The unique place of religion, and belief, in the UK legal framework DR JAVIER GARCIA OLIVA, MANCHESTER UNIVERSITY

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1 The unique place of religion, and belief, in the UK legal framework DR JAVIER GARCIA OLIVA, MANCHESTER UNIVERSITY

2 Beyond Establishment It is well known that the Church of England is established. However, the consequences of this go far beyond Church/State relations. This one aspect of the Constitution has come to influence the entire legal system, in a wide variety of ways. Like a single olive in a salad, the religious dynamic changes and suffuses everything.

3 Consequences of Establishment From the Henrician Reformation onwards (with the exception of Civil War/Commonwealth) support for Established Church axiomatic for judges and Parliament. This was widely reflected in statute and caselaw e.g. Anglican monopoly on entrance to university, Parliament & Inns of Court, blasphemy law, interpretation of charitable purposes.

4 Widening privilege By 18 th/ 19 th centuries philosophical and political changes-less acceptable for State to subject individuals to prejudicial treatment on religious grounds. However-no revolution or rejection of Church of England. Generally, Anglican privileges expanded to benefit other citizens, rather than stripped away. E.g. charity law, marriage law.

5 Systemic support for religion The law moved from supporting Anglicanism, to supporting religious beliefs. This is not to say that there was a plan or consistency-some areas of privilege/detriment remained. But generally religion treated positively by the legal framework as a result of Establishment roots + widening privilege.

6 Non-religious beliefsan unexpected consequence This systemic approach towards religion also had an impact upon non-religious beliefs i.e. beliefs of a profound nature not relating to religious questions. This worked by both association and analogy Pacifism is a good paradigm example of this.

7 Pacifism-Protection by association and analogy From the 18 th century onwards, religious objections to compulsory military service were recognised. Quakers were exempt from the Militia Ballot Act They were also one of the few categories of people able to successfully demand release if caught by naval press gangs.

8 First World War and Pacifism By the time of the First World War, pacifist objections to military service were strongly associated with religious convictions. It was accepted that religious pacifist principles should be respected by laws imposing military service. This religious association gave pacifists greater numerical strength and social respectability.

9 Protection by analogy But not all pacifists/conscientious objectors were religious. Some Communists had conscientious objections to fighting other workers. If one person s conscience allowed them to escape military service then rationality and equality demanded that so must another person s. Treating religious and nonreligious objections differently was not viable.

10 Equal Legal Protection The Military Service Act 1916 dealt with conscientious objection not religious objection. Those with non-religious beliefs opposed to active participation were accorded protection. Had there not been the association and analogy with religious beliefs, it is extremely unlikely that this would have been the case.

11 Reflections This is not to say that the protection was either perfect for religious or non-religious objectors (many conscientious objectors during WWI were treated to shameful and unlawful abuse) but the statute placed them on an equal footing. This was the result of the approach which the legal system had to matters of belief and conscience.

12 Reflections A similar pattern of protection by association and analogy can be seen in other contexts. Sometimes asserted that Establishment = Religious Privilege. Reality is much more nuanced and complex than that. In some ways a religious Constitution/legal system has out-workings with protect Belief more widely than Religious Belief.