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Religion and Law in Twenty-First Century England: Tradition and Diversity

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Religious Rules, State Law, and Normative Pluralism - A Comparative Overview

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 18))

Abstract

The chapter provides an account of the many levels of relations between religion and law in England. The first section briefly outlines the historical developments leading to the establishment of the Church of England as the legally established church, and explains the current legal position of the Church of England and its relation to the Monarchy and the State. Subsequent sections analyse and discuss (a) the influence of Christianity on the English legal system, (b) the ways in which the English legal system accommodates other religions and religious organisations, (c) how religious beliefs and actions are accommodated in the work place, and (d) the legal and political response to ‘religious adjudication’ in Shariah councils or similar bodies. The chapter concludes that the English legal approach to the non-established religions can be described as a form of ‘benign neglect’. The State does not grant explicit minority group rights to religious groups, but it does not usually interfere in their internal affairs either.

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Notes

  1. 1.

    Although it can be argued that the traditional unity between England and Wales has been challenged in the course of the last few years, due to the process of devolution of powers in Wales, particularly as of the enactment of the Government of Wales Act 2006. An emerging Welsh jurisdiction is no longer a fantasy.

  2. 2.

    See N. T. G. Watkin, “Vestiges of Establishment: the Ecclesiastical and Canon Law of the Church in Wales” (1990) Ecc. L.J. 110–115.

  3. 3.

    Act of Supremacy 1534 and 1559.

  4. 4.

    Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37; [2004] 1 A.C. 546 at 156, per Lord Rodger of Earlsferry.

  5. 5.

    This title was confirmed by parliamentary statute in 1544, through the Third Treason Act of 1544 (35 Hen. 8 c. 3) and it has been maintained by subsequent legislation, such as the Royal Titles Act 1953.

  6. 6.

    See, for instance, the Thirty-Nine Articles of Religion and the revised Canons of the Church of England, Canon A7, Of the Royal Supremacy: “We acknowledge that the Queen’s excellent Majesty, according to the laws of the realm, is the highest power under God in this kingdom, and the supreme authority over all persons in all causes, as well ecclesiastical as civil”.

  7. 7.

    Although since 1976, a Crown’s Appointment Commission proposed two names to the Prime Minister, limiting the Head of Government’s powers substantially. This was renamed in 2003 as the Nominations Commission and since the Green Paper on the Governance of Britain, published on 3rd July 2007, the Prime Minister’s plays a far less significant role and the Commission only passes on to him/her one name, which must then transmit be transmitted by the Prime Minister to the Queen.

  8. 8.

    Bishopric of Manchester Act 1847.

  9. 9.

    The Church of England Assembly (Powers) Act 1919.

  10. 10.

    Submission of the Clergy Act 1533.

  11. 11.

    Education Act 1996.

  12. 12.

    Prison Act 1952.

  13. 13.

    Marriage Act 1753.

  14. 14.

    Case law (e.g. Maidman v Malpas 161 E.R. 526; (1794) 1 Hag. Con. 205 KB) has endorsed the right of parishioners to be buried in the parish churchyard regardless of their faith and the same approach has been taken by the canon law of the Church of England. In fact, Canon B 38 para. 2 states: “It shall be duty of every minister to bury, according to the rites of the Church of England, the corpse or ashes of any persons deceased within his cure”.

  15. 15.

    See below.

  16. 16.

    See Thoburn v Sunderland City Council [2002] EWCH 195 (Admin) [2003] QB 151, [62]

  17. 17.

    E.g. The Act of Settlement 1700, The Accession Declaration Act 1910 and The Royal Titles Act 1953.

  18. 18.

    Appointment of Bishops Act 1534 and the Suffragan Bishops Act 1534.

  19. 19.

    The Church of England Assembly (Powers) Act 1919.

  20. 20.

    E.g. The Human Rights Act 1998, the Charities Act 1993 and the Equality Act 2010.

  21. 21.

    Setting aside the position of the Church of England, with regard to other religious bodies, the UK courts have emphasized the significance of the principle of non-interference. As a sign of the respect for the autonomy of religious bodies, UK courts are usually reluctant to get involved in internal disputes within religious bodies. See Sant Baba Jeet Singh Maharaj v Eastern Media Group Ltd [2010] EWHC (QB) 1294. However, where there is a financial interest and in relation to the disposal and administration of property, courts may exceptionally intervene to enforce the laws of a religious group. See Forbes v Eden (1867) LR 1 Sc & Div 568.

  22. 22.

    For instance, it could be argued that a convention has been developed, according to which although the UK Parliament could legislate directly on the Church of England, the expectation will be for the Church of England to legislate itself, by means of measures.

  23. 23.

    E.g. The Employment Equality Regulations 2003., prior to the enactment of the Equality Act 2010.

  24. 24.

    Acts of Supremacy 1534 and 1559.

  25. 25.

    See The Church of England Assembly (Powers) Act 1919.

  26. 26.

    The database easily accessible at: http://www.legislation.gov.uk/

  27. 27.

    Education Act 1996, s 375(3).

  28. 28.

    School Standards and Framework Act 1998 s. 70 and Sch. 20 para. 3(3).

  29. 29.

    The presiding judge in the Church of England Court of Appeal.

  30. 30.

    Mr Justice Munby in Sheffield City Council v E and S [2005] 1 FLR 965 at p 1000.

  31. 31.

    Equality Act 2010, schedule 9, second paragraph.

  32. 32.

    For instance, the Abortion Act 1967, s 4(1) gives a right of conscientious objection to medical and other health care staff who have been asked to take part in abortion.

  33. 33.

    http://www.independent.co.uk/news/uk/home-news/catholic-adoption-charity-appeal-dismissed-2275012.html

  34. 34.

    Scottish Charity Appeal Panel App 02/13

  35. 35.

    Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) at 39.

  36. 36.

    Shergill & Ors v Khaira & Ors [2014] UKSC 33 at 46.

  37. 37.

    Shergill & Ors v Khaira & Ors [2014] UKSC 33 at 45.

  38. 38.

    See Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin) for the decision to grant judicial review and R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 for the final judgment.

  39. 39.

    See, for instance Kohn v Wagschal & Ors [2007] EWCA Civ 1022

  40. 40.

    AI v MT [2013] EWHC 100 (Fam)

  41. 41.

    H v S [2011] EWHC B23 (Fam)

  42. 42.

    XCC v AA & Anor (Rev 3) [2012] EWHC 2183 (COP)

  43. 43.

    Uddin v Choudhury & Ors [2009] EWCA Civ 1205.

  44. 44.

    http://www.theus.org.uk/the_united_synagogue/the_london_beth_din/about_us/

  45. 45.

    http://www.matribunal.com/

  46. 46.

    Maccaba v Lichtenstein [2004] EWHC 1577 (QB).

  47. 47.

    We are indebted to Frank Cranmer, for his invaluable assistance on this particular section.

  48. 48.

    The Scottish Court of Appeal.

  49. 49.

    R v Taylor [2002] 1 CAR 519.

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Acknowledgements

We would like to thank Frank Cranmer, Research Associate at the Centre for Law and Religion at Cardiff University and Fellow at St Chad’s College at Durham, for his invaluable suggestions and comments on a previous version of this contribution.

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Authors and Affiliations

  1. University of Manchester, Manchester, UK

    Søren Holm & Javier García Oliva

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  1. Søren Holm
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  2. Javier García Oliva
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Correspondence to Søren Holm .

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Editors and Affiliations

  1. Facoltà di Scienze Politiche e Sociali, Università Cattolica del Sacro Cuore, Milan, Italy

    Rossella Bottoni

  2. Università degli studi di Milano, Milan, Italy

    Rinaldo Cristofori

  3. Università degli studi di Milano , Milan, Italy

    Silvio Ferrari

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Holm, S., García Oliva, J. (2016). Religion and Law in Twenty-First Century England: Tradition and Diversity. In: Bottoni, R., Cristofori, R., Ferrari, S. (eds) Religious Rules, State Law, and Normative Pluralism - A Comparative Overview. Ius Comparatum - Global Studies in Comparative Law, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-319-28335-7_23

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