Table Of ContentLaw and Religion
RELIGION, LAW AND
THE CONSTITUTION
BALANCING BELIEFS IN BRITAIN
Javier García Oliva and Helen Hall
‘The position of religion in British public life is discussed and contested today
more than ever; but the question is not often thought through in relation to
wider issues about conscience and the moral accountability of public life. The
authors of this highly original and intelligent book examine carefully the way in
which legal approaches to religion in the UK help to safeguard the possibility
of conscientious diversity and moral debate in British society. A very important
book for all who are concerned about preserving ethically literate democracy.’
– Archbishop Rowan Williams, United Kingdom
‘This timely book is a subtle and in places provocative meditation on the place
of religion in the constitutional framework of Great Britain. While the frame-
work prioritises the rule of law, parliamentary sovereignty, checks and balances,
and protection for human rights it also, argue the authors, contains a valu-
able soft presumption in favour of religious practice. This aspect of legal and
political culture, they suggest, has produced over time a system that is broadly
liberal. It is also tolerant not only of a wide range of religious practices but also,
by analogy and extension, of the practices of many other belief systems includ-
ing atheism.’ – Dawn Oliver, Emeritus Professor of Constitutional Law, UCL,
United Kingdom
Religion, Law and the Constitution
This book examines the existing constitutional and legal system in England, Wales
and Scotland, through the prism of its treatment of religion and belief. The study
encompasses questions of Church/state relations, but pushes far beyond these. It
asks whether the approach to religion which has spread out from establishment
to permeate the whole legal framework is a cause of concern or celebration in
relation to individual and collective freedoms.
The primary focus of the work is the synergy between the religious dimension
of the juridical system and the fundamental pillars of the Constitution (parlia-
mentary sovereignty, the rule of law, separation of powers and human rights).
Javier García Oliva and Helen Hall challenge the view that separation between
public and religious authorities is the most conducive means of nurturing a free
and democratic society in modern Britain.
The authors explore whether, counter-intuitively for some, the religious dynamic
to the legal system actually operates to safeguard liberties, and has a role in generat-
ing an inclusive and adaptable backdrop for our collective life. They suggest that
the present paradigm brings benefits for citizens of all shades of religious belief and
opinion (including Atheist and Humanist perspectives), as well as secondary advan-
tages for those with profound beliefs on non-religious matters, such as pacifism and
veganism. In support of their contentions, García Oliva and Hall examine how the
religious dimension of the legal framework operates to further essential constitu-
tional principles in diverse settings, ranging from criminal to family law.
In a groundbreaking move, the authors also set the legal discussion alongside
its social and cultural context. They consider how the theological perspectives of
the larger faith traditions might influence members’ ideas around the key con-
stitutional precepts, and they include extracts from interviews which give the
personal perspective of more than 100 individuals on contemporary issues of law
and religious freedom. These voices are drawn from a range of fields and posi-
tions on faith. While the authors are at pains to stress that these sections do not
support or advance their legal or theological conclusions, they do provide readers
with a human backdrop to the discussion, and demonstrate its crucial importance
in twenty-first century Britain.
Dr Javier García Oliva, Senior Lecturer in Law, University of Manchester.
Dr Helen Hall, Lecturer in Law, Nottingham Trent University.
Law and Religion
The practice of religion by individuals and groups, the rise of religious diversity and
the fear of religious extremism, raise profound questions for the interaction between
law and religion in society. The regulatory systems involved, the religion laws of
secular government (national and international) and the religious laws of faith com-
munities, are valuable tools for our understanding of the dynamics of mutual accom-
modation and the analysis and resolution of issues in such areas as: religious freedom;
discrimination; the autonomy of religious organisations; doctrine, worship and reli-
gious symbols; the property and finances of religion; religion, education and public
institutions; and religion, marriage and children. In this series, scholars at the fore-
front of law and religion contribute to the debates in this area. The books in the series
are analytical with a key target audience of scholars and practitioners, including law-
yers, religious leaders and others with an interest in this rapidly developing discipline.
Series Editor: Professor Norman Doe, Director of the Centre for Law and
Religion, Cardiff University, UK
Series Board:
Carmen Asiaín, Professor, University of Montevideo
Paul Babie, Professor and Associate Dean (International), Adelaide Law School
Pieter Coertzen, Chairperson, Unit for the Study of Law and Religion, University
of Stellenbosch
Alison Mawhinney, Reader, Bangor University
Michael John Perry, Senior Fellow, Center for the Study of Law and Religion,
Emory University
Titles in this series include:
Law, Religion and Love
Seeking Ecumenical Justice for the Other
Paul Babie and Vanja-Ivan Savić
Distinguishing between Islam, Islamism and Violent Extremism
A Philosophical-Legal Guide
Matthew Wilkinson
Religion, Law and
the Constitution
Balancing Beliefs in Britain
Javier García Oliva and
Helen Hall
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
2018 Javier García Oliva and Helen Hall
The right of Javier García Oliva and Helen Hall to be identified as
authors of this work has been asserted by them in accordance with
sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: García Oliva, Javier, author. | Hall, Helen, (Law teacher), author.
Title: Religion, law and the constitution : balancing beliefs in Britain /
Javier García Oliva and Helen Hall.
Description: New York : Routledge, 2017. | Series: Law and religion |
Includes bibliographical references and index.
Identifiers: LCCN 2017012353| ISBN 9781138838352 (hbk) |
ISBN 9781315734361 (ebk)
Subjects: LCSH: Freedom of religion—Great Britain. | Church and state—
Great Britain. | Constitutional law—Great Britain.
Classification: LCC KD4100 .G37 2017 | DDC 342.4108/52—dc23
LC record available at https://lccn.loc.gov/2017012353
ISBN: 9781138838352 (hbk)
ISBN: 9781315734361 (ebk)
Typeset in Galliard Std
by Swales & Willis Ltd, Exeter, Devon, UK
www.manchester.ac.uk/balancing-beliefs
To our parents, Gloria, Paco, Kit and Richard, for their
support and love throughout the years.
To Irene, Manolo, Manuel, Javier and Sidney, for bringing
so much joy to our lives, and to the memory of David
and Fred.
Contents
Table of statutes xi
Table of cases xv
Table of secondary legislation xx
Anglican ecclesiastical law xxi
International conventions and treaties xxii
Acknowledgements xxiii
Foreword 1
DOMINIC GRIEVE QC MP
Introduction 3
BARONESS ELIZABETH BUTLER-SLOSS
Preliminary thoughts 5
JAVIER GARCÍA OLIVA AND HELEN HALL
1 Church/state relations and their historical evolution:
whale knees or penguin wings? 11
2 Religion in the current paradigm: the flight of the
penguin? 50
3 Non-religious beliefs in the current paradigm 127
4 The rule of law and the religious character of the
Constitution and the wider legal framework 156
5 Parliamentary supremacy and the religious character of
the Constitution and the wider legal framework 225
