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A Brief Historical and Legal Description of Religious Liberty
In 1707, England, Scotland and Wales were united by James VI of Scotland and James I of England into the United Kingdom.1 Northern Ireland joined the United Kingdom in 1921, after a rebellion in Ireland divided the country.2 Many former colonies and dependencies retain their ties to the United Kingdom as part of the Commonwealth. In 1945, the United Kingdom became one of the founding members of the United Nations.
The United Kingdom is a constitutional monarchy with a democratically elected parliamentary government. Although the Monarch is the head of the State, she exercises little genuine power. The supreme legislative authority, Parliament, consists of two bodies, the House of Commons and the House of Lords. The House of Commons, whose members are elected for five-year terms, is the chief legislative body. The House of Lords, a non-elected body consisting of both hereditary and politically appointed lifetime peers, has limited power to influence the passing of legislation. The Prime Minister, who is chosen by the members of the majority party, is the head of the government and head of the Cabinet, which exercises executive power. The judiciary is independent, and acts as one of the checks and balances on abuse of legislative power.
Christianity is the majority religion of the United Kingdom. The Church of England is the official church. The Monarch is the head of the Church of England,3 and is required to be a Church member. The Settlement Act of 1700, Section 3, provides that no person who has ever been a Catholic may become Monarch. As the “Supreme Governor” of the Church, the Monarch appoints all bishops and Archbishops.4 Some senior Church officials automatically become members of the House of Lords. The ecclesiastical law of the Church forms part of the law of the United Kingdom.5 Although approval of Parliament or the Monarch is required for such major activities as purchase and sale of church land or proposed changes in Canonical tradition, the Church of England effectively functions as an independent body and receives no state funding.
Today, all religions enjoy the equal protection of the law, notwithstanding the official position of the Church of England. In the upheaval of the Reformation, that was not always so.
During the Middle Ages and Reformation period, the authority of the Church over temporal matters strained relationships between Rome and the Monarch. The Church of England was the established church in England before the sixteenth century, but the severing of links with Rome by Henry VIII in the 1500s established the Monarch as the head of the English Protestant church. At this time, the favoring of one denomination or religion guaranteed the oppression of others. Political power at this period in European history was inevitably linked to religion, and it was only as this connection became less and less important that religion ceased to be a pawn of government.
One of the first statutes to protect religious minorities in England was the Toleration Act in 1698, which granted Protestants limited exemptions from certain penalties. By the 18th century religion no longer constituted a reason for violence or confiscation of land, and neighbors did not fear to admit to the practicing of denominations other than that followed by members of the Church of England. The repeal of the Test and Corporation Acts in 1828 marked the end of the era in which the established church enjoyed the support of the state as the sole authority on religion. Further rights were conferred upon those of other religious persuasions in the following decades, until the concept of religious freedom for all members of society became acceptable.6
Tax relief and other advantages are available to all religious denominations by registering under the Places of Worship Act of 1855.7
Historically, religious tensions have been particularly strong in Northern Ireland. Southern Ireland, which is predominantly Catholic, and Northern Ireland, which is predominantly Protestant, were separated in 1920. When Ireland became a dominion and gained sovereignty as the Republic of Ireland in 1921, Northern Ireland chose to remain within the United Kingdom. Catholics in Northern Ireland, who form approximately one third of the population, have complained of discrimination since that time.
Constitutional Provisions and Legislation Relating to Religion
The United Kingdom does not have a written constitution. Constitutional tradition is generally traced to the drawing up of the Magna Carta in 1215, and has developed over the past 800 years through the common law, legal precedent, and legislation. Chapter One of the Magna Carta provided that “we . . . have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired . . . This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.”8
Although the exact parameters of the protection of religious liberty and other civil liberties in the Magna Carta were not entirely clear, the seventeenth century commentaries of Sir Edward Coke had a profound influence on the future development of civil protections in the United Kingdom. His interpretation of the Magna Carta was one of the deciding factors in the contents of the Petition of Right enacted by Charles I in 1628, and in the Declaration of Rights and Bill of Rights enacted by William and Mary in 1689.
The English legal system assumes that human rights are protected unless specifically limited by statute. Although Parliament’s power to enact legislation is, in theory, absolute, the normal checks and balances of a democracy are fully effective in the United Kingdom, and the judiciary has the same powers of statutory interpretation within the courtroom as that of any other democracy. As stated in Halsbury’s Laws, “[i]t is well understood that certain civil liberties are highly prized, and that in consequence Parliament is unlikely, except in emergencies, to pass legislation constituting a serious interference with them.”9 Freedom of religion therefore enjoys a considerable degree of protection arising from such traditional notions, despite the lack of formal protection.
The established status of the Anglican Church gives it a few privileges. According to Archbishop of Canterbury George Carey, and the synod, this status “is an opportunity to serve the nation.”10 Archbishop of York, John Habgood, adds that “the church somehow belongs to the English people.”11 The British government has close ties with the Church of England. It has the authority to “appoint bishops and other senior officials, Church rules must be approved by Parliament, the head of state must be a member, and some bishops are appointed to Parliament.”12 In the summer of 1994, the highest legislative body (the General Synod) defeated a motion to end government appointment of bishops and senior personnel and refused to examine the relationship between the church and the state.13
Although the Church of England is the established church in the United Kingdom, other religious bodies enjoy protection under the law. As Halsbury’s Laws state, “[a]ll religious bodies enjoy the same general recognition by law, strengthened in the single case of the Church of England by the circumstances of its connection with the state.”14 The law of the United Kingdom does not exclude other religions by virtue of the existence of an established church.
British citizens may worship whatever religion they choose. With the exception of The Settlement Act of 1700, the law does not discriminate against any one religion. This law states that “whosoever shall hereafter come into the Possession of this Crown shall join in communion with the Church of England as by law established.” Thus, this Act excludes from the throne a person who is or who marries a Roman Catholic. They are not prevented from becoming or marrying a Roman Catholic, but it does remove them from the line of succession. The government of England sees this law as necessary because the Roman Catholic Church “remains out of communion with the Church of England and does not accept the validity of Anglican orders.”15 Other laws discriminating against Catholics were repealed in 1926 by the Roman Catholic Relief Act.16
While the protection of religious freedom exists in a somewhat amorphous form at the domestic level, the United Kingdom’s international obligations provide more specific limitations on the restriction of religious freedom. In particular, the European Convention on Human Rights, to which the United Kingdom is a party, protects the right to freedom of religion in Article 9, which states:
(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public order, health or morals, or for the protection of the rights and freedom of others.
Although the Convention is not incorporated into domestic law in the United Kingdom, the courts will have regard to it and seek to ensure that their decisions are in conformity with it. A ruling by the European Court is, however, binding in international law. The Convention is also a valuable guide by which to interpret British law as it can be presumed that Parliament will not deliberately breach its international obligations.
In addition, there are three Acts that apply exclusively to Northern Ireland due to their special situation:
The Northern Ireland Constitution Act of 1973 prohibits public authorities from discriminating on the grounds of religious belief or political opinion. The Standing Committee on Human Rights was established to report to the government on the effectiveness of the law.
The Fair Employment (Northern Ireland) Act of 1976 prohibits discrimination in employment on the grounds of religious or political opinion and established the Fair Employment Agency to enforce and promote equal opportunity employment.
The Prevention of Incitement of Racial Hatred Act (Northern Ireland) of 1970 outlaws the use of written or spoken words which are likely to provoke hatred against a section of the public based upon religion, color, race or ethnic or national origin.17
DISCRIMINATION AGAINST CHRISTIANS. In the summer of 1995, a warden of a sheltered home for old age pensioners was instructed to “refrain from promoting her religious beliefs or her church” to the tenants.18
In January 1995, a headmaster of a school threatened to report a Christian couple to Social Services because he discovered that they physically disciplined their children. In school, one of their children said that he did not like being smacked by his father. No signs of physical abuse were discovered on the child and after another teacher intervened, the headmaster decided not to report the couple to Social Services.19
In December 1994, police stopped street preacher Roland Parsons from using an amplifier as he read from the Bible before Christmas. Authorities informed him that a local by-law in Gloucester prohibited him from using an amplifier. However, the Control of Pollution Act of 1993, permits this use of a loud speaker.20 This same preacher was attacked in March of 1995 as he walked home with a friend from an evangelistic meeting in Gloucester. He suffered injuries to his head, shoulders and eye. Although he has positively identified his assailants, no arrests have been made. Mr. Parsons believes that the attack was provoked by his open air preaching.21
In November 1994, Ian Sykes and Mark Young were arrested for street preaching in Bournemouth. Charged with causing a breach of the peace, authorities detained them for 48 hours. Because of public pressure, primarily letters, the Crown Prosecution Service discontinued proceedings before the Magistrates Court.22
In March 1993, Andrew Dutton was dismissed from his job after refusing to sign a contract of employment that would require him to work on Sundays. A year later, an Industrial Tribunal found his dismissal unfair. The judgment read “The applicant considers that as a Christian he must abide by the Word of God to keep the Sabbath, and that Sunday is a day set apart for him to worship God and to be with others doing the same.” This was a “reasonable and genuine objection” to the new contract. Mr. Dutton was subsequently reinstated at his post.23
A Christian social worker sought legal advice after she refused to place a child in a foster home where the two parents were practicing a lesbian lifestyle.24
In 1994, Rev. Alan Walker, a chaplain at the University of Westminister, wanted to ban proselytism on campus in an effort to protect students from cults and to “prevent unwanted proselytism.”25 Another chaplain, Reverend John Richardson, protested that the prohibition of “attempting to change the religious beliefs of others” would also prevent his own work as a chaplain. Mr. Walker suggested adding the words “unless invited” to make his intent more clear.26
DISCRIMINATION AGAINST THE UNIFICATION CHURCH. In Aberdeen, the Chief Constable refused to issue a “peddlar’s license” to a member of the Unification Church because of the applicant’s religious affiliation and the public complaints about the church. He unsuccessfully appealed the case.27
During the Christmas season, the Unification Church arranged to entertain the residents of a Church of Scotland home with songs and games, but the matron cancelled the event when she discovered “who they were.”28 In the same season, the Unification Church sponsored a fair and used the proceeds to send Christmas parcels to elderly ladies who lived in a Salvation Army home. Orders to return the gifts soon arrived from London headquarters.29
In 1980, the Daily Mail charged the Unification Church with brain-washing and breaking up families. The church then began to fight what would then be the most expensive libel action in British legal history. The jury found in favor of the Daily Mail and awarded over two million N.Z. dollars against the Unification Church. Along with the verdict, the jury recommended the investigation of the Unification Church as a political organization and not a religion. The Unification Church appealed, primarily because the judge misdirected the jury by questioning the truth of Unification theology. They lost the appeal. Six years later, the Press Council (responsible for handling libel charges against the press) censured the Daily Mail because of its continuous campaign against the Unification Church.30
After the Unification Church lost the previously mentioned libel case, public criticism seemed to increase. The Department of Health received pressure to state that the Unification Church damaged the physical and mental health of its visitors. The Home Office received strong encouragement to deny visas to members of the Unification Church from abroad attempting to visit Great Britain.31
In 1995, Sun Myung Moon (leader of the Unification church) tried to visit Britain. The Home Secretary issued an order excluding him as previously (1978) which was challenged in the High Court. The Court ruled against the Home Secretary and ordered him to reconsider his decision on the grounds that it had been reached without proper consideration. However, by the time the Court ruled, Mr. Moon’s World tour itinerary had taken him beyond Britain and he did not in fact make any attempt to enter the country.32
ENDNOTES
1 Edward H. Lawson, ed., Encyclopedia of Human Rights (New York: Taylor & Francis, Inc., 1991): 1594.2 ibid.
3 Canon 7 of the Canons of the Church of England (Canons Ecclesiastical promulgated by the Convocation of Canterbury and York in 1964 and 1969).
4 See 1 Co Inst 134 and the Appointment of Bishops Act 1533 s3.
5 Mackonochie v Lord Penzance (1881) 6 App Cas 424 at 446, HL.
6 Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices. (New York: United Nations, 1960): 5.
7 Bailey, Harris and Jones, Civil Liberties: Cases and Materials (1986): 343.
8 Magna Carta, c.1, confirmed by a later issue of the Charter in 1225. In medieval times, this was the equivalent of a statement of religious liberty, since the authority of the Pope was considered to be supreme and not subject to challenge.
9 Halsbury’s Laws, Vol. 8, para. 828.
10 Paul Marshall, “Official Anglican Status in UK Encourages Religious Discrimination Worldwide.” World Perspectives, News Network International (September 19, 1994): 1.
11 ibid.
12 ibid.
13 ibid.
14 Halsbury’s Laws, Vol 14, “Ecclesiastical Law,” para. 1386.
15 Letter from Peter Bean, First Secretary (Press and Public Affairs), British Embassy in Washington, D.C., (5 December 1995): 1.
16 ibid.
17 Lawson, 1595.
18 Rutherford News UK, case report, July 1995, Issue 10.
19 ibid.
20 Letter from Jane Hainsworth, UK Coordinator of The Rutherford Institute of the United Kingdom, February 1995.
21 Letter from Jane Hainsworth, April 1995.
22 Letters from Jane Hainsworth, February 1995 and April 1995.
23 ibid.
24 ibid.
25 “Chaplains Fall Out Over Campus Evangelism.” The Church of England Newspaper, 25 November 1994.
26 ibid.
27 “Religious Persecutions in Britain.” Harold Turner, The Laughter of Providence, No. 5, (Auckland, New Zealand: Stories Told at Somervell Presbyterian Church Services, 1994): 1.
28 ibid.
29 ibid.
30 ibid, 3-4.
31 ibid, 4.
32 Letter from David F. Negus, Esq., to The Rutherford Institute (March 26, 1996): 3.
Other Sources:
Letter from Siobhan Mannix, Press Office, Home Office, London (September 15, 1995).
Letter from Peter Bean, First Secretary, Press and Public Affairs, British Embassy (June 7, 1995).
Paul Diamond, Religious Liberty in the Workplace: United Kingdom (Unpublished Manuscript).
Keith Williams, Religious Liberty in Great Britain (May 31, 1991).
Renee Ladd, Religious Freedom in the United States, Great Britain, and Hungary (December 2, 1992).
John W. Dahmus, Henry VI of England: An Example of Royal Control of the Church in the Fifteenth Century. Journal of Church and State, vol. 23, no. 1 (Winter 1981).
Freedom of Religious Observance in the United Kingdom, European Law Review 7, (1982).
Source: Handbook on Religious Liberty Around the World, Pedro C. Moreno, Editor. Charlottesville, VA: The Rutherford Institute. This report is reprinted here by special arrangement with the Rutherford Institute and may not be reproduced or mirrored on another webside without written permission of the Rutherford Institute.
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