We continue to live in the remains – as opposed to the ruins – of a confessional state. Ruins may be picturesque but have no life. Remains, however, do have being. The fact that the remains exist formally only in England does not mean they have no impact elsewhere in the UK. On the contrary, they continue to have life at the very apex of the constitution.
This is because of the religious tests – negative and positive – still imposed on the UK's sovereign. The negative tests are designed to exclude Roman Catholics: no one may succeed to the throne who is, or who is married to, a Roman Catholic. The positive test is that the successor must be ‘in communion with’ the Church of England. With the exception of the Danish monarch, no other involuntary job holder has to surrender control over their own beliefs. Moreover, after at accession swearing to uphold the Church of Scotland, the new sovereign must at coronation swear to support the Church of England. Further, as ‘Supreme Governor’, the sovereign continues by law to appoint all the archbishops and bishops and many other senior clergy, as well as to authorise the sittings of the General Synod whose Measures have the status of primary legislation. Because of the patronage which has over time accrued to the Lord Chancellor and the Prime Minister, ministers appoint clergy to over 650 benefices.
Does any of this really matter? Everyone knows the sovereign has no actual executive power; that the UK is a republic with an hereditary rather than elected or appointed head of state; that the Church of England is to be regarded effectively (if not in law) as an autonomous voluntary (except for the sovereign) society; and that other Christian denominations and non-Christians too are, apart from some occasional reservations about episcopal membership of the House of Lords, not too fussed about the present position. Never mind, too, that the Church of England with other Christian denominations continues to struggle not very happily with issues of gender and human sexuality thought settled elsewhere.
In any case, the present government is itself taking steps to tidy things up: the Prime Minister has withdrawn from even the appearance of personal responsibility for advising the sovereign on ecclesiastical appointments and the civil servants involved have now moved out of Downing Street; discussions were due to be initiated at the November 2009 Commonwealth Heads of Government Meeting (CHOGM) with the 15 ‘realms’ (where the UK sovereign is also the head of state) to end male-only primogeniture but also the tests hostile to Roman Catholics. It has also been made clear that, should it ever come about, there would by definition be no place for bishops in a wholly-elected second chamber, though the message has been less clear about religious representation in something less than a wholly elected chamber. If a post-CHOGM negotiation fails, it does not matter because ending gender biased primogeniture is hardly an election issue and we should be able fudge our way through should a future heir inconveniently want to convert to Roman Catholicism. In that case, it might be determined that there should be no obstacle to their human rights and the archaic laws can be held to be repealed by inference. After all, that is what was done when the Prince of Wales wanted to contract the civil marriage formerly advised as impossible for members of the royal family.Footnote 1 When the Duchess of Kent converted to Roman Catholicism in 1994, it was observed that it would not affect her husband's rights of succession because her conversion took place following marriage. So that's all alright then.
Except that it's not. The reason is that the gap between appearance and reality has become too stretched even for Britain's lazy pragmatism. Whilst the host community may be culturally Christian, two-thirds say they have no intention of engaging with church, about half are prepared actually to say that they no longer believe and less than 7 per cent are in any way observant. (These facts are amongst those lying behind some of the so far unallayed resentments about the present position of faith schools.) Further, there are now substantial minorities who are full members of the civic community professing non-Christian religions. The greater diversity of faith is certainly important but secondary to the larger degree of religious indifference. Whilst the causes and exact character of secularisation may be disputed, its extent is incontestable fact even if it is mostly tolerant of religion and by no means averse to the maintenance of the public shrines of our ancestors.
Not convinced? Then let us try some thought experiments:
A new sovereign accedes, and a coronation is planned. There does not have to be one in law for a coronation does not make a king. The first question, therefore, is whether there should be one at all. Traditionally, the coronation has symbolised the subordination of a monarch to a higher law and the visitation of God's grace. (No one now maintains that the sovereign is chosen by God?) But which God and before which people? Should the event be entirely Christian and, if so, will that do more to bind the nation or emphasise difference? How far could the Archbishop maintain control of the event when his instinct would no doubt be to associate other religions in some innovative way with the – almost certainly non-eucharistic – ceremony? On the last occasion, a small, virtually undetectable, role was found for the Moderator of the General Assembly of the Church of Scotland (and a role so tiny that it created intense controversy within the Kirk at the time) but for no one else. Is the new sovereign expected to swear an oath not only ‘to maintain the laws of God, the true profession of the Gospel, and the Protestant reformed religion’ but also to preserve the established religion in England and the ‘rights and privileges’ of Anglican bishops and clergy? But there is more: the Accession Declaration Act 1910 requires sovereigns also to swear that they are ‘faithful Protestants’ and that they will ‘uphold and maintain’ the Protestant succession to the throne.
The Prime Minister makes progress in CHOGM and the realms agree that male primogeniture and the Roman Catholic prohibitions should go. Where does that leave the ‘in communion’ test and the position of Supreme Governor? In practice, it would seem difficult to remove one set of tests without removing all of them. If sovereigns are to be free to be Roman Catholics, it is difficult to see why they should not be permitted to adopt any other religious affiliation (or none) which would equally make it impossible for them to be ‘in communion’ with the Church of England. At least one former bishop has argued that it would be possible for a Roman Catholic to be Supreme Governor, but most people (let alone bishops) would probably find that to stretch credibility (and ecumenism?) a bit too far.
In Scotland the General Assembly decides (as seems likely) to abandon its self-imposed obligation to maintain parochial coverage throughout the whole of Scotland. This will be regularised through its ability autonomously to revise Article III of the Articles Declaratory appended to the Church of Scotland Act 1921. However, this raises a question about the continuing need and viability of the sovereign's oath – required by the Act of Union – to uphold the Scottish church. Should it continue? Although it could be argued that the oath was not explicitly predicated on the continuance of the Kirk's commitment to a universal parish ministry, that was in 1706 the Kirk's unique feature in comparison with other religious groups. It follows that its abandonment now would put the Kirk in no different position from other groups who do not enjoy the ‘protection’ extended by the oath. Apart from inertia, it would in such circumstances be difficult to identify any substantive reason to justify the oath's continuance.
Traditionally the question of church establishment has been treated as indivisible. You either have establishment or you do not. But that is merely the rhetoric of ancient animosities. The one side tried to maintain defensively that it was all too difficult and too dangerous to do anything, and the other that it was so awful that it all had to go. We might at least now agree that neither of those propositions is true. That said, however, these antagonisms continue to surface if in less shrill forms and with changed participants: nowadays the religious parties are mostly together on one side rather than opposed, and various forms of unbelief ranged on the other.
Moreover, the issues have now to be seen not in the context of an internal struggle principally between brands of Protestantism, but in the wider context of the politics of religion in the modern pluralistic state. The present government has sought to give priority to religion as a factor in community relations. It has given some money and some political status to non-traditional religious groups. It has otherwise shared the majoritarian indifference to preserving the Protestant settlement achieved at the turn of the 17th century and the beginning of the next. Its constitutional policies, if they achieve their stated limited objects, will trigger larger questions about the constitutional architecture linking the sovereign with the Church of England but that does not mean that destruction must follow.
The argument in Church and State in 21st Century Britain: The Future of Church Establishment (RM Morris (ed) (2009) Palgrave) is that constitutional change does not have to be all or nothing. On the contrary, it may be achieved in ways that respect the Christian tradition and remove only the compulsory relationship rather than the option for voluntary links between the Crown and the Church of England. Such links could continue without being confessional: the two oldest British institutions accommodating each other, the Church fully autonomous and the Crown morphing institutionally into the friendly patron rather than the compulsory member and controller. How exactly that should be achieved would require trilateral negotiation between the Church, the Crown and the government, the latter with an eye on the implications for the Commonwealth and the realms. Church and State in 21st Century Britain offers some ideas on the directions that change could take but it would be for the parties themselves to decide the outcome.
It can be reassuring that medieval overhangs of ritual and immemorial practice retain a presence in our national life. Where there is only discontinuity in fact, it can be attractive to maintain that there is only benign evolution. And it is true that, politically, Britain has enjoyed a relative absence of discontinuity – no successful invasion since 1066, no state failure (ignoring the little mid-seventeenth century difficulties) and no revolution (ignoring the massaged coup d'état of 1688).
Yet the current legal forms of church establishment derive from those seventeenth century experiences. They have worn long if not, now, well. The politics of religion – of which establishment is but one phenomenon – requires being addressed afresh in the multi-ethnic, pluralised, unspoken republic Britain has become. In the end, the state has to reconsider its relations not only with the old establishments but with the new phenomena of non-Christian devotion and indifferent secularism. We all have to rub along together but the higher state architecture needs reinterpreting. When a Cabinet minister (Hazel Blears) said that Britain was ‘a secular democracy’, she was, formally, wrong: the UK is a Protestant monarchy. The political problem is to find ways of recognising what we have become without causing hurtful, unnecessary and irreparable damage on the way. The debate is no longer about religious freedom (which we do have) but religious equality (which we do not). The question is how best to give religious equality a satisfactory modern form at all levels of our society.
