9 Ecc LJ 1 (2007)

handle is hein.journals/ecclej9 and id is 1 raw text is: 
(2007) 9 Ecc LJ 1-4   The Ecclesiastical Law Society
doi: 10.1017/So956618XO700004


EDITORIAL




MARK   HILL


The legal status of the Church of England, and its idiosyncratic relationship with
the state, is anomalous not merely in a global perspective but in relation to other
churches  in the United  Kingdom,  including  autonomous   provinces of the
Anglican  Communion in Wales, Scotland and Northern Ireland. But the
nature of establishment and its wider consequences are not fully understood.
It will be recalled that the Court of Appeal fell into error in the Aston Cantlow
litigation in finding that a parochial church council was a public authority for
the purposes of the Human  Rights Act 1998, basing its assessment principally
upon  the fact that the Church of England is an established church.' The House
of Lords (Lord Scott of Foscote dissenting in part) unanimously rejected both the
reasoning and conclusions of the Court of Appeal.2 This is how Lord Nicholls of
Birkenhead  put it:

   Historically the Church of England has discharged an important and influ-
   ential role in the life of this country. As the established church it still has
   special links with central government. But the Church of England remains
   essentially a religious organization. This is so even though some of the
   emanations of the church discharge functions which may  qualify as gov-
   ernmental. Church  schools and the conduct of marriage services are two
   instances. The legislative powers of the General Synod of the Church of
   England  are another. This  should not  be  regarded as  infecting the
   Church of England as a whole, or its emanations in general, with the char-
   acter of a governmental organization.3

Lord Hope  of Craighead recognised that the Church of England as a whole has
no legal status or personality, but that its relationship with the state is one of rec-
ognition, not the devolution to it of any of the powers or functions of govern-
ment. Lord Rodger  of Earlsferry stated that 'the juridical nature of the Church
is, notoriously, somewhat amorphous' but considered  that the mission of the
Church   is a religious mission, distinct from the  secular mission  of the

1   Aston Cantlow Parochial Church Council v Wallbank [2001] 2 All ER 363, CA.
2   Parochial Church Council ofAston Cantlow v Wallbank [2004] 1 AC 546; [2003] 3 All ER 1213; (2004) 7
    Ecc LJ 364, HL.
3   Per Lord Nicholls of Birkenhead at para 13.

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