Entrenching the establishment and free exercise of religion in the written U.K. constitution

Abstract

Religions make incompatible truth claims. This was recognised by the negotiators of the constitutional settlement that created Great Britain in 1706-07. This settlement contained two (logically incompatible but politically essential) clauses that established different varieties of Christianity as the “true Protestant religion” of Scotland and England. Since the union created a free trade and free movement area, it granted some freedom of exercise of religion to those penalized by establishment. The principles of non-establishment and of free exercise of religion may set up a conflict, which only courts can resolve. We discuss recent difficult U.K. cases where claims of freedom of religion conflicted with claims of state neutrality. The entrenchment intended by the drafters of the 1707 settlement has been violated by subsequent Parliaments. It should be made explicit by a law entrenching both non-establishment and free exercise of religion in the four countries of the United Kingdom. Such a move would lay to rest the ghosts of Sir William Blackstone and A. V. Dicey.