affiliated to the International Association of Constitutional Law
Two high profile cases concerning the approach of public authorities towards religion and identity, where the care and future of looked after children were concerned, have featured this summer.
Firstly, a Sikh couple were denied the opportunity to adopt a white baby by Adopt Berkshire, the Windsor and Maidenhead council-run adoption agency, and despite considerable political pressure and the intervention of the EHRC, the local authority refused to alter its position, stating only that it could not discuss individual cases. Some weeks later, the Times broke a story concerning a five year old girl of Christian heritage, fostered by a conservative Muslim family. The newspaper reports claimed that the child was denied her favourite meal as it contained bacon, had her cross taken from her and was subjected to comments denigrating non-Muslim women and culture. On this occasion, the council robustly hit back, asserting that the media coverage contained serious factual errors and sought to be inflammatory. Furthermore, the judge dealing with related proceedings took the comparatively unusual step of making an anonymised version of the Case Management Order publically available, in order to address some of the spreading misperceptions. In the midst of the media furore, Sir Martin Narey, the Government’s official adviser on fostering, stepped in to comment, and told the Telegraph that ethnicity and religion of foster carers was a secondary issue. He stressed that they did not matter in 2017.
Both controversies raise a variety of social and political issues, but the statement that religion and ethnicity do not matter in 2017 is undoubtedly problematic. Leaving aside the element of the remark relating to race (which deserves due attention in its own right) religion most definitely does matter as far as the UK legal framework is concerned. In light of the current geopolitical climate, it is difficult to imagine that any state could currently avoid confronting the tensions raised by conflicting worldviews and identities, but each legal system is bound to do this within the content of its own unique historical and cultural journey. This is not to suggest that supranational instruments such as the ECHR and the UNCRC are not of critical importance. However, the manner and form in which the rights and principles contained in these agreements play out will depend upon the social and juridical realities on the ground, and one key factor in the British case is the religious dimension of the Constitution itself. For this reason we need to get back to explore this dimension, however briefly, in the different national contexts that comprise Great Britain. Given the uncodified nature of the UK Constitution, and the absence of any impermeable barrier between constitutional and general law, it is unsurprising that this has had far reaching implications for the legal system as a whole.
Scotland, England and Wales each have a national Church, and in each case the Church has particular legal and historic bonds with the state. The terms of the Scottish model are set out in the Church of Scotland Act 1921, which declared the boundaries of spiritual and temporal authority in that context. There are also a variety of ways in which this relationship is manifested in Scottish law and society; for instance, the continuing role of the Church in state education – which in some respects is wider than that of the Church of England discussed below – as it goes beyond influencing policy on religious matters. See further, the Local Government (Scotland) Act 1994 s31.
The Church in Wales was formally disestablished by the Welsh Church Act 1914, but retains a significant number of the legal features of the establishment model in England nevertheless. For example, essentially the same framework of marriage law applies on both sides of the border: see further, the Marriage Act 1949 and the terms of the Marriage (Same Sex Couples) Act 2013, which were designed to accommodate the partially disestablished nature of the Church in Wales. The 2013 Act safeguards both the Church of England and the Church in Wales from any obligation to offer marriages to same-sex couples, since there is a general duty on Anglican parishes to marry individuals who are resident or have a qualifying connection. However, unlike the Church of England, the Church in Wales lacks the capacity to pass legislation with effects in secular law, and has needed special provision to ‘opt in’ should it wish in the future to conduct same-sex marriages. Equally, the Prison Act 1952 provides for prison chaplains in Welsh, as well as English prisons, to be Anglican, even though it was passed over three decades after disestablishment came into force.
The nation in which the ties are most noticeable is undoubtedly England, however. There are the obvious features of high establishment (a concept discussed by commentators like Carr), for instance the Lords Spiritual and the position of the monarch as Supreme Governor, but significantly, also a myriad of low establishment features, where this framework has a tangible impact upon the lives of citizens, can be found. Examples of this low establishment are the provisions related to matrimony and prisons discussed above, as well as the special position of the Church of England in determining local policy on religious education and worship. In compliance with the Education Act 1996 Chapter 3, this is set by the relevant Standing Advisory Council on Religious Education, bodies upon which the Church of England has guaranteed representation.
Despite the fact that none of this is exactly news hot of the press, and neither does it directly relate to the provisions of the Children Act 1989 or the Children and Families Act 2014, two key statutes applicable in relation to the Tower Hamlets Case and the Sikh adoption dispute, the backdrop of these constitutional relationships does have profound importance for these and other issues with a religious element. In fact, it has moulded and continues to mould, the wider legal framework.
Until the gradual and piecemeal reforms of the 18th and 19th centuries, for instance, the Universities Tests Act 1871 and the Jews Relief Act 1858, non-Anglicans were unable to attend university, be members of the legislature, serve as judges, local government officials or magistrates, and this Anglican privilege has somehow been preserved until nowadays by oaths and sacramental tests. Inevitably, support for the Church of England was embedded within the legal system as a whole, both consciously and unconsciously, whilst the position of the Church of Scotland was nominally acknowledged, but the framework as a whole was Anglo-centric and privileged members of the English Church.
When the intellectual and political tide did begin to turn, it was not by virtue of any seismic event which entailed a rejection of support for the Church of England, and this remained axiomatic as it always had been. Rather, a gathering acceptance of the idea that the state should not favour or disadvantage citizens on the basis of their religious convictions, meant a gradual opening up of Anglican privileges to other members of society. For instance, marriage law gradually offered mechanisms for more and more non-Anglican groups to conduct legally binding ceremonies. This began with initial concessions being made for Jews and Quakers in the Marriage Act 1753, and moved to non-religious civil marriage being offered by the Marriage Act 1836, as well as opening doors for Roman Catholics and Non-Conformists. With time, the legal framework embraced the current position, which is far more inclusive and where any faith group can offer such weddings if they are prepared to surmount the administrative hurdles (see further the Marriage Act 1949 as amended, and the Places of Worship Registration Act 1855). However, the current marriage system is not perfect, and there are important debates about whether non-religious groups should have the capacity to conduct marriages in England and Wales, as they do in Scotland, whilst the requirement to have a registered place of worship is problematic for some groups, such as Pagan communities, who would not worship in a building.
Even though it can be rightly regarded as haphazard and flawed, the general trajectory in Great Britain has been from a position of exclusive privilege for Anglicans, to an opening out of benefits for others in society, or in other words, a move from supporting simply the position of the Church of England, to supporting other faiths. Injustice was tackled not by stripping away privilege, but widening it, and it is just fair to highlight that this trend was not inevitable. Possibly, another tidier solution would have been to end all religious privilege in respect of marriage law, with the state opting to become the sole mechanism for legally binding marriage. In this hypothetical scenario the state could have left all religious groups to conduct whatever additional rites they pleased, albeit without juridical consequences. Nevertheless, that pattern was not followed, largely because this would not have been palatable to the decision-makers, and therefore, support for Anglicanism had to translate into a support for other faiths.
This pattern has been repeated in a variety of contexts, for example, charity law, which has moved from supporting Anglican purposes to the exclusion of others ( West v Shuttleworth (1835) 2 MY & K 684), to recognising the advance of religion as a charitable purpose Charity Act 2011, and defining religion very broadly Hodkin v Registrar General of Births, Deaths and Marriages. Moreover, crucially, when considering the criminal law on assault, it was accepted without question in R v Brown that religious motivation would justify otherwise criminal acts, and religious mortification and ritual male circumcision were explicitly declared permissible.
Time and again, these spoken and unspoken assumptions filtering out from the constitutional context, both current and historic, have an impact on legislation and case law, in addition to bodies seeking to apply it as a result. Religion has been, and remains, part of the legal system, and this has shaped the way in which cases involving religion are dealt with. It may well have been, arguably, a factor in both the Sikh adoption case where religion appears to have been given undue priority by the decision-making body, and in Tower Hamlets, where the suggestion of it being any sort of barrier was rejected by the local authority. The aim of this blog is not to comment on those individual decisions, but to suggest that in dealing with disputes relating to religion, it would be prudent to be aware of the context within which we are working, as our unique constitutional arrangements undoubtedly influence the way in which religion is approached by both our legislature and judiciary. As a result, openly acknowledging this, exploring what it means and debating a conscious way forward might help to avoid confused or inappropriate decisions where religious issues are concerned.
Dr Javier García Oliva, The University of Manchester
(Suggested citation: J. Garcia Oliva, ‘Why the Constitutional Treatment of Religion in Great Britain Matters in Religious Disputes’, U.K. Const. L. Blog (26th Sept. 2017) (available at https://ukconstitutionallaw.org/))