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A JUDICIAL PERSPECTIVEON THESACREDINSOCIETY 317

A JUDICIAL PERSPECTIVE ON TH E SACREDIN SOCIETYJ OHN L AWS

Lord Justice of Appeal(A paper presented at the Society's Durham Conference, April 2003)

The primary virtue of establishment is the Church's duty under law to min-ister to anyone at all who may turn to it, including the ungodliest.Establishment does not imply a religious State, that is a State whose Ian-requires subservience by the citizens to the State religion; ifitdid, it wouldbe barbarous (but contrast the Black Rubric in the Book of CommonPrayer / Establishment does not entail State control of the Church. Thelegal characteristics of establishment are as follows. (I) The law of the hurchof Englandispart of the law of theland.(2) Bishops and some otheroffice-holders are appointed by the Queen on ministerial advice. (3) 26diocesan bishops sit as legislators in the House o f Lords. (4) The Q ueen asSupreme Governor acts as monarch for the C hurch as she acts as monarchfor the State. The Church of England is not a congregational church: itsforms ofworship areprescribed bylaw,and are not at the liberty of the com-munity worshipping in any particular church. The bishops' resolution whichauthorised the use of the 1928 revision of the Book of Common Prayer inface of thewillof Parliament (which was the lawful authority in the matter)was a lamentable disobedience to the law which it was their duty to uphold.Such a legaltransgressionm ight possibly now adays be subject to correctionby the High Courton judicial review, though that would require departurefrom earlier high authority. However tha t may be, it has to be recognisedthat thereisno room, inthepractice of an established Church, for the notionthat conscience might justify disobedience to the law. The conscience of thebeliever is worth no m ore than the conscience ofan unbeliever. The estab-lished hurch possesses two immeasurable virtues: first, that religion is notyrant: belief is not compulsory; second that the Church's ministration isavailable to everyone. Their unified effect is a great force for good.I agreed far too blithely to the suggestion that I should if invited addressthis conference, for I have no respectable q ualifications for do ing so . Still,my very ignorance of the nature of the establishment of the Church ofEngland has led me to enquire, without any preconceptions of any kind,what this conception of the Church's establishment means; and it may bethere is some very modest value in this kind of beginning with a tabularasa. I have found the enquiry unexpectedly elusive. My starting-pointwas to try and discover what are the legal conditions of this establishment:what are the propositions of law in which it consists. I thought this wassafe enough territory, for at least it was law and nothing else; though cer-tainly I had no previous expertise in this branch of the law. But I soon dis-covered that the austerity of legal propositions was by no means, in theeyes of many thinkers at least, the whole or even the greater part of what


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318 ECCLESIASTICAL LAW JOURNAL

is me ant by the establishment of the Church of England. It is said to con-sist in something much more fundamental. This has been put many ways.A coarse and figurative summary would be that it represents a marriageof the divine and the secular, so that the State is in some way underpinnedby the Christian faith and is an expression of it.There is a good deal about this idea in a book (which my wife, who is atheologian, suggested I read) by Paul Avis, General Secretary of theCouncil for Christian Unity of the Church of England, called Church,State and Establishment.' I have to say that I regar d an au th or wh o usesadjectives like 'missiological' and 'salvific' as an enemy of the English lan-guage, a conditio n w hich does no t exactly predispose me in favour of any-thing else he has to say. Early in the book2 Avis equates establishment,perhaps uncontroversially, with 'the recognition on the part of the Stateof the contribution of Christian ministry to the health of civil society'.Later, Avis offers an excellent conspectus of those great figures from thesixteenth to the nineteenth century who have written of this relationbetween Church and State: Hooker, Burke, Coleridge, Gladstone,Thomas Arnold, and Mandell Creighton (who I think was educated atDurham School) .The more I looked into the whole matter of the Church of England'sestablishment, the more interested I became in this underlying notion ofthe relation between Church and State: rather at the expense of my soberresearches into the dry legalities of establishment. The reason is that as alawyer who regards our legal constitutional arrangements in this country,which are at root a function of the common law, as a powerful force forgood, I have a profound sense of unease at the notion that these veryarrangements are to be treated in some way as a function or derivative ofreligious truth. Avis suggests1 that Tn the British constitution, we maysay, sovereignty is vested in the Queen in Parliament under God'. I amafraid I have a very great deal of difficulty in seeing what God has to dowith it, unless He is a beneficent but unseen moving finger; but in that caseHe is a cause of our constitutional arrangements, not a reason for adopt-ing them or developing them or acting in accordance with them. Theintegrity and rationale of our constitution are not intelligible in terms ofthe causes of its existence. Rather its integrity and rationale are inter-twined with, indeed consist in, the reasons why we accept and endorse it;and indeed, modify it over time. There is a chasm between cause and reason.The basis of my concern does not in any sense depend on an anti-religiousor anti-Christian position. Far from it: it depends rather on the need tosafeguard what I regard as the primary virtue of the Church's establish-ment: its universality; that is, its legal duty to minister to anyone who mayturn to it: to unbelievers, doubters, and backsliders not a splinter less thanthe most faithful among the faithful; to all the Queen's subjects including,1SPCK.2001.2 p 16. P Avis Church.State am iEstablishment SPCK. 2001). Preface, p ix.


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A JUDICIAL PERSPECTIVE ON THE SACRED IN SOCIETY 319

therefore, the ungodliest. In a nation State of many faiths and none, whereroots are sometimes severed, ancient certainties often fractured, wheremany, especially the young, cast about which way to turn because thereare too many competing signposts, this compulsory openness of theChurch of England is more, not less, important than in other times whichmay have been more settled and more devout. The marriage of Churchand State, 'the Queen in Parliament under God', may in those earliertimes have been the engine of establishment. If so, now in this later andmore fluid age we need a new crankshaft.But now I will turn to the letter of the law. I hope I will be forgiven if whatfollows is a short and superficial account. I am not capable of better. Ihope I may without impertinence be allowed to pay tribute to ProfessorDavid McClean's scholarly paper,4 which introduced me to section 8 ofthe Act of Supremacy 1558. First, as I see it, there are two preliminarypoints to notice, which are of some significance. The first is as obvious asit is important. It is that establishment does not imply a religious State:that is, a State whose general law compels the citizens' subservience to theforms and tenets of the State religion. A constitution of that kind is pecu-liarly barbarous, for it pierces freedom of thoughtnot just freedom ofexpression, freedom of thoughtto the very quick; and in doing so pro-vides a spurious justification for tyranny if anything more hypnotic thanthe false and tawdry claims of communist rulers to represent the people.In its first 2,000 years Christianity has sometimes been guilty of this. Butit is very obviously no part of the conception of the establishment of theChurch of England, which, thank God, does not require under threat oflegal sanction that England's people should believe or practise anything.However, there is as it happens one provision remaining in the law ofEngland, in its ecclesiastical law, which on the face of it forbids freethought. This is the Black Rubric, which as everyone here will know is oneof the instructions appended to the Order for Holy Communion in theBook of Common Prayer. It is in these terms:

Whereas it is ordained in this office for the Administration of theLord's Supper, that the Communicants should receive the same kneel-ing . . . yet, lest the same kneeling should by any pers ons, either out ofignorance and infirmity, or out of malice and obstinacy, be miscon-strued and depraved: It is here declared, that thereby no Adoration isintended, or ought to be done, either unto the Sacramental Bread orWine there bodily received, or unto any Corporal Presence of Christ'snatural Flesh and Blood . . . .The Rubric was composed by Archbishop Cranmer for his second PrayerBook of 1552. It requires the communicant to kneel; but forbids him toworship the bread and wine as if it were Christ's flesh and blood. It is4 D McClean. 'The Changing Legal Framework of Establishment' is reproduced at page292 of this volume.


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inten ded to regulate what ha ppens in his head w hile he is on his knees. Herlate Majesty Queen Elizabeth I had the Rubric removed; as Sir FrancisBacon tells us, 'She wo uld not m ake window s into m en's souls'. But it wasrestored in the 1662 Prayer Book, and has been the law of the land, direc-tory I hope rather than mandatory, ever since.In this context of freedom of belief, consider the text of Article 9 of theEuropean Convention on Human Rights, which of course is incorporatedinto our domestic law by force of the Human Rights Act 1998:

1. Everyone has the right to freedom of thought, conscience and reli-gion; this right includes freedom to change his religion or belief andfreedom, either alone or in com mu nity with others and in public or pri-vate, to manifest his religion or belief, in worship, teaching, practiceand observance.2.Freedom to manifest one's religion or beliefs shall be subject only tosuch limitations as are prescribed by law and are necessary in a demo-cratic society in the interests of public safety, for the protection of pub-lic order, health or morals, or for the protection of the rights and free-doms of others.Article 9 is in the two-paragraph form adopted in each of Articles 8 to 11,dealing with what are sometimes called the political rights. The first para-graph declares the right; the second paragraph articulates limitations orqualifications to which the righ t is subject. Wh at is interesting abo ut the textof Article 9 is that whereas the first paragraph includes within the rightdeclared freedom of thought, the limitations imposed by the second para-graph relate only to freedom to manifest one's religion orbelief. Nothingcan justify any limitation up on the right to think, or believe, anything at all.So the established Church is not a function of a religious State. My sec-ond preliminary point is linked to the first, but is more pedestrian. It isthat the established Ch urch d oes not function like a nationalised indu stry:that is to say, the government is not its ultimate boss. The objection to areligious State consists in the vice that the Church, or rather the church-men, would control the State. The objection to this further model, themetaphor of the Church as a nationalised industry, consists in the vicethat the State, or rather the statesmen, would control the Church. HerbertHensley Henson, appointed Bishop of Durham in 1920, feared somethinglike this when he wrote in 1946:Far from ministering to "spiritual efficiency", the Establishment nowimmerses the Ch urch in a bon dag e to secular forces which is destructiveof her true influence, and quite plainly inconsistent with her essentialcharacter as a spiritual society, a true and living branch of the CatholicChurch which is the body of Christ.5But A vis is surely right6, when by reference to 'synodical government, con-5 Bishoprick Papers (OUP 1946), p 90.* Church, State and Establishment, p 34.


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A JUD ICIAL PERSPECTIVE ON TH E SAC RED IN SOCIETY 321

t ro l o f [ t he Church ' s ] doc t r i ne , worsh ip and d i sc ip l i ne , and comple t ere spons ib i l i t y fo r nomina t ing ( i f no t ac tua l l y appoin t i ng) i t s b i shops ' , hed i smi sses t hese fea r s a s no th ing bu t a bogey nowadays .I re turn, then, to the def ining lega l charac ter i s t i cs of the es tabl i shedChurch. They inc lude a t l eas t the fol lowing: (1) The law of the Church ofEn glan d i s pa r t of the law of the land , and the ecc les ias tica l co ur t s a ream on g the Qu een ' s cour t s . (2 ) B i shops and ce r t a in o the r o f f ice -ho lde rs a reappoin t ed by t he Queen , ac t i ng cons t i t u t i ona l l y on t he advi ce of t he Pr imeMinis te r . (3) 26 diocesan bi shops s i t in the House of Lords , and thus a repa r t o f t he leg i s la tu re . (4 ) Th e Queen a s Su pre m e Go ve rn or ac t s a smonarch for t he Church a s she ac t s a s monarch for t he S t a t e . I a cknowl -edge , indeed I think we should f ind much sa t i s fac t ion in the fac t , tha tunde r t he dry l e t t e r s o f t he l aw the re a re many power fu l t r ad i t i ons t ouch-ing the re la t ion of Sovere ign and Church. Close ly a l l i ed to these lega lcharac ter i s t i cs tho ug h not , I th in k, s tr ic t ly form ing p ar t of the m , i s w ha tAvi s desc r ibes a s ' a c lose and sympa the t i c re l a t i onsh ip t o na t i ona l cu l t u reand , more l oca l l y , t o reg iona l express ions of t ha t cu l t u re . [The Church]has a chapla incy role to na t iona l ins t i tut ions , such as schools and col leges ,munic ipa l corpora t i ons , t he a rmed se rv i ces , hosp i t a l s and pena l i ns t i t u -t i ons ' .7I wi l l say a l i t t l e more about the law of the Church as the law of the land.The law prescr ibes the forms of worship. Every new pr ies t upon his ordi -na t i on u nd e r t ak es and d ec l a re s i n j us t t he sam e wor ds a s d id t he newA r c h b i s h o p o f C a n t e r b u r y u p o n h is e n t h r o n e m e n t :

I wi l l use only the forms of service which are author i sed or a l lowed byC a n o n .

Fur the rmore , a s La tham CJ sa id i n t he High Cour t o f Aus t ra l i a i n 1948:T he C hu r c h o f E ng l a nd is no t a c ong r e ga t i ona l c hu r c h . T he m e m b e r sof t he con greg a t ion w orsh ipp in g in a pa r t i cu l a r chu rch bu i ld ing a re no ta t l ibe r ty t o ado pt an y doc t r i ne or r i t ua l which com m en ds i t se lf t o t h emand s t i l l t o desc r ibe t hemse lves a s members o f t he Church of England . 8

Aga ins t th i s bac kg rou nd we m ay recal l t he fam ous , some have t ho ug ht i tinfamous , re jec t ion by Par l iament in 1928 of the f i rs t a t tempt , in the shapeof the Deposi ted Book, to revise the Book of Common Prayer. A s is wellkn ow n, Hens l ey H ens on beca me a fo rm idable ad vo ca t e o f d i se s t ab l i sh-ment in consequence of thi s dec is ion by Par l iament . I t seems to me tha thi s pos i t ion had a good dea l more integr i ty than tha t expressed by thi s fol -l owing re so lu t i on which was adopted by t he b i shops :Th a t du r ing t he pre sen t emergen cy and un t i l fu r the r o rd e r t he b i sho ps

7 Church, State and Establishment, p 15.8 Wylde> Attorney-General for New South Wales, ex rel Ashelfonl (1948) 78 CLR 224 at256^


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322 ECCLESIASTICAL LAW JOURN AL

... cannot regard as inconsistent with loyalty to the principles of theChurch of England the use of such additions or deviations as fall with-in the limits of these proposals ... That accordingly the bishops, in theexercise of their legal or adm inistra tive discretion, will be guided by theproposals set forth in the Book of 1928 ...As I understand it, it was not until the Church of England (Worship andDoctrine) Measure of 1974 was passed that the General Synod wasempowered to make provision by Canon as to the forms of service to beauthorised for use in the Church. I am unaware of any legal justificationfor the bishops' resolution which purportedly authorised the use of the1928 Book in face of the will of Parliament, which was then the lawfularbiter of such matte rs. The b ishops spok e of their 'legal or administrativediscretion'. Were they not sure which? In truth, they enjoyed neither. Suchdiscretions as the bishops possessed did not as I understand it extend to adefiance of a clear position taken by the legislature. No ius liturgicumenti-tled them to go so far. As Rupert Bursell has written:

... the scope of any ius liturgicum was still restricted by those Acts ofUniformity and a bishop could not legally dispense with the require-ments of the Acts or permit any variations in relation to the servicesprescribed by them.9

And Read v Bishop of Lincoln (1899) 14 PD 148, in the Court of Arches,is cited. There is also Briden and Ha nso n, M oore's Introduction to EnglishCanon Law, where it is stated:... there can be no legal validity in the purported exercise of an allegedepiscopal discretion to allow the wholesale use of the deposited Prayer

Book of 1928 ... l0If this approach is right, the position taken by the bishops in relation tothe 1928 Book would appear to have been a lamentable disobedience tothe law which, one might be forgiven for supposing, they should as lead-ers of the Church particularly uphold. Further than this: such a disregardof the law surely tends to undermine the establishment of the Church,which depends upon conformity with the law.There is an interesting question, interesting in theory at least, whether andin what forum this resolution of the bishops might have been subjected toa legal challenge. An issue relating to episcopal authority was the subjectof a challenge before the Court of Arches in Re Lapford (Devon) ParishChurch[1955] P 205, which concern ed a prop ose d tabern acle for the reser-vation of the sacram ent. At first instance Chancellor W igglesworth stated:' ' "Consecration, Ius Liturgicum and the Canons', chapter 7 ofN Doe. M Hill and R Ombres(eds), English Canon Law: Essays in Honour of Bishop Eric Kemp (University of Wales Press.1998). p 76.1 1T Briden and B Hanson. Moore's Introduction to English Canon Law (3rd edn) (Mowbray.1992). p 58. See also Re St Peter and St Paul, Leckhampton [1968] P 495 at 498A -B.Gloucester Cons Ct.


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324 ECCLESIASTICAL LAW JOU RN AL

and mandamus, but not to certiorari. R v Chancellor of St Edmundsburyand Ipswich Diocese, ex parte White [1948] 1 K B 195 (which I know ofbecause it appears in the King's Bench report immediately before theWednesbury case) is Court of Appeal authority for the proposition thatcertiorariwill not lie to the ecclesiastical co urt s. This curtailed view of theHigh Court's jurisdiction over ecclesiastical courts historically bore quitea close parallel to the position regarding University Visitors, though inthat case there has been judicial activity much more recently than the deci-sion inex parte White:seeRvHull University Visitor, exparte Page[1993]AC 682, HL. As Hill demonstrates, the position relating to ecclesiasticalcourts and judicial review has been criticised. In R v Chancellor of theChichester Consistory Court, ex parte News Group[1992] CO D 48, M annLJ sitting with Hidden J in the Divisional Court acknowledged, as nodoubt he was bound to do, the force of the Court of Appeal's decision inex parte White, but commented:The Court of Appeal might well now, if the occasion arises, decide thatcertiorari can go. If they do so decide, they may express the view thatthe cour ts shou ld be cautio us in exercising the review jurisdictio n inregard to qu estions of ecclesiastical law because they are best left to theecclesiastical courts with their own hierarchy of appeal.15

Hill concludes:The sooner the Court of Appeal looks again at ex parte Whitethe bet-ter. There would now appear to be sufficient accreted justifications forjudicial review to lie in respect of an ecclesiastical court acting in breachof natu ral justice ...l6

If there were a modern parallel to the bishops' resolution relating to theBook of 1928, is it conceivable that the High Court might declare the res-olution to be unlawful? Perhaps not.The interest of all this, including the technicalities, brings me back to therelation between Church and State. It lies in the vital truth that the estab-lished Church, its acts and its forms of worship, are subject to the law ofthe land as it is administered in the Queen's courts, which of courseinclude the ecclesiastical co urts . This is the Chu rch 's virtue: it means thatthe Christian faith is mediated or offered to the people on a universal andcompulsory basis which transcends the doctrinal, liturgical or otherpredilections of individual priests or prelates. Their voices are put in theirprop er pla ce, which is un de r the law. In tha t place they will far better servethe spiritual needs of the unruly ranks of Christian, non-Christian, thosewh o do no t kno w one way or the other, and tho se who are not sure or whodo not care. The parish priest is, as I understand it, and subject to impor-tant exceptions, obliged by law to baptise, to marry and to bury accord-lf Transcript. 7B.16 "Judicial Review of Ecclesiastical Courts': chapter 10of E nglish Canon Law, cited in note9 above, p 114.


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ing to the rites of the Chr istian C hur ch those of his parishion ers, or in thecase of burial their relatives, who seek such religious service or sacrament.He is not to enquire into their faith. He may, perhaps particularly wherethe parishioner is to be married, give counsel. But he cannot refuse. Ifhe does so, he betrays the virtue as well as the law of the establishedChurch.In this there is no room for the notion that conscience might justifydisobedience to the law. It is simply the priest's duty to administerthe services of baptism, marriage and burial to the people. There are,as I have foreshadowed, exceptions: exceptions as regards the marriageof divorced persons, and as regards the burial of persons not baptised.The priest has no other legitimate space for conscientious objection.If he is driven by such an objection, then his place is in a sect, or a con-gregational church where no general law prescribes the duties of theministers.Here I have to state and to stand by what may seem to be a hard truth,that the conscience of the believer is worth no more, and of course no less,than the conscience of the unbeliever. If the priest or bishop seeks to jus-tify disobedience to the law of the established Church by reference to hisown religious convictions, he is in no different case from the man whoseeks to justify disobedience to the general law by reference to his ownmoral convictions. A claim to legal disobedience carries no kitemark ofrespectability because its grounds are religious. The opposite view, if itwere generalised, would justify the dictatorship of the religious State. It isa deep virtue of the established Church that it puts the breathless claimsof religious fervour below the law. In doing so it satisfies two unmeasur-able values. I have already mentioned both of them. First, the establishedChurch stakes out religion as no tyrantno State tyrant or any other kindof tyrant. Belief is not compulsory. The Church respects the general lawof the land under which, not least given the Human Rights Act 1998 butI would say equally by force of the common law, any attempt to compelreligion would be utterly condemned. Secondly however, and by contrast,the Church's ministration is by law available to everyone, believer or no.These two values are interconnected.Their unified effect is a great force for good. But as it seems to me thisrequires a hard discipline, hardest perhaps for the most faithful. It is atwofold discipline. It requires conformity with usages which the priestmay personally disappro ve, and it requires the extension of sacram ent andsuccour to people who are frankly o utside the Chu rch . It seems to me th atthis is reflected in the striking words of the present Dean of Westminster:'Incumbents are still appointed to the cure of souls, not just to the super-vision of a congregation, even if few seem able or willing to tell the differ-ence.'In the end, I do not think that those who are sympathetic to the Churchof England as it is established, or who are committed members of


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it, should feel their adherence buffeted by all the pluralities of today.Others have described the support for the Church of England's establish-ment that is offered by leading members of other faiths and other denom-inations. There is a danger that the Church's virtues of tolerance andmoderation become degraded, degraded into the vice of being apologeticfor seeming to believe in anything very difficult or demanding, or evenfrightened of doing so. That is a terrible vice, akin to the vice of politicalcorrectness, which is a kindergarten kind of fascism. Of course the Churchwill preach the Gospel: I hope without inhibition and with all the vigourit possesses. It does so against the backcloth of the two immeasurable val-ues I have described.It is a great virtue of advocacy and argument not to put your case toohigh. F E Smith, one of my profession's great heroes, created LordBirkenhead when he became Lord Chancellor in 1919, whose son's hagio-graphic biography of him led mefor the little that it is worthinto thelaw, for all his greatness committed this terrible mistake. He put his casetoo high in the House of Commons when he described the WelshDisestablishment Bill as 'a Bill which has shocked the conscience of everyChristian community in Europe' . Though it has nothing to do with theargument, I cannot resist reminding you of some of the stanzas in G KChesterton's wonderful poetic response, Antichrist, or the Reunion ofChristendom: an Ode:

Russian peasants round their popeHuddled, Smith,Hear about it all, I hope,Don't they, Smith?In the mountain hamlets clothingPeaks beyond Caucasian pales,Where Establishment means nothingAnd they never heard of Wales,Do they read it all in HansardWith a crib to read it with'Welsh Tithes: Dr Clifford Answered.'Really, Smith?

In the lands where Christians were,F E Smith,In the little lands laid bare,Smith, O SmithWhere the Turkish bands are busy,And the Tory name is blessedSince they hailed the Cross of DizzyOn the banners from the WestMen don't think it half so hard ifIslam burns their kin and kith,Since a curate lives in CardiffSaved by Smith.


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It would greatly, I must own,Soothe me, SmithIf you left this theme alone,Holy SmithFor your legal cause or civilYou fight well and get your fee;For your God or dream or devilYou will answer, not to me.Talk about the pews and steeplesAnd the Cash that goes therewithBut the souls of Christian peoples...Chuck it, Smith

It is a virtue of the English to be moderate and determined at the sametime. The established Church has in the past exemplified this virtue. Thereis every reason why it should do so in the future.

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