warrant the indefensible.

The White Paper 2001 lacks a batch of the item that the Wakeham Report has provided in its attack to suiting other representatives of faith. It claims that the proposals set out by the Wakeham Report are unachievable as many other denominations and religion groups lack the hierarchal construction that would present readily identifiable representatives and that there are more faith groups than there are proposed seats. The White Paper merely recommends that the Appointments Commission should guarantee that it appoints representatives of the other faith communities in the United Kingdom. While the 2001 White Paper does non take into history the positions of the non-religious the 2007 White Paper of the House of Lords reform does reference that the authorities will necessitate to give farther consideration as to how to suit the positions of other faiths and none.

2.3 Problems

Should other spiritual groups be included in the House of Lords there is the inevitableness that excluded groups would experience discriminated against, or those groups that have been included may experience that their degree of representation is disproportionately little, making factionalism within the house and perchance taking to claims of racism. The National Secular Society ( “NSS” ) have submitted that a “reformed” House of Lords that contained extended spiritual representatives would non merely go impracticable, but would be distracted by sometimes blatant sectarian and doctrinal statements, and could, if it were more than minimum in figure, balloten axisand even keep the balance of power in argument over specialized issues. It follows from this that most spiritual philosophies oppose many of the cardinal freedoms enjoyed in the UK, such as abortion, divorce and homosexualism.

A outstanding job sing the Anglican Bishops in the House of Lords is one that highlights a lack in degeneration. Former Labour MP for West Lothian in Scotland Tam Dalyell coined the term “the West Lothian Question” during argument on Scots degeneration in the seventiess. Hi ailment was that he would be able to vote on personal businesss refering local constituencies in England and Wales at Westminster but non on local personal businesss on his ain constituency in Scotland. MPs from the devolved states within the United Kingdom must sit in Westminster in order that their state can take part in affairs of foreign policy, defense mechanism and revenue enhancement, every bit good as affairs of involvement entirely to England and Wales as their authorities is the authorities of the United Kingdom at Westminster. On the impudent side as the authorities for the United Kingdom is the authorities for England the topographic point of Church of England Bishops may be defended. However, as the UK authorities holds ultimate power over all the devolved states the bishops present a job. The nature of degeneration has allowed spiritual representatives from purely one state to hold a topographic point in the authorities of the UK which presides over all its states. One is so left to inquire what possible statements could back up this democratic shortage?

One of the most outstanding entries for the inclusion of representatives of faith groups in the House of Lords is that “religious representation helps in the acknowledgment of the portion that moral, philosophical and theological considerations have to play in debating political and societal issues.” This badly undermines the capacity of the other Lords Temporal in the House to adequately show such positions. It is this thought that Lords Spiritual are best equipped with the necessary moral and philosophical tools, combined with the thought that Parliament is capable and accountable to a higher authorization, “the Queen in Parliament under God” , that badly undermines our whole construct of democracy. The Wakeham Report notes that:

“For some of us, the presence of the Lords Spiritual is a mark that Governments are in the terminal accountable non merely to those who elect them but besides to a higher authority.”

With the extreme regard for faith, it should be said that the thought of being accountable to a higher authorization is non merely a position non held by a important proportion of the population, but is besides basically an unproved and imprecise impression that could technically be equated to mythology, which is non a sound footing for an efficient system of authorities in the 21st century. This should be viewed with Dahl’s theoretical account of democracy, one cardinal component of which was enlightenement. In an age of enlightenement and scientific progresss it is hoped that fact and cognition would move as the most certain and democratically sound footing of authorities.

We are in an age where the thought of the supreme value of democracy, and the impression that power rests with the people, thereby rendering the thought that the Lords Spiritual are justified on the footing that they are accountable to a higher power seem slightly of an incompatibility. It might besides be suggested that such answerability to a higher authorization need non rest in a Parliamentary context, instead, alternatively of compromising the construct of democracy such answerability can be enforced from outside Parliament. As has already been stated in Chapter 1, we live in an age where the value of democracy is regulations supreme and as such answerability should lie with elective representatives entirely. If answerability is a cardinal characteristic of democracy so elected politicians should be accountable for their ain actions to themselves entirely as this is why they have been elected to office in the first case. Accountability to a higher power does non account for the beliefs of the non-religious who can non in good scruples unrecorded by the regulations made by individuals who claim to merely be accountable to an abstract higher power.

While these documents do try to turn to non-religious groups they fall short of doing any important recommendations and topographic point a premium on the positions that spiritual groups have to show. I submit that that the current state of affairs is prejudiced against other faith groups, and to suit spiritual positions and non non-religious creates a farther degree of favoritism and exclusion. Religious representatives have no topographic point in a political forum on anex officiofooting entirely, that is non to state that such members have a important part to do on their single virtues. If faith is mixed into our legislative assembly so such representatives should be seen as political. Many members of the House are spiritual but are appointed on political virtue, and as such their single beliefs and strong beliefs, spiritual or otherwise, are portion of their political composing. Sing this, privilege should non be given to religious or non-religious strong beliefs as it is lone portion of a political docket.

A concluding concern is the chance of the Church being pulled towards spiritual groups in states with undemocratic authoritiess and hapless human rights path records. The Church of England is portion of the Anglican Communion which is made up of 38 “self-governing churches.” In the past few old ages the Church has faced jobs of being pulled towards values of the other churches of the Anglican Communion in the “global south.” The chance of a split was highlighted through the argument on the assignment of homosexual bishops which saw a split in the positions of the Anglican Communion, with strong resistance coming from churches in Africa. The Church of England and its committedness to the Anglican Communion should be of no involvement to anyone outside of the church, nevertheless, as it remains established by jurisprudence there is a public involvement in any force per unit areas placed on the church to conform to undemocratic and human rights deprived instructions from other churches in the involvements of the Archbishop of Canterbury keeping a facade of integrity. Alliances by an national church with basically undemocratic establishments undermines the values held in the United Kingdom, where, for illustration, homosexual rights have been embraced through the Civil Partnership Act 2004.

Recommendation 3

Religion, or non-religion, should non move entirely as evidences for naming a member to the House of Lords on an ex officio footing.

Chapter 3: THE POSITION OF THE MONARCH

Although most of the commissariats associating to the place of the Monarch are simply symbolic they are however important as the Queen is Head of State. The most dramatic elements of the current constitutional colony are: the double function of Head of State and “Supreme Governor of the Church of England ; ” the Protestant sequence of the throne ; explicit prejudiced commissariats forestalling Roman Catholics go uping to the throne ; spiritual elements in both the enthronement ceremonial and the enthronement curse ; and the function of “defender of the faith.” There is besides the inquiry of a possible breach of human rights under the European Convention of Human Rights with regard many of these issues, something that is every bit yet ill-defined as to what rights the Crown, or more specifically, Queen Elizabeth II holds as an person with single legal personality.

3.1 Double Role of Head of State and Supreme Governor of the Church of England

The rubric of Supreme Governor is rooted in Tudor history when Henry VIII was King. At the clip apostolic authorization was the spiritual philosophy that presided over England, nevertheless, when the Pope refused to invalidate the matrimony between Henry and his first married woman, Katherine of Aragon, Henry took the affair into his ain custodies and sponsored a commission of ecclesiastical faculty members which declared that the Pope had usurped his authorization over the Church of England. The subsequent statute law asserted Henry’s place as the Head of the Church of England. This rubric was altered by his girl Queen Elizabeth I who believed that Christ entirely was the caput of the Church, and as such the rubric was altered to “Supreme Governor of the Church of England” through the Act of Supremacy 1559.

This double function nowadayss obvious jobs in footings of both symbolism and national integrity, and democracy. As a symbol of integrity for the state the Queen, the Head of State, or any subsequent sovereign is required to take on the function of Supreme Governor. This is an estranging experience for any topic of the United Kingdom who does non tie in with the Church of England, or any faith for that affair. Leftist think armored combat vehicle group The Fabian Society undertook an in-depth analysis of the place of the Monarch in todays society and published their findings in a study. The Commission’s reading of “representativeness” was the implicit in characteristic in the unpicking of the Sovereign’s public nexus with the Church of England:

“… [ the ] activities and behavior of the office of Head of State should be characterised by inclusiveness ; it should actively avoid cases of exclusivity and favoritism and should be seen to tie in with all parts of…British society.”

There is a clear deficiency of democracy and representation if the office of Head of State inherits the function of being the caput of a spiritual administration. In a book by a former archbishop of York certain facets of the established church are highlighted as being incompatible with public life. It is claimed that the established church should be the keeper of the states scruples and uncompromisingly continue the jurisprudence of God as revealed in the Scriptures. He besides remarks that the church, through its leaders, should demand obeisance to bids of God which are in danger either of being broken or ignored, and should protest smartly against policy or Acts of the Apostless which are obviously abhorrent to his word. Despite this the Monarch is both leader of the Church and Head of State who must accede to any measure before it becomes an Act of Parliament. This presents jobs as to conscience when empowering a new jurisprudence that would be contrary to the instruction of the church.

No British Monarch has refused to give the royal cast to a measure since Queen Anne refused to go through the Scotch Militia Bill in 1707. Of class Queen Anne ruled in the yearss before an outgrowth of cardinal freedoms and human rights, so there is much argument over the issue of Queen Elizabeth II as sovereign possessing any cardinal human rights and how this may be important for her and for the hereafter of her work and the fundamental law. The issue highlights how the current colony has incompatibilities with the construct of broad democracy and how the functions of Head of State is incompatible with the function of Supreme Governor of the Church O England. Article 9 of the European Convention on Human Rights ( ECHR ) , which is embedded in the Human Rights Act 1998, sets out that “ [ vitamin E ] veryone has the right to freedom of idea, scruples and religion.” Although the Monarch acts on the advice of curates, it is a affair of the monarch’s personal privilege as to whether they sign the statute law as there is no constitutional demand that blessing should be given automatically. Oone of the most influential minds of today on the topic of the personal nature of the direct legal Acts of the Apostless of the sovereign is Professor Vernon Bogdanor who maintains that:

“ [ tungsten ] biddy exerting the personal privileges, the autonomous Acts of the Apostless in a personal capacity and non on the advice of ministers.”

To this terminal it can be said that the sovereign acts on their ain scruples and as such nowadayss a job as to the blessing of statute law. The first bed to this job is that the sovereign is in an unfortunate place whereby authorization has diminished over the old ages with the rise of parliamentary authorities and a more democratic system of passing. It would be damaging to the hereafter of the sovereign to decline the transition of a measure as to make so would sabotage the democratically elective authorities. There is hence about a necessity to go through any statute law put before them. However, as I have already outlined, there is no constitutional jussive mood to automatically go through a piece of statute law and therefore it is done on the Monarch’s scruples. This presents a struggle where a certain measure may non rest easy on the monarch’s scruples and as former Archbishop of York, Cyrill Garbett, outlined, the leaders of the church must protest smartly against policy or Acts of the Apostless which are abhorrent to God’s word. An obvious illustration of this may be abortion. In 1980, some thirteen old ages after Queen Elizabeth II signed the Abortion Act 1967 the Church of England Board of Social Responsibility said in a statement that:

“In the visible radiation of our strong belief that the fetus has the right to populate and develop as a member of the human household, we see abortion, the expiration of that life by the act of adult male, as a great moral evil.”

This evidently presented a struggle for the Queen as the church for which she is supreme governor opposed the activity that she as Head of State had the power to reject. This component of mutual exclusiveness badly restricts the Church of England as its supreme governor is unable to properly support its policies and docket.

Such a struggle was arose in Belgium in 1990 when King Baudouin refused to subscribe a Bill passed by the Belgian Parliament which legalised abortion. The King wrote to the Prime Minister claiming that his scruples forbade him from giving his Assent to it, so, as a manner of debaring crisis, the King was declared “unable to reign” for a twenty-four hours and a half, during which clip the council of curates signed the jurisprudence on his behalf, which is provided for in the Belgian fundamental law.

While the scruples of the sovereign may be restricted and they may happen a struggle in involvements the being of this double leading causes concern for any topic who does non belong to the Church of England. It is one thing to hold a Head of State who is conflicted by their ain morality and scruples, such was the instance for King Baudouin, but the issue has far greater deductions when the office of Head of State requires coherency to a peculiar spiritual group.

Recommendation 4

The functions of Head of State and Supreme Governor of the Church of England should be carried out by two separate organic structures.

Recommendation 5

The Head of State should non be inhibited in the exercising of freedom of scruples.

3.2 An Curse of Allegiance?

A study led by Lord Goldsmith and published by the Ministry of Justice in March 2008 has revealed recommendations that school departers should take an curse of commitment to the Queen. As this paper has discussed the mutual exclusiveness of the double function of the Queen as Head of State and Supreme Governor of the Church of England and it has highlighted the violation on democratic values I further subject that any programs to hold a school departer swear commitment to the Queen would be a gross breach of the cardinal right to freedom of faith as commitment would basically be sworn to the established faith. The issue of democratic shortage sing degeneration as discussed in Chapter Two has surfaced as politicians from Scotland and Wales would be forced to utilize devolved powers to forestall such an curse and a Nationalist politician in Northern Ireland claimed that an curse to Queen and Country would be “divisive and dangerous.” The issue of an curse of commitment to the Queen or any other Head of State is non within the remit of this paper, nevertheless, any treatment on this affair should gain the restrictions of such proposals so long as the Church of England remains by jurisprudence established.

Recommendation 6

So long as the Monarch continues to busy the double function of Head of State and Supreme Governor of the Church of England any authorities proposals sing an Curse of Allegiance to the Queen should be disregarded

3.3 The Protestant Succession

The legal commissariats enacted to protect the Protestant sequence of the throne represents a period of anti-Catholicism, and in a modern context they appear to run as a mechanism for the saving of Christianity as the province faith, doing them an easy mark for those who argue that the province should be impersonal in spiritual affairs. These commissariats could be said to be in direct struggle with Articles 12 and 14 of the ECHR, that is, the right to get married and establish a household, and forbiding favoritism in the employment of Convention rights on assorted evidences, including faith, severally. ) They forbid any inheritor from get marrieding a Roman Catholic, otherwise they shall give up their claim to the throne, and they secure the Protestant sequence and Protestant religion. There are four chief pieces of statute law that would necessitate either amendment or abrogation ; Bill of Rights 1688 ; Coronation Oath Act 1688 ; Act of Settlement 1700 ; Act of Union with Scotland 1706 ; and the Accession Declaration Act 1910. I shall see each in bend and highlight how they are incompatible with the involvements of democracy by manner of favoritism.

3.3.1 Bill of Rights 1688

Under James II Parliament had been prorogued and ne’er met once more until William of Orange ascended in 1688. When the Crown was conferred upon William and Mary by declaration it was published as a announcement, which was later enacted with some add-ons in the signifier of the Bill of Rights 1688. Section 1 of the Bill of Rights claims that any individual who is in Communion with Rome, Catholics, or any individual who shall get married a Roman Catholic shall non be able to inherit the throne. This is clear favoritism and has no footing in a democratic society in the 21stCentury.

Recommendation 7

Section 1 of the Bill of Rights 1688 should be repealed

3.3.2 The Coronation Oath Act 1688

This Act does non know apart against Roman Catholics specifically but it does order that the enthronement curse should necessitate the sovereign to continue the Torahs of the Protestant reformed faith established by jurisprudence, and as such discriminates against all other faiths and non-religions. It requires that the sovereign promises to their extreme ability to:

“maintaine the Laws of God the true profession of the Gospell and the Protestant reformed faith established by jurisprudence [ … ] and [ … ] continue unto the bishops and clergy of this kingdom and to the churches committed to their charge all such rights and privileges as by jurisprudence bash or shall appertain unto them or any of them”

This places a load on the holder of the office of Head of State to protect the Torahs of the Church of England, an curse that an single belonging to any other spiritual group, or none, could non, with good scruples, do. This restricts and discriminates against any individual non belonging to the Church of England.

Recommendation 8

S.3 of the Coronation Oath Act should be repealed.

3.3.3 Act of Settlement 1700

TheAct of Settlementwas deemed necessary to procure the Protestant sequence following the decease without inheritors of Mary, the decease of the so inheritor, Princess Anne ‘s merely lasting kid, and the likeliness of William’s decease without inheritors. It devolved the Protestant sequence onto Princess Sophia the Electress of Hanover, and her inheritors, who were Protestants. The Act reaffirms the Bill of Rights in relation to individuals who “shall profess the Roman faith or shall get married a papist” . The Act besides reiterates the necessity to be in Communion with the Church of England:

“That whosoever shall hereafter come to the ownership of this crown shall joyn in Communion with the Church of England as by jurisprudence established”

It should be noted that the two Acts of 1688 did non expressly necessitate the sovereign to be a member of the Church of England, they simply dictate that the faith should be upheld, whereas subdivision 3 of the Act of Settlement expressly requires rank of the established Protestant faith.

Recommendation 9

Sections 2 and 3 of the Act of Settlement 1700 should be repealed.

3.3.4 Act of Union with Scotland Act 1706

Article II of this Act sets out that:

“And that all papists and individuals get marrieding papists shall be excluded from and for of all time incapable to inherit possess or bask the imperial Crown of Great Britain and the rules thereunto belonging or any portion, thereof and in every such instance the Crown and authorities shall from clip to clip fall to and be enjoyed by such individual being a Protestant as should hold inherited and enjoyed the same in instance such papist or individual get marrieding a papist was of course dead harmonizing to the proviso for the descent of the Crown of England”

This, once more, reiterates the limitations of the old Acts with respect to favoritism against Roman Catholics and Ascension to the throne. The changeless statute law guaranting that the Protestant faith is protected and that Roman Catholic have no claim to the throne reflects a urgently prejudiced government which has overstepped the bounds of a democratic society, particularly now that such commissariats run contrary to the ECHR.

Recommendation 10

Article II of the Union with Scotland Act should be repealed.

3.3.5 Accession Declaration 1910

The most recent of the prejudiced pieces of statute law is the Accession Declaration 1910 which rewords the enthronement curse but still requires the sovereign to be a faithful Protestant and uphold the Protestant sequence.

Recommendation 11

The Accession Declaration should be repealed.

Recommendation 12

Sequence to the throne should non be based on a authorization to be in Communion with any spiritual administration.

Recommendation 13

Marriage to any individuals belonging to a spiritual group other than that of the reformed Protestant faith established by jurisprudence should non be a legitimate land for disowning sequence to the throne.

Recommendation 14

The Coronation Oath should no lone wolf require the sovereign to protect the Reformed Protestant faith as established by jurisprudence, or any other faith.

3.4 Change from within Parliament

The issue of Protestant sequence has been straight addressed during the Prime Minister’s Question Time in December 1999, where Tony Blair was asked whether the Government intended to pass in order to let a member of the royal household to get married a Roman Catholic without losing their right to inherit the throne and to let a Roman Catholic to inherit the throne. Mr Blair’s response was that:

“The Government have ever stood steadfastly against favoritism in all its signifiers, including against Roman Catholics, and it will go on to make so… To convey approximately alteration to the jurisprudence on sequence would be a complex project affecting amendment or abrogation of a figure of points of related legislation…The Government have no programs to pass in this area.”

3.5 The Coronation

Certain facets of the enthronement have been dealt with above, such as the enthronement curse, nevertheless, the existent ceremonial demands reform as it symbolises the inclusion of the established faith and the exclusion of other faiths and none.

The historic school of idea behind the sovereign is the “Divine Right of Kings” , and traces of this are clearer in Britain than in any other European Country. It is submitted that Queen Elizabeth II is the lone life European Monarch to hold been anointed and crowned in a traditional spiritual ceremonial that rests on the impression of the Divine Right of Kings. The job lies in the thought that the sovereign must continue the Torahs of God, trusting upon God or the Church, and non the people of the democratically elected Parliament, for counsel. To widen the curse to other spiritual denominations and religions, such as Prince Charles has indicated a desire to make so by being “Defender of Faith” , as opposed to the “Defender of the Faith” , would farther estrange those religions that have non been included, and more so those of no religion.

The Head of State should be concerned with continuing cardinal human rights and non the philosophy of the Church of England ; the construct that the sovereign is answerable merely to “God” is non an acceptable rule of answerability for the Head of State, peculiarly 1 that is non elected, is non impeachable, nor otherwise accountable.

As an illustration of a democratic and inclusive enthronement oath attending should be drawn to Albert II of the Belgian, which was merely “I swear to detect the fundamental law and the Torahs of the Belgian people and to keep the national independency and the unity of the territory.”

Recommendation 15

The Coronation ceremonial and curse should be wholly inclusive by manner of exclusion of all spiritual elements.

Chapter 4: THE GOVERNANCE OF THE CHURCH OF ENGLAND

As the Established faith, the Church of England has a complex system of jurisprudence devising and administration which is interwoven into the jurisprudence of the kingdom, or, national jurisprudence. As such it enjoys certain privileges that are alone to its established place, but more significantly, it is badly crippled in its ability to self govern, showing issues of democracy, or deficiency thereof.

4.1 Senior Ecclesiastical Appointments

The procedure of naming bishops and other senior members of the Church of England is controlled by the authorities, with the church itself holding no control over its direction. The Prime Minister has a function in reding the Queen on certain assignments within the Church, such as its Bishops, every bit good as 28 Cathedral Deans, a little figure of Cathedral Canons, and some 200 parish priests. The Crown Nominations Commission, once the Crown Appointments Commission, was established by the General Synod in February 1977, set abouting the function of sing vacancies in diocesan dioceses and sing campaigners for such vacancies. The Commission decides on two names which shall be submitted to the Prime Minister for consideration, which may be given in order of penchant. The demand to subject two names is statutory under the Suffragan Bishops Act 1534. It has been the convention for more than a century that the Prime Minister advises the Monarch to put up the individual named foremost in the request.

This is debatable as it requires the authorities, elected by the whole of the United Kingdom, to pass clip make up one’s minding upon the senior degrees of direction of one spiritual denomination. This system represents a prejudice towards both one spiritual denomination and the construct of faith, and a prejudice against both other faiths and religions, and non-religions. Government clip and resources should non be consumed by such frivolous affairs as spiritual assignments. On another degree this agreement restricts the Church of England’s liberty and ability to self-govern as it is the authorities who appoints its senior members. Although the issue has, as yet, non come before the European Court of Human Rights it is rather clear that this anomalousness is in breach of the ECHR. Under Article 9 of the ECHR it is declared that:

“Everyone has the right to freedom of idea, scruples and religion… [ and ] Freedom to attest one ‘s faith or beliefs shall be capable merely to such restrictions as are prescribed by jurisprudence and are necessary in a democratic society in the involvements of public safety, for the protection of public order, wellness or ethical motives, or the protection of the rights and freedoms of others.”

There is a inquiry as to whether the Church of England has legal capacity as a corporate organic structure to convey a instance before the tribunals in Europe in an effort to recover a grade of liberty. In the instance ofChurch of X v UKit was held that a spiritual organic structure did non hold corporate legal personality and as such was unable to raise an action. However, subsequent law from Strasbourg has indicated that a church may exert the rights under Article 9 ( 1 ) of the ECHR as a corporate organic structure stand foring the positions of its members, yet the logical thinking for leting an application by a spiritual organic structure was left equivocal. InISKCON v. United Kingdomthe tribunal reasoned that the victim of be aftering restraints was the International Society for Krishna Consciousness, instead than the persons who applied at the same time. If this was applied to the current agreement sing ecclesiastical assignments in the Church of England it could be argued that it is the Church as a collective organic structure which is disadvantaged, instead than single members.

In relation to Article 9 ( 2 ) ECHR this is important as the governmental control over assignments, although “prescribed by law” , could in no manner be considered as “necessary in a democratic society in the involvements of public safety, for the protection of public order, wellness or ethical motives, or the protection of the rights and freedoms of others” . As such there is a clear dispute of Convention rights which could be remedied by raising an action jointly as “the Church of England” .

There have been recent moves on behalf of the authorities to rectify this anomalousness through the Green Paper, “The Governance of Britain” . New Prime Minister Gordon Brown has outlined his programs to reform the current system so that merely one name is passed on to the PM from the Crown Nominations Commission which he will in bend base on balls to the Queen, rendering the PM simply a “postman” in the procedure. Although this basically removes the Prime Minister from the equation no clear counsel has been given on how precisely the Reformed nomination procedure should work. Retaining the PM in this procedure is still a waste of authorities clip and does non turn to the

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