On 9 May, Lord Mackay delivered the Richard O’Sullivan Memorial Lecture, on behalf of Theos and Law and Justice: the Christian Law Review, which is this year celebrating its 50th anniversary. The text of the lecture follows. A recording can be heard here, and the following Q&A here.
Who was Richard O’Sullivan in whose honour this Lecture was founded?
He was a barrister who was born in Cork, and practised for many years at the Bar, being a member of Middle Temple of which he was Treasurer in 1960-1. He took silk in 1934, and became Recorder of Derby.
He was interested in the Christian origins of the common law and wrote widely on this subject, and also founded the Thomas More Society to bring together Catholic lawyers and others. Papers delivered to the Society were published, to which he contributed. Today he might well have become an academic.
He set himself to expound the theological origins of English law, and brought out its theological roots in the work of men who were both priests and lawyers, like Bracton. In particular, he put forward the concept of the 'free and lawful man' - 'liber et legalis homo'; and also drew on the Christian sense of the equality of human nature, and argued that this Christian sense of human equality has passed into the texture of English thought and language. He felt strongly that the common law started with the presumption that men (women now too of course) were reasonable beings, endowed with reason by the law of nature, and so this presumption should be carried forward to the law today.
When this journal, Law and Justice, was founded in 1963 he had recently died and was well known in Catholic legal circles, which is why the Trust decided to sponsor a lecture in his memory. They are actually thinking of publishing a selection of his papers.
Incidentally, the journal began with a Roman Catholic emphasis, but long ago broadened out to look at the whole area of Christian engagement with the law.
Some previous lecturers have been Lords Hailsham, Scarman and Nolan. A high standard has been set. It will be for you to judge whether it has been attained today.
When John Duddington wrote to invite me to give this lecture, I did not immediately leap to accept. I felt the title contained a challenge to prophesy. I have never felt very secure in attempting to foretell the future. The more I thought about it the more I realised that the challenge was more to analyse the present in the light of the past, and the developments in the relation between Church and State in the two nations where I had some acquaintance with these matters.
I should make it clear at the outset that I understand the word “establishment” in the title set for me as meaning the present relationship between the Church of England and the State.
Though there is much in the Old Testament that has a bearing on this subject, I shall begin with the setting up of the Christian Church by our Lord himself in what has often been described as the Great Commission, when he said to his disciples when He was about to go from them:
All power is given unto me in heaven and in earth. Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost; Teaching them to observe all things whatsoever I have commanded you: and , lo, I am with you alway, even unto the end of the world. (Matthew 28: 18b-20)
Some simple points emerge from this charter of the Church. First, Jesus spoke of the nations as then existing to be the subject of the disciples’ efforts. Second, He asked his disciples to teach the nations his commandments and to baptise. There is no reference to the disciples ruling the nations. Third, as the holder of all power He is to be with his disciples until the end of the world, and that implies that as they taught the nations they did so with His authority.
It is also worthy of note that when Pilate asked Jesus whether He was King of the Jews, Jesus explained that His kingdom was not of this world (John 18:36). It may be worth pointing out that in Christian history the question has regularly been asked, what this statement of Jesus has to say about the relationship of those who recognise Jesus’ lordship to civil governments and the means of power they use. As the distinguished New Testament commentator Herman Ridderbos points out, “the passage does not in fact discuss this question.” Far from portraying “a confrontation of Jesus’ kingdom with the state,” Jesus’ words rather indicate “that his kingdom is distinct from ‘the kingdom of this world’ at a point of immediate interest: it is not based on force”. This rejection of defence by violence during his arrest does not, states Ridderbos, constrain the conclusion that Jesus “would also demand the total defencelessness of his disciples in times of oppression and that he would reject all use of worldly power for their benefit as incompatible with his kingdom.”
As the disciples went on the mission on which Jesus sent them, they suffered a great deal at the hands of the rulers of the nations to whom they went but, in spite of the opposition, the Church grew until eventually it was embraced by the Emperor Constantine as the religion of the Empire: an early example of its establishment.
As the years rolled on and the Church became more powerful, it manifested considerable muscle, particularly in the nations that came to be known as Christendom. Although it experienced the great division between the Eastern and the Western Churches, particularly in the West, it continued to make vassals of nations and their rulers, and to dominate law and order until the Reformation.
We are all familiar with what happened in England where what has been called the King’s Reformation occurred. As a result of Henry VIII ‘s desire for a male heir, and the Pope’s refusal to let him divorce Catherine of Aragon, Henry decided that he would himself take over from the Pope as head of the church in England. No change in the tenets of the church was involved, except those concerned with the government of the church. Thus it became true that the Monarch became “in all causes ecclesiastical as well as civil throughout his realms supreme,” and the title of Defender of the Faith that the Pope had earlier conferred on Henry remained appropriate, since the change affected only the government of the church and not the faith which it confessed.
It is clear that Henry’s object was to gain control of the church so that he would gain the Church’s authority to divorce Catherine. I have seen it suggested that there was a desire for change on other grounds among the people of England.
Since that time the relationship has been subject to many changes. The principal features of the relationship today are that Her Majesty the Queen, as our ruling monarch, is the Supreme Governor of the Church of England. Parliament has certain authority over the Church, although the Church has power to regulate its worship, subject to a condition I will mention later. The Crown has the power of appointment to many offices in the Church; twenty six bishops of the Church of England have seats in the House of Lords; the Church of England clergy conduct national services in England such as the Coronation, royal marriages, celebration of royal anniversaries and national anniversaries such as the armistice day at the Cenotaph; and the Archbishop of Canterbury, as a matter of protocol, has precedence immediately after the Royal Family.
It is worthy of note that the Succession to the Crown Act, recently passed, does not alter the unambiguous provisions of the Bill of Rights and the Act of Settlement requiring the Sovereign to be a Protestant and in communion with the Church of England.
The Church of England has power to legislate by means of Measures to alter the laws affecting it. These are laid before a special Committee of members of both Houses of Parliament, called the Ecclesiastical Committee, for consideration. If thereafter a Measure is approved by each House by resolution, it goes forward for Royal Assent and, on that being given, it becomes law as if it were an Act of Parliament.
By virtue of the Church of England (Worship and Doctrine) Measure 1974, the Church has power by Canon to alter the Worship of the Church if the doctrine of the Church is not adversely affected. References in the Measure to the doctrine of the Church of England are to be construed in accordance with the following statement:
The doctrine of the Church of England is grounded in the Holy Scriptures, and in such teachings of the ancient Fathers and Councils as are agreeable to the said Scriptures. In particular such doctrine is to be found in the Thirty-nine Articles of Religion, the Book of Common Prayer, and the Ordinal.
My reading of the Measure is that the Church itself is the judge of whether the doctrinal condition is breached. The Measure thus removes the difficulty at the root of the 1928 controversy relating to the change of the Prayer Book. On that occasion Winston Churchill warned that by defeating the proposal again, the House of Commons “would inaugurate a period of chaos which could only be corrected by disestablishment.” You can see why I am reluctant to embark on prophecy.
What are the challenges this relationship faces today?
Firstly, and as the general context of the current debate, since the 1960s there has been growing opposition from the secularist lobby to the establishment of the church. The secularist position represents a commitment to a relativistic approach to religious truth, and therefore holds that the Christian faith should abandon its claim to be in possession of absolute or final truth. This, together with the assumption of a radical split between the public realm of “facts” and the private realm of “values” (religion finding its place entirely within the private domain), means, as pointed out by the late great missionary statesman and ecumenist Bishop Lesslie Newbigin, that “the rival truth claims of the different religions are not felt to call for argument or resolution; they are simply part of the mosaic – or perhaps one should say kaleidoscope – of different values that make up the whole pattern.” Since all religions are equal in status and independently valid, the secularist argument goes, it is inappropriate for any particular religion to enjoy the privilege of establishment.
As Bishop Newbiggin states, however, “no state can be completely secular in the sense that those who exercise power have no beliefs about what is true and no commitment to what they believe to be right.” It is sometimes forgotten that the position of ideological pluralism, espoused by secularism, itself involves a claim to absolute truth, affirming as it does, in the words of a distinguished Biblical scholar and theologian, “the dogmatic opinion that all dogmatic opinions are to be ruled out.” [Prof. D.A. Carson] Or, as Newbigin puts it, “The difference is not between those who rely on dogma and those who don’t. It’s the difference between those who know what the dogma is they are relying on, and those who do not.”
True tolerance does not imply indifference to the truth. In a society which has been nourished in its deepest roots by the Christian faith and tradition, can it really be impossible to envisage, with Newbigin, “a state that acknowledges the Christian faith as true, but deliberately provides full security for those of other views.”
Philip Collins, writing in the Times on 28 December 2012 said: “A multicultural nation is poorly symbolised by the establishment of one faith.” He also refers to the falling attendance on Church of England services as a support to this argument. There is no doubt that on great national and anniversary occasions many do attend, either in person or via the media, services led by the Church of England, and that in areas of religious and ethical division an office-holder in the Church of England, often the local bishop, is regarded as the leader of meetings to dissipate tensions.
At the beginning of the Diamond Jubilee celebrations, Her Majesty the Queen attended a function at the Archbishop of Canterbury’s London home, when she said this:
Here at Lambeth Palace we should remind ourselves of the significant position of the Church of England in our nation’s life. The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead the Church has a duty to protect the free practice of all faiths in this country.
I should also mention the fact that 26 Bishops have seats in the House of Lords, as an aspect of this particular challenge. It has to be kept in mind that the role of the House of Lords in legislating is subservient to that of the House of Commons, and that no provision can form part of an Act of Parliament without the consent of the House of Commons, and no such provision can be prevented from becoming such a part, except for a delay of one year, if the House of Commons agrees that it should. I think it can be said that the bishops see their role in the Lords as according with Her Majesty’s statement, and to bring the attention of the House to Christian principles bearing on matters under discussion.
It is certainly not the case that all adherents of non-Christian faiths in Britain view themselves as ill-served by the establishment of one faith. Terry Sanderson, president of the National Secular Society quotes, with disapproval, the view of the Chief Rabbi, Lord Jonathan Sacks, as reported by Archbishop John Sentamu on the BBC Radio 4 Today programme, that one benefit of establishment is that “it keeps religion at the forefront of the nation.” There is some evidence that the Chief Rabbi’s view of establishment may be quite widely shared by people belonging to diverse faith groups.
Secondly, it is sometimes held that this relationship is one that necessarily impedes the mission of the church, as set out in the terms of our Lord’s Great Commission to which reference was earlier made.
Let me offer two particularly colourful examples. The first was elegantly expressed in 1968 by the late Professor D M Mackinnon, a distinguished Scottish Episcopalian, who was Professor of Divinity in the University of Cambridge. ”Where England is concerned , the passing of Establishment as we have known it would surely lead to a day in which episcopal lawn sleeves would cease to flutter in the breeze as their wearer bestowed the diocesan benediction upon the latest Polaris submarine”. Philip Collins, writing in the Times on 28 December 2012, is equally graphic: “It is easy for church ministers to avert their eyes from the dismal truth if invitations to fancy- dress state balls drop regularly on to the rectory doormat.”
In different ways, these both express the view that ministers of the gospel are at risk of not being faithful to their Divine Master if they serve in a church that has a state connection. Whatever walk of life we follow, we will face risk of being lured from loyalty to our Lord’s teaching by some distraction. Our Lord Jesus understood our vulnerability in this respect and also the way we should handle it when He taught us to pray, “Lead us not into temptation.” The vigorous criticism of Government policy from the standpoint of Christian principles, emanating from the highest levels in the Church of England in recent years, seems evidence that this prayer in the Church has been made and answered. However I do not underestimate the continual danger of this threat.
My impression is that a closely related threat arises from the wish to be popular or acceptable to public opinion. This is not, in my view, the result of establishment. We all must be conscious of this whatever church we support, established or disestablished, or if in our lives we are guided by moral principles which may have no religious base. There is always a possibility that the generally held view will differ from ours. Are we to go along with the tide or stick to our principles? It is usually easier to go along with the tide. Swimming against it involves strength of commitment. In his tribute to Baroness Thatcher, Lord Tebbit remarked that, “She pursued that which she believed to be right. I must say that as her party chairman I found that my life was made much easier by my understanding of the certainties of her beliefs. She never asked me to commission a focus group.”
So far as the Church is concerned, its duty is to follow its Commission and to teach the nation what it has received from its Master. That is the source of its authority. The scriptures and post biblical history contain many examples where the Church’s message has not been popular, but I do not see that its being established is of itself an impediment to the Church’s mission.
Frequently alleged also, it should be said, is the threat of interference by Parliament in the affairs of the Church. As I have narrated above, developments in the relationship between Parliament and the Church over the years have greatly reduced this possibility. The proposals of the Government on same sex marriage have made clear that it is not intended to require the Church of England to act upon these. This, I think, tends to confirm this trend.
It is often argued that the place of the Christian and the Church must necessarily be outwith all established power, in the place of the victim and protestor. It is of course true that in the light of the cross “no political order can be identified with the reign of God.” It is nevertheless a mistake to see Jesus simply, as Newbigin said, as “the greatest of those who have died in revolt against established power.”
Rather, “Jesus died as the beloved Son of the Father, by whom the powers that killed him are authorised.” What Jesus condemned was not Pilate’s authority but its abuse. As Newbigin says, “All kingship from Calvary onwards is tested and judged by the standard of the true kingship established there; judged and tested, not eliminated.”
As Jesus exercised his kingship by bearing witness to the truth, so the church, as an essential part of its mission, is called to seek to shape public life in the light of Christian truth.
The necessary distinction between (church and state) with respect to their powers and responsibilities does not negate the fact that those who exercise political authority are responsible to God – the only God, Father, Son, and Holy Spirit – and it is the duty of the church to remind them in season and out of season of that fact.
Since both church and state receive their mandate from the God who is revealed in Christ, the provision of Establishment may be seen as providing valuable, God-given, opportunities in furthering the church’s vital task of bearing witness to the supreme kingship of Jesus before the principalities and powers of this present age.
John has also asked me to sketch the development of relations between Church and State in Scotland and I now turn to do that. Some humility in doing so is appropriate, as the Bishop of Durham is reported to have said in 1930, “The principal factor in the Church of Scotland’s successful achievement of autonomy in establishment is the political insignificance of Scotland. Who cares what is done or said in the Scottish Churches?” It is interesting to note that one of his successors demitted that office to take up office in the University of St Andrews.
In Scotland, the authority of the Roman Catholic Church and the Pope were renounced by what has been called the Reformation Parliament, in 1560. The constitutional position of the church was described in an exchange between Andrew Melville and King James VI of Scotland in 1596, when Melville told the King that there were two kings and two kingdoms in Scotland, and one was “Christ Jesus the King and his kingdom the Kirk, whose subject King James the Sixth is, and of whose kingdom he is not a king, nor a lord, nor a head, but a member.”
I pass over the consequences of this exchange and note that at the ratification of the Treaty of Union between England and Scotland in 1707 it was provided that the Church of Scotland was to remain the true Protestant religion, and the worship, discipline and government of this Church were to remain without any alteration to the people of Scotland in all generations. In 1712 Parliament passed the Church Patronage Act, with profound consequences. In the first half of the 19th century, a series of cases in the courts brought to a head the dispute about who should choose the minister of a congregation, the patron under the Act of Parliament, or the members of the congregation. The courts decided in favour of the patron, and as a result a very substantial number of the ministers and people left the Church of Scotland, one of the leaders of the Disruption, Thomas Chalmers, declaring that they had left a vitiated establishment, but would be happy to return to a pure one.
The new Church was the Church of Scotland Free or as it came to be known as the Free Church of Scotland. This Church was set up as a church independent of the state, but holding as part of its doctrine to the establishment principle. That principle had been stated in the Westminster Confession, approved by the General Assembly of the Church of Scotland in 1647 and approved by the Scottish Parliament in 1649, and again in 1690, and is described in this way in a decision of the House of Lords when the constitution of the Free Church of Scotland was under discussion: “It is the duty of the civil magistrate to maintain and support an establishment of religion in accordance with God’s Word.”
In 1900 the Free Church of Scotland united with the United Presbyterian Church of Scotland to form the United Free Church of Scotland. The United Presbyterian Church was composed of successors to people who had left the Church of Scotland earlier, on doctrinal grounds, and who did not accept the establishment principle. A small number of ministers and elders of the Free Church refused to join the union. Hence the litigation to which I earlier referred, in which they claimed the property of the Free Church on the ground that the united Church did not subscribe to principles of the Free Church on which the title to its property depended. The United Church lost the litigation, but since the numbers of those who did not join the union were so small that they could not hope to use the property to which they had been found entitled, the Royal Commission was set up to divide the property on a practical basis. In due course negotiations were initiated for the re-union of the United Free Church with the Church of Scotland and, as a precursor to such union, the Church of Scotland Act 1921 was passed, which made it clear that no civic authority had power to legislate or to adjudicate finally on any matter of doctrine, worship, government and discipline in the church.
The relationship with the civil magistrate is defined in the Schedule to that Act as follows;
VI This Church acknowledges the divine appointment and authority of the civil magistrate within his own sphere, and maintains its historic testimony to the duty of the nation acting in its corporate capacity to render homage to God, to acknowledge the Lord Jesus Christ to be King over the nations, to obey His laws, to reverence His ordinances, to honour His Church, and to promote in all appropriate ways the Kingdom of God. The Church and the State owe mutual duties to each other, and acting within their respective spheres may signally promote each other’s welfare. The Church and the State have the right to determine each for itself all questions concerning the extent and the continuance of their mutual relations in the discharge of these duties and the obligations arising therefrom.
The re-union finally took place in 1929. The Church of Scotland has enjoyed financial autonomy since 1933. Her Majesty, the Queen appoints a person, the Lord High Commissioner to represent her at the General Assembly if she does not attend Herself. The Moderator invites him or her to address the Assembly near the beginning of the meeting, and near the end, but he or she does not intervene in any other way.
I think it can be said that the relationship of the State to the Church of Scotland is one of recognition with a degree of support. As Professor Frank Lyall has said, “All that establishment means is that the civil authority has recognised the Church’s self-imposed task to bring the ordinances of religion to all Scotland, and looks to the Church on suitable ceremonial occasions. “If Scotland were to become a separate State from the rest of the United Kingdom, I would expect the relationship between the State and the Church of Scotland would remain the same.
The relationship between the State and the Church of England could be described as one of limited participation of the State in the Church of England.
The Church of Ireland was disestablished by the Irish Church Act 1869 which took effect on1 January 1871. The Church in Wales was disestablished by the Welsh Church Act 1914 which came into force in 1920.
The relationship of the State to the Church which carries the name of the country in which it functions differs markedly from place to place but I conclude by saying that I believe the promise with which I started, namely, that the Church, whatever her vicissitudes, and whatever her relationship with the State, will enjoy the presence of her Master who founded her, when she is carrying out His Commission.