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The Church of England - Charity Law and Human Rights pp 81–107Cite as

The Established Church: Governance, Organisational Structure and Theology

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Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 36))

Abstract

This chapter explains the Church of England: its status as the ‘established’ Church; how it is structured and organized; and its distinctive theological underpinnings.

It notes that the monarch on coronation is blessed by the Archbishop after taking an oath to be the ‘Defender of the Faith’. It explains that: the hierarchy of Church officials hold their posts by government appointment rather than election; all 26 Anglican bishops (the Lords Spiritual) sit as of right in the House of Lords on the government benches; bishops and priests are responsible for performing state weddings and funerals, acts of remembrances, memorial services as well as attending to the coronation. No other religion has such legal or political standing and no initiative by government or Church has ever been taken to change it.

The chapter explains the Church’s central organizational structures giving particular attention to the role and responsibilities of the General Synod which came into being in 1970 and consists of three houses: the house of bishops; the house of clergy; the house of laity. Attention is drawn to the distinctive theological underpinnings of Anglicanism and the key formative milestones that have shaped the development of the Church are set out and analysed.

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Notes

  1. 1.

    Tyler v. UK (1994) European Commission on Human Rights, Determination 21283/93. As cited in Hill, M. 2001. Ecclesiastical law, 2nd ed, 677. Oxford: Oxford University Press.

  2. 2.

    See, Barro, R.J., and R.M. McCleary. 2005. Which countries have state religions? The Quarterly Journal of Economics 120(4): 1331–1370.

  3. 3.

    Ibid at p. 13. Also, see, Kettell, S. 2013. State religion and freedom: A comparative analysis. Politics and Religion 6(3): 538–569.

  4. 4.

    Oxford University Press, Oxford, 1980.

  5. 5.

    (1907) 2 King’s Bench 112.

  6. 6.

    Ibid at p. 126.

  7. 7.

    Ibid.

  8. 8.

    [1992] 1 WLR 1036, 1042A.

  9. 9.

    Ibid at p. 1046.

  10. 10.

    [2003] UKHL 37.

  11. 11.

    See, Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v. Wallbank and another (Respondents) [2003] UKHL 37, per Nicholls LJ at p. 61.

  12. 12.

    Ibid, citing Sir Lewis Dibdin. 1932. Establishment in England: Essays on church and state, 111. London: Macmillan.

  13. 13.

    [2010] IRLR 872; 29 BHRC 249.

  14. 14.

    Ibid at para 26.

  15. 15.

    Ibid at para 20.

  16. 16.

    Ibid at para 23.

  17. 17.

    See, In re Masters of Bedford Charity (1819) 2 Swanston 470, 36 ER 696 at p. 712 when he refused to include Jewish children as possible beneficiaries of a fund established for the education, apprenticeship and marriage of persons engaged in religious practice.

  18. 18.

    See, for example: Best CJ “There is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England”, in Bird v. Holbrook (1828) 4 Bing. 628 at p. 641; and Sumner LJ “Ours is, and always has been, a Christian State. The English family is built on Christian ideas”, in Bowman v. Secular Society Limited [1917] AC 406.

  19. 19.

    (1754) 2 Swans 487, Chancery.

  20. 20.

    (1822) The Times 2 Feb. 1822.

  21. 21.

    (1850) 19 L. J. (Ch.) 416.

  22. 22.

    (1861) 29 Beav 589, 54 ER 756.

  23. 23.

    Cary v. Abbot (1802) 7 Ves 490; A-G v. Power (1809) 1 Ball & B 145.

  24. 24.

    Da Costa v. De Paz (1754) Dick 249, 21 ER 268; Amb 228, 27 ER 150; 2 Swanston 532, 36 ER 715. See, further, Herman, D. 2011. An unfortunate coincidence: Jews, Jewishness & English law. Oxford: Oxford University Press.

  25. 25.

    De Themmines v. De Bonneval (1828) 5 Russ 288.

  26. 26.

    Unitarian Relief Act 1813; Roman Catholic Charities Act 1832; and the Religious Disabilities Act 1846.

  27. 27.

    Shore v. Wilson (1842) 9 CI & Fin 355; Shrewsbury v. Hornby (1846) 5 Hare 406.

  28. 28.

    Bradshaw v. Tasker (1834) 2 My & K 221.

  29. 29.

    Straus v. Goldsmid (1837) 8 Sim 614; Re Braham (1892) 36 Sol Jo 712.

  30. 30.

    1855 c.81 (Regnal. 18 and 19 Vict). Not until the House of Lords ruling in Bourne v. Keane [1919] AC 815 did gifts for the saying of masses again become legal.

  31. 31.

    (1862), 31 Beav 14.

  32. 32.

    Ibid at pp. 19–20. Also, see, Re Michael’s Trust (1860) 28 Beav 39 when the same judge expressly ruled that no distinction could be made in law between the status of Jewish and Roman Catholic charities.

  33. 33.

    See, O’Hanlon v. Logue [1906] 1 IR 247 where Lord Walker advised that “the Court does not enter into an inquiry as to the truth or soundness of any religious doctrine, provided it is not contrary to morals, or contain anything contrary to law” at p. 259.

  34. 34.

    Clayton v. Ramsden [1943] AC 320 (HL). See, also, Re Moss’s Will Trusts [1945] 1 All ER 207 where Vaisey J was of the opinion that “the Jewish faith, whatever be the sense in which the words are used, is an expression of complete uncertainty” at p. 209.

  35. 35.

    See, for example, Doe, N. 1996. The legal framework of the Church of England, 9. Oxford: Clarendon Press.

  36. 36.

    The occupant of that post is currently Ms Rose Hudson-Wilkin, the 79th such chaplain.

  37. 37.

    Tierney, B. 1955. Foundations of the conciliar theory, 130. Cambridge: Cambridge University Press.

  38. 38.

    As explained in the 1919 Act: “A measure may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including this Act”.

  39. 39.

    (9 & 10 Geo. 5 c.76).

  40. 40.

    See, further, Cranmer, F., Lucas, J., and Morris, B. 2006. Church and state: A mapping exercise. London: The Constitution Unit, UCL.

  41. 41.

    See, further, Hurd, D. 2001. To lead and to serve: The report of the review of the see of Canterbury. London: Church House Publishing.

  42. 42.

    The Church of Ireland and the Church in Wales separated from the Church of England in 1869 and 1920 respectively.

  43. 43.

    See, further, Maseko, A.N. 2008. Church schism & corruption. Durban: Lulu.com.

  44. 44.

    See, Halsbury’s Laws (5th ed.), vol 3A, 2011, where a diocese is defined as “a legal division of a province and the circuit of a bishop’s jurisdiction” (citing Coke) at para 164.

  45. 45.

    In 2010, for the first time in the history of the Church of England, more women than men were ordained as priests (290 women and 273 men).

  46. 46.

    See, The Turnbull Report. 1999. Internal control: Guidance for directors on the combined code. London: The Institute of Chartered Accountants in England & Wales.

  47. 47.

    See, further, at: www.cepb.org.uk.

  48. 48.

    For further information, see Jones, P. Ecclesiastical law: Comments on English ecclesiastical law and related subjects, at: http://ecclesiasticallaw.wordpress.com/category/ecclesiastical-law-and-canon-law/.

  49. 49.

    See, Doe, N. 1996. The legal framework of the Church of England. Oxford: Clarendon Press.

  50. 50.

    See, Mackonochie v. Penzance (1881) 6 Appeal Cases 424, at p. 446.

  51. 51.

    See, Moore, G.E. 1993. Introduction to English Canon Law, 3rd ed. Oxford: Oxford University Press. Also, see, Read v. Bishop of Lincoln (1889) 14 Probate Division 88.

  52. 52.

    See, Adam, W. 1944. Legal flexibility and the mission of the church: Dispensation and economy in ecclesiastical law. Farnham: Ashgate Publishing. Also, see, Denning, L.J. 1944. The meaning of ecclesiastical law. Law Quarterly Review 60: 235.

  53. 53.

    See, Canons of the Church of England (7th ed.), Section G, The Ecclesiastical Courts, G 1 of Ecclesiastical Courts and Commissions.

  54. 54.

    See, Hill, M. 2001. Ecclesiastical law, 2nd ed, 1–2. Oxford: Oxford University Press.

  55. 55.

    (1876) 1 Probate Division 481 at p. 487. See, also, Marshall v. Graham (1907) 2 King’s Bench 112.

  56. 56.

    See, McGregor, A. 2009. Church of England, 3. Westminster: The Legal Office of the National Institutions of the Church of England.

  57. 57.

    Ibid, for more information on the ecclesiastical courts.

  58. 58.

    The chancellor or commissiary-general must be 30 years old and either have a 7-year general qualification under the Courts and Legal Services Act 1990, s.71, or have held high judicial office.

  59. 59.

    They must either hold a 10-year High Court qualification under the Courts and Legal Services Act 1990, s.71, or have held high judicial office.

  60. 60.

    [2010] EWHC (QB) 1294 (17 May 2010).

  61. 61.

    See, for example, the Acts of Uniformity and the Worship and Doctrine Measure 1974.

  62. 62.

    See, Todd, A. 1880. Parliamentary government in the British colonies, 415. London: Longmans & Co.

  63. 63.

    The ‘articles’ refers to the Thirty-Nine Articles of Religion, and the ‘formularies’ refers to the Book of Common Prayer and the Ordinal. Usually, all three documents are published and bound together.

  64. 64.

    (1868) 2 Law Reports Privy Council 365 at pp. 382–3.

  65. 65.

    The 1944 report Dispensation in Practice and Theory 1 was a response to Parliament’s rejection of the revised Prayer Book and its stipulation that the Church adhere to the Act of Uniformity and Book of Common Prayer of 1662. The report proposed ‘the revival or extension of the practice of dispensation’ (p. 159). Individual bishops, or the bishops collectively, would be empowered to dispense with obsolescent ecclesiastical laws and inconvenient liturgical rubrics. However, not until the Worship and Doctrine Measure 1974 did the Church acquire almost complete control of its liturgy.

  66. 66.

    See, further, at: www.churchofengland.org.

  67. 67.

    See, in particular, Cardinal John Henry Newman (21 February 1801–11 August 1890) who, as leader of the Oxford Movement, sought to restore many Catholic beliefs and traditional forms of worship to the Church of England. A large number of those who took part in the movement, most notably its leader, became Catholics, while others, in remaining Anglicans, gave a new and pro-Catholic direction and impulse to Anglican thought and worship.

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  1. The Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane, Australia

    Kerry O’Halloran

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O’Halloran, K. (2014). The Established Church: Governance, Organisational Structure and Theology. In: The Church of England - Charity Law and Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 36. Springer, Cham. https://doi.org/10.1007/978-3-319-04319-7_4

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