A very English affair: establishment and human rights in an organic constitution

Abstract

Introduction This chapter seeks to address the difficulties inherent in attempts to balance the presence of an Established Church and the modern human rights framework within a single constitution. It will argue that Establishment, which demands a place for religion in the public sphere, pulls in an opposing direction to that of the human rights framework, the general tendency of which is to remove religion into the private sphere. It will be argued that there is too often little attempt to address the potential conflict between human rights and Establishment, and an attempt will be made to examine the consequences of this omission. The focus of this chapter is upon the treatment of the Church of England within the human rights framework as implemented in the United Kingdom by the Human Rights Act 1998. In seeking to address this it will highlight the difficulties and complexities created, for those concerned with constitutional reform, by the non-documentary nature of the English constitution. It will illustrate that these difficulties and complexities are doubly present in respect of attempts to address the position of an Established Church which is itself a wide and varied body which has been subject to its own history of reform and its own internal forces. Through an analysis of the decisions of the Court of Appeal and the House of Lords in the case of Aston Cantlow v. Wallbank this chapter will examine the consequences of the interaction of a constitutional unwillingness to address the potential conflict between the ideologies of Establishment and the human rights framework; the history and characteristics of the English constitution and the Church of England and its institutions; and the language and frameworks developed under the European Convention on Human Rights (European Convention) and implemented in domestic law by the Human Rights Act 1998.