Religion and Scots law

December 7, 2015

This article was originally published in the 2015 Autumn edition of Humanitie magazine.

Religion and Scots Law by Professors Callum Brown & Jane Mair

These and related questions have been on our minds for the last 15 months.

In 2014, Humanist Society Scotland contracted us to explore the whole gamut of Scots law for the extent and nature of religious and ecclesiastical influence. With a generous grant of nearly £40,000, we employed a legal history researcher, Dr Thomas Green, to trawl the legal databases of law that impacts upon Scotland. The results of our investigation will shortly be published online by the Society and the University of Glasgow in a lengthy and detailed Report.

The databases provide the details on what laws are in force, whether they emanated from the Scottish Parliament at Holyrood, the UK Parliament at Westminster, or  the European Parliament. Some of the relevant law is very recent and relatively well known, but a great deal of the law concerning religion is of some vintage.

Moreover, it quickly became evident that there were some areas where there might be potential conflict between different legal measures – conflict that has not been subjected to definitive resolution.

Our Report will be structured under a series of headings:

The first of these concerns the thorny but vital question regarding the legal status of the Church of Scotland. Our Report will provide a detailed assessment of the Kirk’s powers today. Much of the former Kirk’s former status as the Established Church withered between the 1870s and the 1930s, as church taxes (the Teinds), church rights to inspect school education, and a host of other powers were removed or fell into disuse.

In addition, the Church was in most respects disestablished in the 1920s to make way for presbyterian reunion. But distinctive rights to spiritual independence from the state were thought to have been guaranteed.

However, recent court cases have thrown this into doubt, with human rights legislation being determined to outweigh the independence of the Kirk. Still, the Church of Scotland enjoys unique recognition in the solemnisation of marriage in Scotland, an automatic place on all 32 local authority education committees, the automatic placement of its chaplains in all Scottish prisons, and a continued role in the appointment of all candidates to pre-1932 theological chairs in Scotland’s four ancient universities.

A second heading of our Report will concern Education. Scottish state schools are split into two forms, non-denominational and denominational. In the former, the Church of Scotland enjoys a substantial degree of access by virtue of the statutory obligation to provide religious observance (RO) and religious instruction (now called RE/RME).

However, such rights are governed by legislative recognition of local customs which, in practice, devolve considerable powers upon headteachers; this is a distinctive feature of Scottish schools. Though local authorities are developing increased policy provision in relation to religion, headteachers exert considerable freedom in appointing chaplains or admitting representatives of other religious organisations; at present, there is little statutory control concerning who is admitted to the classroom and under what terms.

Our Report also explores the way in which legislation in 1918 establishing denominational schools may no longer apply merely to religious bodies, but could be read in conjunction with equality legislation to apply to other forms of belief body (including, for example, Humanist or Rationalist organisations which may be construed as having a right to seek the creation of their own schools).

All but four of Scotland’s 370 public denominational schools are conducted for the Roman Catholic Church, and along with the remaining Episcopalian and Jewish schools the Catholic Church enjoys various statutory rights over appointment of chaplains, approval of candidates to teaching posts as to religious belief and character, and to determine the religious education curriculum.

We also note that local authorities may discontinue any given denominational school, for instance on demographic grounds, but only if it can reach agreement with the denomination in question, failing which the decision of the Secretary of State for Scotland is final.

The third heading in our Report concerns Marriage, which has undergone the greatest degree of recent change of all the issues we examined. Readers will know that in 2005 Humanist celebrants were extended rights to conduct marriage. However, statutory change came only in 2014 when three notable reforms were made to Scots law, namely (i) the introduction of ‘belief’ ceremonies (creating a principle beyond Humanist groups); (ii) the extension of civil partnerships to religious and belief ceremonies, and (iii) the redefinition of marriage to include same-sex marriage. Each tended to reduce the influence of the churches, and of traditional religious conceptions of the singular nature of marriage, especially as virtually all the churches (excluding the Society of Friends and the Unitarians) have so far rejected performing same-sex weddings. The implications of this are profound, both for the churches and for marriage itself, but are outwith the reach of the Report.

We cover a host of other issues in our Report. These include the survival of laws providing special protection for religion, such as blasphemy, and consideration of the state of the Sabbath as a day with special religious status offered protection by law.  We provide a commentary to inform HSS and its members on special issues within which there may be policy issues worthy of reflection. But whilst religious issues are still deeply embedded by legislation in some Scottish institutions (such as schooling and some elements of universities), we also note the ways in which some sectors (such as marriage) have been radically transformed in recent years.

Overall, we note the clear evidence of a trajectory of change towards diminishing religious or ecclesiastical influence in Scots law. The mechanics of this loss, and the precise direction of change in the future, remain to be debated.

Our Report will be published in the New Year, and will accessible to all via the web. HSS members will be notified in advance of the publication, and we look forward to hearing your comments in due course.

Callum Brown is Professor of Late Modern European History at Glasgow University

Jane Mair is Professor of Private Law at Glasgow University

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