It seems remarkable that domestic public lawyers have been inclined to neglect the religious dimension of the United Kingdom constitution. Happily, in Religion, Law and the Constitution, Javier Garcı́a Oliva and Helen Hall correct that oversight. Indeed, as scholars whose expertise straddles both law and religion and public law, they are particularly well placed to undertake such a project. In the process, they have produced an ambitious and thought-provoking monograph which asks whether that religious dimension is not only an advantage or disadvantage for faith-based and non-faith-based citizens alike, but also in tune with fundamental pillars of the constitution, namely: the rule of law; parliamentary sovereignty; separation of powers; and human rights. Beyond this legal analysis, they provide extracts from interviews with more than a hundred individuals on modern issues of law and religious liberty.
The book focuses on developments in the area of the UK covered by England, Wales and Scotland. It omits Northern Ireland because of the loose nature of its quasi-establishment (the Church of Ireland was disestablished in 1870) and, moreover, because its inclusion would have required investigation of the history and contemporary context of the Republic of Ireland, significantly altering the dynamics of the study. Having defended this methodological point, Chapter 1 traces the evolution of Church–State relations in England, Wales and Scotland, revealing how – through establishment in England and Scotland and quasi-establishment in Wales – Great Britain retains a notably religious aspect to its constitution.
Chapter 2 considers the religious characteristics of these nations. The authors claim that those characteristics have grown out of establishment and are now as significant as – if not more significant than – establishment itself. Certainly, they permeate the constitution and wider legal framework. This shows that, far from receding in notability, religion has found support incrementally from the judiciary, the government and Parliament. The chapter evaluates how those characteristics have flourished throughout England, Scotland and Wales at three levels, using a Russian doll analogy. The biggest doll represents the overall positive stance which the state still takes towards religion as a phenomenon. This happens in various areas of law: for instance, family law, criminal law, education law, property law, employment law, equality law, tort and contract. Below the outer doll, the next doll highlights a generally supportive stance towards Christianity in law, for example through public holidays. At the innermost level, the smallest doll signifies establishment. The authors then scope the limits of the top level, or biggest doll, to check what constraints are placed on positive legal treatment of religion, before assessing academic and secularist/humanist criticism of that treatment. Finally in this chapter, they suggest that the tripartite religious fabric of Great Britain is not merely functional but beneficial for society and in harmony with the fundamental pillars of the UK constitution – a harmony that is tested in Chapters 4 to 7.
Accordingly, Chapter 2 performs a vital role in the book: it sets out a particular (and optimistic) vision of the part that religion is allowed to play in legal and social life, which is subsequently investigated as a matter of modern constitutional importance. Overall, and by accident rather than design, it is argued that establishment has laid the foundations for the ‘new’ way in which religion now operates and is treated in Great Britain. Indeed, while the tripartite religious model is not perfect, with not all religious groups participating in the same manner, Garcı́a and Hall laud the attraction of its flexibility.
Chapter 3 argues that this tripartite model has also, rather counter-intuitively, brought benefits for non-religious groups. Some of these benefits are direct: where a group acts as a collective unit – such as the British Humanist Association or the Humanist Society Scotland – they mirror organised religion in numerous ways. For instance, they share convictions on religious matters and seek inclusion in the establishment framework as they look to participate in the domestic social and political arenas. To this extent, they too support the UK constitutional structure in various ways: working with the authorities so as to foster the rule of law; engaging with the democratic process so as to respect parliamentary sovereignty; implementing checks and balances/separation of powers in organisational composition; and respecting human rights. Moreover, there are indirect benefits for beliefs in non-religious matters. These arise by virtue of the fact that the religious legal environment in Great Britain has been, and remains, conducive to the development of freedom of conscience in three key ways: protecting non-religious beliefs by association with religious beliefs (examples offered include conscientious objection and veganism); protecting non-religious beliefs by analogy with religious beliefs (via a case study on refusal of medical treatment); and implementing a presumption in favour of supporting and respecting beliefs for those claimants who cannot meet the requirements of Article 9 of the European Convention on Human Rights (in relation to toleration of folk beliefs, customs and lifestyle choices).
Chapters 4 to 7 form the remaining half of the book, analysing the implications of Great Britain's tripartite religious system for the four core constitutional foundations: the rule of law; parliamentary sovereignty; separation of powers; and human rights. Each chapter adopts the same methodology: analysis of the relevant constitutional principle; assessment of whether the tripartite system enhances or weakens the relevant principle; consideration of how far the teachings and perspective of certain religious groups influence their members’ perceptions of that principle; and discussion of what contribution, if any, faith communities in England, Scotland and Wales make to the operation of the principle.
Ultimately, and perhaps unsurprisingly, the authors find that the three-tiered religious dimension of Great Britain positively enhances each of the constitutional principles at hand. For example, by permitting religious exemptions from criminal laws proscribing bodily harm (such as religious male circumcision), the courts effectively support parliamentary sovereignty – recognising that Parliament has routinely declined to criminalise what are frequently open and wide practices. Elsewhere, faith groups contribute in a practical way to the promotion of human rights, one instance being same-sex marriage and the permission granted to some of those groups to conduct these marriages. The writers further contend that, in a useful way, different faith traditions provide ideas to their followers on how they might build a supportive stance towards the various constitutional principles. Anglican leaders have encouraged their members to participate in the democratic process at elections, upholding principles of parliamentary sovereignty; and many religions appear to support the notion of separation of power and checks and balances through ideas of justice, order, compassion and personal responsibility. Generally, it is suggested that faith makes a strong contribution to the functioning of the four identified constitutional principles.
Overall, Garcı́a and Hall have produced a meticulously researched, detailed and wide-ranging book which fills a major gap in knowledge about the religious dimension of the UK constitution. It will be of relevance to public lawyers who rarely interrogate that dimension, offering a critical and novel angle from which to conceive of constitutional development. However, it will also appeal to law and religion scholars interested in the hitherto under-researched role played by religion in that development. Alongside their doctrinal findings in Chapters 4 to 7, the authors include extracted interviews at the ends of those chapters. These interviews are with various religious and non-religious individuals from different sections of society, yielding particular insights into how the religious dimension of the constitution plays out in everyday life. Garcı́a and Hall are at pains to emphasise the nature of the ‘added value’ of such interviews: while they are not included to support their conclusions – they are not underpinned by robust sociological research methods – they provide a tantalising window into how the topics of the book exist beyond the ivory tower and impact the daily lives of all citizens in Great Britain.
