Evan Harris’s Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill and Lord Falconer’s recent remarks in a Radio 4 programme about its being an issue ‘to some extent in the air’ and ‘plainly an idea whose time has come’ have put the subject of disestablishing the Church of England back on the table.
‘Talked out’ on its Second Reading debate on 27 March and hence effectively rejected, the Bill would have amongst other things abolished the religious tests dating from 1689 which prevent Roman Catholics inheriting the throne. However, these presenting symptoms – serious as they are - of the remaining discriminations against Roman Catholics can mislead.
Whether anyone can become sovereign who either is themselves, or is married to, a Roman Catholic is how the question is still framed simply because we remain constitutionally stuck in the geopolitics of the late 17th century when that was how the issue was perceived. Nowadays that vision can be but a proxy for the larger contemporary question: when there is a great diversity of forms of religious belief as well as unbelief, how should the state behave in regard to this diversity. It is not just about Roman Catholics or the Church of England. It is about how the modern state should face all religions.
Well, things can certainly muddle along. It is convenient for government that the Church of England can - sort of - speak up for not only other Christian denominations but non Christian religions too. It is also convenient for the Church of England: it adds to that Church’s consequence as well as its wish to be of service. The non-Anglican religious put up with it because of the access to the apex of the political system that Anglican stewardship provides and fear political marginalisation were it to disappear. The wheels may wobble a bit, but the vehicle stays on the road.
And there is not perhaps all that much immediate puff either behind the discrimination arguments. As ministers have pointed out, the fact is that no-one remotely near the throne is themselves, or seems likely to marry, a Roman Catholic.
But an arguable lack of puff does not trump a lack of principle. There is undoubtedly religious freedom in the UK but there is not yet religious equality. Not only is there discrimination against Roman Catholics but no-one can be the sovereign who is not in communion with the Church of England. There is also therefore discrimination against sovereigns: they are not free to choose their own religion – or none.
What is to be done? One thing that may help is to avoid the establishment/disestablishment trope. This offers the view that the position of the Church of England is a uniform, coherent entity. Tackle one part and you have to take on the lot. Pull one loose thread and the whole jumper is bound to unravel. This is the position particularly of Church conservatives who claim that the moral legitimacy of the state is dependent on a particular channel to the divine.
Whilst this has the attraction of raising the bar for any revision and thereby making it appear all too difficult to contemplate, the concept is groundless. If it has value at all, ‘establishment’ is simply shorthand for the network of linkages between the Church of England and the state – a series of discrete mechanisms, some enshrined in law and others in custom, and not at all invariably mutually dependent.
Thus, for example, the departure of even all 26 Anglican bishops from the House of Lords would not sever that Church’s other privileged relations with the state. Ending the sovereign’s obligatory membership of the Church would not prevent a continuing personal relationship which could be converted, for example, into a form of patronage which simultaneously allowed the sovereign to express a greater openness to other religions.
It is this sense of a need to be open to the religious experience of others that has no doubt moved the Prince of Wales to muse about becoming the Defender of Faith rather than the Defender of the Faith – a move in understanding and reinterpretation of that title that could be accomplished without legislative change.
There is more, a lot more, to be said on the subject. The just published Church and State in 21st Century Britain: The Future of Church Establishment (Palgrave, 2009) - http://tinyurl.com/cfdthj  - tries to explain why we have got to where we are and what may be the pathways for moving on.
It is suggested that change may be accomplished without damaging any of the parties and so allow the state to create a more equal relationship with all faiths and none without denying the continuing validity of the religious heritage.
(c) Bob Morris is an Honorary Senior Research Associate at the Constitution Unit, Department of Political Science, UCL. He was formerly a career civil servant in the Home Office and headed the department concerned with the Home Secretary's then constitutional responsibilities