Magna Carta and church freedom in a world of lockdown

1 July 2020

Andrea Williams explains the importance of protecting church freedom even in the context of the current pandemic.

Last week, a group of 25 Church leaders supported by Christian Legal Centre filed a legal action challenging the Government’s lockdown of churches as an unconstitutional invasion of church liberties.

In an article published yesterday, the National Director of the Fellowship of Independent Evangelical Churches (FIEC), John Stevens, argues that there has been no such invasion, and the government acted within its rights.

There is much to agree with in Mr Stevens’ article. He is right to caution the churches against ignoring the government’s advice to take certain precautions when the churches re-open – you don’t want to endanger the health of your parishioners and others, and you don’t want to sabotage the church’s mission by exposing it to public anger as a collective Dominic Cummings.

Mr Stevens is also right to say that the Guidance issued by the government this week is not an unconstitutional invasion of church liberties. There is nothing wrong with anybody advising anybody else, including a government’s advice to a church. Had this been the government’s approach from the start, there would have been no constitutional issue to argue about.

Unfortunately, it was not so. The Government did not just advise – it chose to issue legally binding Regulations, backed by a threat of criminal sanction for ministers who fail to keep their churches closed during the lockdown.

Although the government continues to hold meetings with church leaders, those Regulations have still not been reversed. We need to see that happen. We are expecting new Regulations to be published on Friday. We hope and pray the government will stay true to its latest guidance thereby acknowledging the principle of the freedom of the Church.

Mr Stevens’ constitutional justification of that is much more questionable.

Magna Carta 1297 is still celebrated as the foundation stone of English democracy and rule of law. Its very first chapter reads:

FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable…

Most of the other provisions of Magna Carta have been repealed by now; but not this one.

In Mr Stevens’ argument, this is all ancient history, and long obsolete today. The Church fought for its independence from the state for many centuries. Magna Carta may have been a high point for the Church, but the ultimate outcome was a complete victory for the state, and a complete subjugation of the Church to Henry VIII and his successors. Ironically,  Mr Stevens here is in complete agreement with the Roman Catholics, who believe that the liberties of the English church came to an end with the Reformation.

Thomas More (the Catholic patron saint of lawyers) made essentially the same point when he was on trial for his life: that Henry VIII declaring himself the Supreme Head of the Church of England was an outright breach of c. 1 of Magna Carta.

In one sense, fairness requires to admit the element of truth in More’s and Stevens’s version of history. It would be absurd to pretend that preserving the independence of the Church of England from the state was high on Henry VIII’s list of priorities. In the longer term, the status of the Church of England as the Established Church had a profoundly ennobling effect on the British State – but inevitably compromised the purity of the Church. Today, when we see some of its bishops openly preaching homosexualism and transgenderism, it is fair to say that we are still paying the bill for Henry VIII. There is much to be said about this; but none of that would amount to a proper analysis in terms of constitutional law.

The English Reformation may have begun with Henry VIII, but it did not end there. Henry rushed to declare himself ‘the Supreme Head’ of the Church of England – rather overlooking Somebody Else who, as all Christians agree, is the Head of the Church from its beginning to the end of times. This and other overkills were corrected in the reign of Elizabeth I – she and her successors did not claim to be anything more than that ‘Supreme Governor’ of the Church. Moreover, Articles of Religion 1562 provide in Article 37: “Where we attribute to the King’s Majesty the chief government… we give not to our Princes the ministering either of God’s Word, or of the Sacraments”. Articles of Religion, and the wider 1559 Church-State settlement, are still in force today.

In the eyes of the law, whether or not Henry VIII breached Magna Carta, Magna Carta is the law of the land. Thomas More’s defiant interpretation of it is of no authority – what matters is the interpretation given by judges, at his trial and subsequently. Namely, that replacing the Pope with the Monarch does not infringe the liberties of the Church – it is just that one particular person is removed from a particular office within the Church, and another takes his place. True, the Monarch happens to be the head of state as well as of the church, but nevertheless, the state and the church inhabit different realms with their own rights and liberties.

This sort of logic is a recurrent pattern in British Constitution, which often permits the same person, especially Her Majesty, to wear different hats on different occasions. The Queen in Parliament is one constitutional authority; the Queen out of Parliament is quite another. Her Majesty is also the sovereign of Canada – but that does not give the officials at Whitehall any power in Canada. Her Majesty is at the head of the courts system – this does not mean that any civil servant is a judge, or vice versa. Her Majesty is the Supreme Governor of the Church of England – but she governs the Church via the Synod and the bishops, not via Cabinet and the civil servants.

Unfortunately, Mr Stevens’s argument ignores a number of crucial distinctions of this sort:

He is right to point out that the Queen in Parliament is sovereign; but that does not mean that every bureaucrat at Whitehall is sovereign. The lockdown of churches was not imposed by an Act of Parliament – it was imposed by Regulations issued by a team of faceless civil servants under the authority delegated to them by the Health Secretary, the Rt. Hon. Mr Hancock.

Is there a real difference – given that Mr Hancock is a member of the government which commands a majority in the House of Commons? There is. A Bill in Parliament would have been publicly debated, scrutinised and amended both in the Commons and in the Lords. The implications for the independence of the church would have been raised, resulting in a considered democratic decision one way or the other. By contrast for the Civil Servants in Whitehall, the issue was probably simply overlooked – ‘churches’ were just another item on the list, just between ‘cemeteries’ and ‘circuses’, and it only took half a second to tick the box.

Mr Stevens makes much of Her Majesty’s status as the Supreme Governor of the Church of England, Defender of the Faith etc. He overlooks the fact that this status is founded on the Coronation Oath to preserve the rights and privileges of the Church under the ancient church-state settlement.

It is true that the Queen in Parliament can legislate for the Church of England as well as on temporal matters – but there is a proper procedure for that, carefully set out in the Church of England Assembly (Powers) Act 1919. Church legislation is known as ‘Measures’, which have the same legal force as Acts of Parliament. Draft Measures have to go through the Legislative Committee of the General Synod and then the Ecclesiastical Committee of Parliament. The Act maintains a fine balance of power between the General Synod and Parliament. It is unconstitutional for Whitehall officials to bypass both of them, and instead legislate for the Church by regulations.

Finally, Mr Stevens points out that “The doctrine of Parliamentary Sovereignty militates against the idea of any fundamental right of this kind.” This observation is correct as far as it goes; but an implication that the English common law simply does not recognise the concept of ‘fundamental rights’ is quite erroneous. Unlike Mr Stevens, the common law does not take the doctrine of Parliamentary Sovereignty to its logical extreme – but rather strikes the fine balance between sovereignty and fundamental rights. As Lord Justice Laws explains in the well-known case of Metric Martyrs (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), para 62):

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental… And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

He then goes on to explain that ordinary statutes are subject to ‘implied repeal’: a later Act of Parliament always trumps an earlier Act. However, this is not so in relation to constitutional statutes such as Magna Carta. The Parliament can still repeal constitutional statutes and take away constitutional rights, but must do so expressly, and so face the political consequences. Until and unless that happens, legislation must be interpreted consistently with Magna Carta and all other constitutional statutes.

In other words, the solemn commitment “that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable” cannot be abrogated in a small print, e.g. by passing an Act of Parliament which gives the Health Secretary a power to issue all sorts of regulations for the protection of public health, and then one of those regulations includes a brief paragraph to say that all church services are hereby prohibited and criminalised until further notice.

Like so many things in the Magna Carta, the principle of liberty of the Church has steadily gained recognition across the world. Its modern reincarnation is the freedom of thought, conscience and religion, protected by Article 9 of the European Convention of Human Rights. An important principle consistently acknowledged in ECHR Article 9 jurisprudence is that of ‘church autonomy’: a secular public authority may not interfere with the internal workings of a church or religious organisation and may not impose rigid conditions on the practice or functioning of religious beliefs.

It is easy to justify, as Mr Stevens does, the need for drastic precautions to be taken to avoid the spread of Covid-19 in churches. There is no justification, however, for those precautions to be imposed by the state under the threat of criminal sanction, rather than voluntarily taken by the church. Indeed, in fact most of the churches had closed down voluntarily well before the lockdown was imposed by the government. The matter should have been allowed to rest at that.

After all, Whitehall abstained from enforcing any anti-Coronavirus measures on Scotland, Wales or Northern Ireland, and left it to the devolved administrations. Not because Coronavirus is trivial, and not because English lives are more important than Scottish – but because of the constitutional principle that these are devolved matters for those administrations to decide. In a similar way, the job of containing Coronavirus at church services should have been left to the church itself – out of respect for another constitutional principle. This does not mean that the job did not need to be done, or that it would not have been done.

For all we know, in this particular case, it may have been accidental that the government drove a coach and horses through the ancient liberties of the Church. There may have been no ill will on the government’s part – just an overwhelming amount of work and a tight deadline. Perhaps, the importance of that particular Magna Carta principle is not emphasised very strongly in contemporary civil servants’ education and training. Nobody really blames them for this error; all we are saying is that the error must be admitted and corrected. Now the government needs to agree with us that Magna Carta exists and that it is important – not least by withdrawing the current Regulations and issuing new Regulations that recognise this important principle. It is much better to debate and re-affirm this now, especially if it was breached accidentally, than to wait for a future occasion when this precedent may well be relied upon for some more sinister purpose (such as regulating the content or tone of our preaching).

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