With all this talk of an independent Scotland on the horizon, there is one question which leaps immediately to the front of one’s mind:
What impact would independence have on the constitutional position of the Church of Scotland?
At least, that’s what leapt to my mind. The Church of Scotland has a constitutionally unique position. It is the national church, but it is not established (as the Church of England is). Its spiritual independence is recognised (but not conferred) by Act of Parliament. What effect (if any) would there be if Scotland were to become an independent country?
So, on 18 January 2012, I e-mailed the Scottish Government and the Scotland Office to ask:
“I was wondering if you would be able to let me know what the likely effect of independence might be on the unique constitutional position of the Church of Scotland?
Regards,
Iain Nisbet”
First up, with a response (of sorts) is the Scotland Office. After getting a few digs in about the legality of a referendum, it goes on to answer the main point:
“In regard to your query as to what effect independence would have on the constitutional position of the Church of Scotland, it is the Scottish Government that is proposing independence and it is therefore for the Scottish Government to set out what independence would look like and what it’s effects would be.”
By the way, in an independent Scotland, civil servants will all be schooled in how to use apostrophes correctly!
So, over to you Scottish Government …
Letter from the Scotland Office dated 6 February 2012
Absolvitor archive post: Church of (an independent) Scotland – Part 1
Absolvitor: Scots Law Online 
Sorry for slow reply. In fact the CoS is established. Granted, not in the same way as the CoE, but it is. Until the 1950s it was known formally as the Church of Scotland by Law Established, to distinguish against the Church of Scotland, Free – which is known known as the Free Church of Scotland. It gets grants, it is approved by the Queen. It is favoured by the government over other churches.There is more types of church establishment than the most famous type. This was the reason why there was so much controversy in the 1929 union. It was a voluntary (anti-establishment) church uniting with the Church of Scotland by Law Established.
Hi Callum,
The constitutional position of the Church of Scotland was my dissertation topic, so I’ve done a reasonable amount of homework on it! Certainly we can argue about what is meant by “established” – but regardless of the title, the Church of Scotland was not “established by law” and the secular courts of Scotland have recognised that the Church’s spiritual jurisdiction is pre-existing and merely recognised by them. Thus the phrase, “national, but not established”. The Church of Scotland is not state funded and receives “grants” in the same way other charities do e.g. lottery funding for historic buildings and council funding for social work services. It is not “approved by the Queen” – she has the right to attend the General Assembly but not to take part and there is no state intereference of any sort permitted in matters of worship, doctrine, discipline or government.
Iain
There are some in the church who would like it to follow the Norwegian model and be funded by the government. This would make life considerably easier on controversial issues as the church would have to fall in line with politically agreed processes relating to equality and marriage. It would also give the Kirk the core funding it needs in order to continue providing a presence across the whole of Scotland based on a parish system. The argument is partly that things like funerals are a public service and should be state funded. Given that the SNP are talking up the Norwegian model in other areas this idea does seem to have legs. BTW i thought that the C of S was written into the act of settlement and as this would be ripped up by a yes vote in the referendum the churches position would need to be renegotiated with the new Scottish government?
It’s an interesting model, but would almost certainly be rejected by the Kirk – given the centuries spent fighting efforts to impose state control or interference. I am still waiting for a response from the Scottish Government on the implications of independence for the Church of Scotland, but the Act of Union simply guarantees protestant succession to the (UK) throne – it’s been a while since a British Monarch has been a member of the Kirk!
I think both of you have got the Act of Settlement and the Act of Union the wrong way round.
The Act of Settlement bars Catholics from the throne and has no real impact on the Church of Scotland.
Article XXV of the Act of Union protects Presbyterianism in Scotland by stating that the Church’s existing form of government “shall Remain and Continue unalterable”. The point was to prevent the new, English-dominated UK Parliament from imposing Anglicanism and bishops on Scotland. On separation*, the Act of Union would of course be repealed and the newly sovereign Scottish legislature could do as it liked. Even now, nothing prevents the UK Parliament from abolishing the Scottish institutions which the Act of Union supposedly preserves. This was done as early as 1746 – the Heritable Jurisdictions (Scotland) Act 1746 abolished the right of local lairds to hold their own civil and criminal courts and brought all Scotland under royal jurisdiction. This was despite Art XX of the Treaty of Union.
Furthermore, even the Scottish Parliament could make changes in contravention of Art XXV. s37 of the Scotland Act 1998 states that The Act of Union has effect “subject to this Act”. Only particular parts of the Act of Union are reserved under the Scotland Act, and Art XXV is not one of them.
About the Monarch’s membership of the Church of Scotland, the Royal Family has attended Crathie Kirk (near Balmoral) since 1848. This caused a stir at the time (due to the Queen’s headship of the Church of England) but I think the matter is probably settled by now.
*I don’t like to call it “independence” since Scotland is not and never has been a dependent territory of any country.
Scotland’s constitutional position places her on a different footing from other parts of the United Kingdom. The Treaty of Union which amalgamated the Parliaments of Scotland and England in 1707, guaranteed the continuing independence of Scotland’s legal system and Scotland’s religious institutions. (Thus, current proposals for a UK Supreme Court may be in breach of the Treaty!)
The Supreme Court opened for business in 2009. Just like its predecessor, the Appellate Committee of the House of Lords, it hears appeals from the Court of Session, and when it does so it sits as a Scottish court and applies Scots law. The fact that it is located in London is irrelevant.
The query over the constitutional position of the Church of Scotland in an independent Scotland is a political question, not a legal one. It is therefore “what SHOULD it be”? My only thought is that no church should have a constitutional role. Creating a national religion would please sectarian extremists who don’t necessarily go to church themselves but who display an outdated tribal aggression against those whose grandparents went to a different church.
That’s all very well (and would probably be the reality – i.e. a new state of Scotland would decide for itself whether to have a “national” church or religion and, if so, on what basis). The interesting point is that the Court of Session’s position when determining this matter was that the jurisdiction that allowed the church independence from the state in matters of “worship, doctrine, discipline and government” was a pre-existing spiritual jurisdiction, not one conferred by Parliament or any other mechanism of the state. Therefore, that being so, the new state of Scotland would have no more power to alter this position than the old state of the UK.
I don’t see how that follows. In legal terms, Parliament is sovereign and can make or unmake any law it wishes, including those relating to inherent jurisdictions. The Scottish Parliament can do the same as long as it doesn’t encroach on reserved matters or contravene the ECHR or EU law. Just because a topic hasn’t been legislated on before, doesn’t mean it never can be. (Though the Scottish Parliament might have to worry about ECHR Art 9 in this instance.)
Of course, members of the church might have other ideas about who wields supreme power, but that’s another matter.
It’s not just that the topic hasn’t been legislated on, the Westminster Parliament did legislate in the Church of Scotland Act 1921, not to confer a jurisdiction, but to say (effectively) that it already existed and that they had no powers in that area. This position was confirmed by the Court of Session in Logan v. Presbytery of Dumbarton 1995 SLT 1228.
I realise it’s a bit of an oddity, but there it stands – hence my question to the Scottish Government.
Logan recognises that the Act says the secular courts cannot interfere with the Church courts in respect of certain matters. That’s a far cry from saying Parliament cannot do so.
At p1232, counsel for the respondent submitted “If the Church were to [interpret the Articles] in an unacceptable way, the only sanction was that the recognition of the Church’s position might be withdrawn by Parliament”. Granted, he wasn’t the judge, but his arguments were upheld.
Can it really be imagined that, if Parliament enacted that the Court of Session should henceforth exercise its supervisory jurisdiction over the Church in matters spiritual, the Court would contradict this and declare such an Act to be ultra vires?
(P.S. any thoughts on my post above about Act of Union and the Act of Settlement?)
I think that, realistically, it may well be that a new Scottish Parliament decided to claim for itself powers to interfere with spiritual matters in the Church of Scotland – and probably they would ultimately prevail. The background to the 1921 Act was a loing history of the state trying to interfere with matters spiritual within the Kirk, and the various protests and schisms which followed. The position that was ultimately arrived at was not just that Parliament agree not to interfere, but that they had no right to interfere.
It’s a nice distinction and probably doesn’t sit very easily with a modern, multi-cultural Scotland. However, the Court of Session did declare it’s own interference with matters spiritual to be ultra vires – on the basis that Parliament had not conferred and did not have jurisdiction to do so.
I agree that things being what they are, future judges may not take the same view esp. if the Scottish Parliament had purported to legislate on the matter, but that would be contrary to the decision in Logan. Logan was not that long ago, and it’s not as if the courts have been shy about criticising the SP! Who knows?
My own view is that the Church of Scotland’s independence in these matters was not conferred by the Treaty of Union any more than it was by the 1921 Act. It is an independent (God-given, if you like) jurisdiction – recognised by the Courts and Parliament, but not dependent on that jurisdiction. You may regard that as a fiction – but so are all legal jurisdictions ultimately. For the time being at least, it is the accepted status quo. An attempt to change it would potentially see a return to the schisms and protests of yesteryear, but then perhaps the Kirk will ultimately schism by itself or be so weak that no-one will care any more?