On Friday 5 May a roundtable discussion exploring the Church of Scotland’s legal status took place at the University of Glasgow. It was the first in a series of events organised by the Humanist Studies Hub and the Law Reform and Public Policy Group, University of Glasgow in collaboration with Humanist Society Scotland, and was supported by the College of Arts Knowledge Exchange fund. The seminar series builds on a landmark guide on the place of religion in Scots Law written by Professor Jane Mair, Professor Callum Brown and Dr Tom Green, Religion in Scots Law (2016, HSS). Events on the topics of Education, Marriage and Individual rights & employment are planned for later this spring.
The following report provided the basis for discussion on the event’s topic, the ‘establishment question’.
An established church?
There can be little doubt that the Church of Scotland was once the ‘Established’ Church in Scotland. During various periods between 1560 and 1690 there were clear ‘hallmarks’ of establishment.
The Act of Security 1706 appended to the Treaty of Union in 1707 used a new phrase: ‘the church of this kingdom as now by law established’. This phrase gave rise to the long standing view within Scottish legal and ecclesiastical circles that the Church of Scotland is the ‘Established Church’ within Scotland.
A series of schisms during the eighteenth and nineteenth centuries made the position very unclear: this phase of the Church of Scotland’s history may be viewed as involving disestablishment. In the 1921 Declaratory Act, no mention was made of ‘establishment’ or the ‘Established Church of Scotland’.
Prior to the 1920s the parishes of the Church of Scotland enjoyed a kind of established status through a system of ‘parish states.’ This formed the bedrock of the last obvious area in which the Church of Scotland enjoyed the privileges of establishment. These matters fell under the jurisdiction of the Court of Teinds. From the 1920s onwards this entire system of parochial finance was deconstructed. This process has been viewed by some historians as the moment at which the old Church of Scotland ceased to be the Established Church.
This remains a matter on which there are different views and traditions. More recently, the Scottish Government appeared to acknowledge the ‘national church’ status of the Church of Scotland in the context of authorisation of marriage celebrants.
Questions of ‘establishment’ and ‘national church’ status in respect of the Church of Scotland may be misleading when trying to understand the present-day place of the Church in Scots law and the British constitution. Not only is the historical progression complex but the terms ‘established’ and ‘national’ have no definite meanings. Focus instead on areas where Church of Scotland continues to have some specific legal standing.
Ceremonial status Regardless of precise status as “established” or “national”, certain ceremonial aspects of relations between the monarchy and the Church of Scotland survive:
- the appointment of a Lord High Commissioner to the General Assembly of the Church of Scotland
- the appointment of an Ecclesiastical Household in Scotland out of the ministry of the Church of Scotland
- the status of the Moderator of the General Assembly of the Church of Scotland in the General Precedence of Scotland.
The position of the courts of the Church of Scotland – kirk sessions, presbyteries, and the General Assembly – in law still reflects pre-1920s statutory provisions and case law. As such these ecclesiastical courts are regarded as being part of the Scottish legal system, being courts of the land, whose records are public records, and whose citations may be enforced by warrants from Scottish sheriff courts. That said, the present-day jurisdiction of these courts is restricted to matters of internal government, worship, doctrine and discipline within the Church of Scotland, and it would be an error to suppose that these courts enjoy a jurisdiction to which people living in Scotland are automatically subject, in the way they are subject to Scottish civil and criminal courts. Rather, it may be argued that in practice the courts of the Church of Scotland are no different to the tribunals of voluntary associations, in that office holders within the Church of Scotland voluntarily submit themselves to the jurisdiction of the Church’s courts when accepting office.
Despite the fact that the Church of Scotland lost much of the control it once exercised in respect of office holders within Scotland’s four ancient universities – St Andrews, Glasgow, Aberdeen, and Edinburgh – all four universities still in theory make provision within their schools of divinity for the training of candidates for the ministry of the Church of Scotland.
In respect of Scottish non-denominational schools, the Church of Scotland continues to enjoy direct representation on local education committees by virtue of statute. Yet at the same time, the Church of Scotland enjoys little else by way of direct and explicit legal recognition in respect of such schools. Rather, the position of the Church of Scotland in respect to religious observance, religious education, and the appointment of chaplains to non-denominational schools by head teachers, is governed by custom. The Church of Scotland does not have any right, for example, to vet teachers nominated to posts within such schools, nor does it enjoy the right to inspect the provision of religious education in such schools, which is in marked contrast to its historical role.
In respect of Scottish prisons, the Church of Scotland enjoys unique statutory recognition in that its ministers and licentiates may be appointed as chaplains to every prison in Scotland regardless of the religious persuasions or otherwise of current inmates. Chaplains from other denominations and religions may be appointed to Scottish prisons depending upon the religious persuasions or otherwise of current inmates.
The Church of Scotland enjoys unique recognition within the statutory regulation by which the solemnisation of regular marriage is governed in Scots law. This unique recognition reflects the development of these statutory regulations since the early nineteenth century, prior to which marriage could only be regularly solemnised in a ceremony conducted by a minister of the Church of Scotland. More recently the position of the Church of Scotland in this respect has been considered to be a reflection of its ‘national church’ status by the Scottish Government, a rare instance of an acknowledgement of a correlation between ‘national church’ status and legal provisions.