Religion in Scots law: landmark report

February 29, 2016

A landmark report funded by the Humanist Society Scotland (HSS), conducted by the University of Glasgow, has been released today.

The report finds a weakening of the position of religion in Scots law in all areas, except education, where it has been significantly strengthened in recent years.

The report was commissioned in November 2014 with HSS providing £40,000 of funding to cover the costs of the research team including a full-time post-doctorate researcher. HSS are supporting the release of this report, in full, into the public domain, in the hope that it will inform the debate about the role of religion in public life.

Speaking about the launch of the report, HSS Chief Executive Gordon MacRae said:
“We’re very pleased to be able to support the release of this report today. The motivation for this commission came from the increased public and political awareness of the changing role of religion and belief in Scottish public life.

“Many people in Scotland will be surprised by the quirks highlighted in this report, such as; Church Ministers getting a 50% discount on their Council Tax, religious communities being exempt from the requirement to pay a minimum wage, and the fact that Scotland never quite got around to repealing the Blasphemy law.”

“But for us the most significant theme in the report is a weakening of the position of religion in Scots law in all areas, except education; where it has been significantly strengthened in recent years.

“Humanist Society Scotland supports the move towards an inclusive, secular education system where children and teachers are not discriminated against because of their religion or belief. This report will be key catalyst for the ongoing public debate about the role of religion in education. In the coming weeks and months we will be outlining our position for reform of the education system in Scotland.”

(l-r) Gordon MacRae, Callum Brown and Jane Mair — (l-r) Gordon MacRae (HSS Chief Executive), Prof. Callum Brown and Prof. Jane Mair

Prof. Callum Brown, University of Glasgow, said:
“I am delighted to be able to release this comprehensive report into the public domain today. This report is a significant contribution to the current public debate about the role of religion in Scottish public life.

“This report will be of particular interest to academics, campaigners and policy-makers in Scotland. We hope that by giving an authoritative and comprehensive examination of the areas into which religion intrudes into Scots law will help to inform the current debate.

“The report outlines examples of religion’s place in the law, which is by and large now being eroded by human rights legislation from Europe, Westminster and Holyrood. This report is timely, given the upcoming Scottish Parliament elections in May, and we are confident it will inform the policies of future Scottish Governments in the years to come.”

Prof. Jane Mair, University of Glasgow Law School, who is an expert in the area of marriage law, said:
“In recent years some of the most radical legal reforms have taken place in Scots marriage law. This has been characterised by a shift from institutional rights to individual rights. Religious organisations no longer enjoy any privileged position, with the exception of Church of Scotland ministers who retain separate recognition within the law from other religious and belief group celebrants.

“The 2014 Marriage and Civil Partnership Act highlighted a watershed moment in Scottish public life, and highlighted the declining role of religion in shaping the model of marriage.

“The development of marriage law in Scotland gives a concise overview of the developing treatment of religion in Scots Law generally. Today Scotland remains the only part of the UK where Humanists can perform legal weddings.”

The report provides a thorough analysis of the relationship between religion and Scottish statute law, historically and into the present day. It highlights a number of issues, including:

General audit:

Following 1812, the crime of blasphemy in Scotland was a Common Law offence. This Common Law offence has never passed into desuetude (see pp.201)
Religious communities are not obliged to pay the minimum wage (see pp.280)

Education:

Appointment of ‘religious representatives’ on local authority education committees (see pp.172)
The 11 members of the General Teaching Council of Scotland are required to include one member from Church of Scotland and one from the Roman Catholic Church (see pp.174)
Denominational schools ‘parent councils and combined parent councils’ are required to co-opt one representative of the denominational body (see pp.174)
The decisions of previous Secretaries of State may have led to the development of quasi-denominational schools in Scotland (see pp.161)

On the Church of Scotland:

The position of the Church of Scotland in relation to the state is complex and in some way ambiguous, and the report exposes the issues and the diverse arguments about it (see chapter 2)
Kirk Sessions used to be very active in pursuing the ‘sexual misdemeanours’ of local citizen between 1650s-1850s (see pp.21)
Local Church of Scotland Ministers used to enforce rules requiring the payment of local taxes to fund the maintenance and repair of Manses and Glebes (see pp.22)
There was a significant degree of change in the relationship between the Church of Scotland and the Parliament of Scotland following the Glorious Revolution and the rise of Presbyterianism. These developments can be understood as a form of disestablishment around the latter part of the C17th (see pp.34)
A ‘mark’ of Establishment of the Church of Scotland has been its particular recognition by the Monarchy of the UK. This is shown in the appointment of an Ecclesiastical Household to the Monarch in Scotland (see pp.73)

Notes to editors:
For further comment please contact:
Gary McLelland 07813060713 or gary@humanism.scot
Photography: http://bit.ly/1RpCPJs
Broadcast-quality audio: http://bit.ly/1Ovaddf

Gordon MacRae – HSS Chief Executive

Prof. Callum Brown – University of Glasgow

Prof. Jane Mair – University of Glasgow

About HSS:
Humanist Society Scotland seeks to represent the views of people in Scotland who wish to lead ethical and fulfilling lives guided by reason, empathy and compassion. We provide a range of non-religious ceremonies and campaign for a secular state. HSS has over 14,000 members across Scotland.