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Does Scotland Have an Established Church?

Published online by Cambridge University Press:  31 July 2008

C. R. Munro
C. R. Munro
Affiliation:
Professor of Constitutional Law in theUniversity of Edinburgh
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Whatever may be thought about the question of the possible disestablishment of the Church of England, there is one premise which the protagonists do not dispute. Nobody doubts that the Church of England is established. Well informed persons also know that, as one aspect of struggling with ‘the Irish question’ in the nineteenth century, the union of the Churches of England and Ireland was dissolved, and the Church disestablished, so far as the island of Ireland was concerned, by the Irish Church Act 1869. Besides, there was disestablishment for the territory of Wales and Monmouthshire by the Welsh Church Act 1914, an Act which is something of a constitutional curiosity: as there is not a separate Welsh legal system, it is very rare for legislation to distinguish between English and Welsh territory, as that Act does.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 4 , Issue 20 , January 1997 , pp. 639 - 645
Copyright
Copyright © Ecclesiastical Law Society 1997

References

1 Actually the Reverend Andrew Morton, who is also the Associate Director of the Centre for Theology and Public Issues at the University of Edinburgh.

2 By contrast, in the United States the First Amendment to the Constitution provides that ‘Congress shall make no law respecting an establishment of religion …’. However, the case law on the clause is not especially helpful in determing the core of meaning, as litigation has typically involved peripheral issues, in the light of the extended interpretation given to the clause.

3 Halsbury's Laws of England (4th ed.), vol. 14, ‘Ecclesiastical Law’, para. 334.

4 The Laws of Scotland: Stair Memorial Encyclopaedia, vol. 5, Constitutional Law, section 6. ‘Church and State’.Google Scholar

5 Church of England, Archbishops' Commission, Church and State (1970), p. 2.Google Scholar

6 Davies, Richard, ‘Church and State’, (1976) 7 Cambrian Law Review II.Google Scholar

7 Marshall v. Graham [1907] 1 KB 112, per Phillimore, J. at p. 126.

8 The Oxford Companion to Law (1980).

9 For a more detailed account, to which I am indebted in the sections which follow, see Lyall, Francis, Of Presbyters and Kings (1980)Google Scholar. See also Burleigh, J. H. S.. A Church History of Scotland (1960).Google Scholar

10 The Parliament had not been summoned by the Crown, nor did Queen Mary assent to the laws.

11 See generally Munro, C. R., ‘The Union of 1707 and the British Constitution’ in Hodge, Patrick S. (ed.). Scotland and the Union (1994).Google Scholar

12 The Scottish Parliament passed the Union with England Act 1707, then the English Parliament passed the Union with Scotland Act 1706. (The apparently inconsistent chronology is explained by the fact that Scotland had adopted the Gregorian calendar, while England did not do so until 1752, so that the year 1707 did not commence there until 25 March.)

13 An Introduction to the Study of the Law of the Constitution (10th ed., 1967), p. 65.Google Scholar

14 By the Universities (Scotland) Act 1853 and the Parochial and Burgh Schoolmasters (Scotland) Act 1861. More generally, see C. R. Munro, op. cit., note 11 above.

15 Earl of Kinnoull and Rev. R. Young v. Presbytery of Auchterarder(1838) 16S. 661: (1839) McL & Rob. 220.

16 Bannatyne v Lord Overtoun (1902) 4 F 1083: [1904] AC 515.

17 Ballantyne v Presbytery of Wigtown, (1936) SC 625. per Lord Justice-Clerk Aitchison at p. 654.

18 Article IV. The efficacy of these provisions has recently been strongly affirmed, by the opinion of Lord Osborne in Logan v Presbytery of Dumbarton 1995 SLT 1228. In this case an attempt by a minister of the Church of Scotland to challenge by way of a judicial review petition his suspension, imposed by the Presbytery concerned, failed. The judge held that, as it was a matter of discipline, the civil courts had effectively been deprived of jurisdiction by the terms of the 1921 Act and the Church courts had exclusive jurisdiction.

19 I am grateful to the Very Reverend James Weatherhead, Principal Clerk of the General Assembly, who helpfully provided me with a full exposition of this view, and should not be taken to agree with my conclusions.

20 On which, see further R. King Murray, ‘The Constitutional Position of the Church of Scotland’, 1958 Public Law 155, although there have been some changes in the law in some matters referred to. The same author, as Lord Murray, has written the section on ‘Church and State’ in the Stair Memorial Encyclopaedia, op. cit., note 4 above.

21 See note 18 above.

22 Marriage (Scotland) Act 1924, s. 18.

23 Conveyancing (Scotland) Act 1924, s. 18.

24 Presbytery of Lewis v. Fraser (1874) 1 R 888, per Lord President Inglis at p. 892. There are dicta to the same effect in the recent case of Logan, Petitioner, note 18 above.

25 William Temple once wrote that: ‘If the Church can win for itself, or the State is willing to bestow upon it, such freedom in spiritual matters as is enjoyed by the Established Presbyterian Church of Scotland, that is probably the best arrangement that can be devised.’ (Christianity and the State (1928), p. 196.)Google Scholar

26 Taylor, T. M., ‘Church and State in Scotland’, 1957 Juridical Review 121.Google Scholar