Scottish independence and the Establishment Principle?

As noted in an earlier roundup, the Free Church of Scotland has released a report by its Communications Committee and four papers from different perspectives which consider the place of Christianity in a post-referendum Scotland, in advance of its General Assembly in Edinburgh:

  • Communications Committee report;
  • Independence paper one by The Revd Dr John Ross, former Moderator and minister at Glenurquhart and Fort Augustus;
  • Independence paper two by The Revd Professor Donald Macleod, lately Principal of the Free Church College;
  • Independence paper three by The Revd Gordon Matheson, minister at Sleat and Strath;
  • Independence paper four by Neil D M MacLeod, solicitor and Session Clerk of St Columba Free Church, Edinburgh.

Mr Matheson and Mr MacLeod write from a pro-independence perspective while Professor Macleod and Dr Ross are pro-Union.

The Establishment Principle

The crux of Dr Ross’s argument is that breaking the Union will mean the abandonment of the Establishment Principle enshrined in the Act of Succession and the Coronation Oath and that that will lead inevitably to Scotland becoming a secular state because

“[t]here is a cultural tension between the United Kingdom with its Christian roots and the modern Scottish Parliament as a bastion of secularism”.

Nor does he accept the veracity of the Scottish Government’s answer to FAQ 590 in Scotland’s Future: Your Guide to an Independent Scotland that “We propose no change to the legal status of any religion or of Scotland’s churches”.

As to possible independence for Scotland my views are not remotely relevant, not least because I do not have a vote in the forthcoming referendum. The Establishment Principle, however, is another matter.

When the founding fathers of the Free Church of Scotland walked out of the General Assembly in 1843 they did so in protest against what they regarded as unwarranted state interference in the internal affairs of the Church over the issue of patronage and the right of a congregation to call the minister of its choice. But although they left the (established) Church of Scotland, they nevertheless maintained that the civil magistrate was under an obligation to maintain the Christian religion. As Thomas Chalmers – the first Moderator of the General Assembly of the new Church – declared at the time:

“Though we quit a vitiated Establishment, we go out on the Establishment principle; we quit a vitiated Establishment, but would rejoice in returning to a pure one. To express it otherwise, we are the advocates for a national recognition and national support of religion – and we are not Voluntaries”.

The Establishment Principle remained a fundamental element of Free Church ecclesiology; and when in the 1890s the Free Church moved towards a union with the United Presbyterian Church (which had always been voluntarist in its ecclesiology) a significant minority objected that to unite with the UPs would be a betrayal of the Establishment Principle. And when the Union was effected in 1900 the minority remained faithful to Chalmers’s original vision of a purified Establishment and refused to enter the union, constituted themselves the “Assembly of the Free Church” – and took the matter to the civil courts in “what would nowadays be described as judicial review proceedings”.[1]

The pursuers averred that they were the true heirs of the Free Church of the Disruption, loyal to its fundamental principles from which the majority had departed. They claimed that by passing the Declaratory Act 1893 in preparation for the union the majority had betrayed the terms of the Westminster Confession generally. Moreover, the union was a repudiation of the Establishment Principle and departed from the specific terms of the Confession as set out in Chapter XXIII: Of the Civil Magistrate. The pursuers further claimed that they were the “real” Free Church and, as such, entitled to its property.

The pursuers lost at first instance and on reclaimer to the Inner House of the Court of Session but won in the House of Lords: see General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515.[2] One of the issues before their Lordships was the Establishment Principle; and one element in the pursuers’ success was that a majority of their Lordships agreed that by uniting with the voluntarist UPs the Free Kirk General Assembly had departed from that Principle.

Whether or not the decision was good law, to vest the property of the entire Free Church in thirty dissentient congregations was clearly untenable in the real world; and the problem was finally resolved by the passing of the Churches (Scotland) Act 1905, which set up a Commission to make an equitable allocation of the property between the continuing Free Church and the United Free Church.[3]

So, historically at least, the Principle is a crucial element in the self-identity of the Free Kirk. But would independence for Scotland threaten it? And is there anything much left of it to threaten?

The Act of Succession and the Coronation Oath

Dr Ross suggests that though it would be perfectly possible for an independent Scotland to legislate “to clarify and safeguard the establishment principle” that will not happen “because of the Scottish Government’s commitment to the most exaggerated form of diversity and equality legislation”. Neil MacLeod is more inclined to take the Government’s assurances at face value.

The Queen is Sovereign of “the United Kingdom of Great Britain and Northern Ireland and other Her Dominions”. In historical terms, however, part of that reality is that she is Queen of Scots (not, it should be noted, Queen of Scotland). The Scottish Government has stated repeatedly that, in the event of a “yes” vote in the referendum, HM would be Head of State in an independent Scotland; and presumably there is no reason why there should not, in future, be a separate Scots Coronation with the Honours of Scotland. The Coronation of the present Queen in 1953 was followed by a progress down Edinburgh’s Royal Mile with the Scots Crown borne by a young Lord James Douglas-Hamilton; and Donald Macleod points out that Charles I and Charles II both had separate Scottish coronations. But it might be argued that there were no separate Coronations in 1952/53 for the Queen of Australia or the Queen of Canada, so why should there be one for a new King of Scots?

Neil MacLeod suggests that in the event of independence, if the new Government were to adopt the constitutional principles outlined in the Model Constitution for Scotland drafted by the Scottish Constitutional Commission,

“… the Sovereign would still be obliged to take the Scottish Coronation Oath of 1689 on Accession, and the role of the Lord High Commissioner attending General Assemblies would continue unchanged. It may be of interest to note that [Stewart] Mechie [in The Office of the Lord High Commissioner (Edinburgh: St Andrew Press 1957) 50] summarises the office of the Lord High Commissioner as being one which “rests only on custom based on the goodwill of the reigning monarch and the government in power”. There is no legislation which creates the office of Lord High Commissioner” [para 20].

The Establishment Principle today

Dr Ross points out that:

“[t]he annual visit to the [Free Church] General Assembly by the Lord High Commissioner is symbolic of the Crown’s recognition of the Free Church’s loyalty to the establishment principle, just as the Assembly’s Loyal and Dutiful Address articulates the Church’s loyalty to the Crown”.

That said, however, the unavoidable question that occurs to an outsider in this debate – even to a sympathetic outsider – is this: what realistic day-today significance, purely historical considerations apart, does the Establishment Principle have for the FC in 2014? Whatever its historical significance, it seems a very strange that a Free Church should regard the establishment of another denomination as a make-or-break issue. Moreover, the theologies of the FC and the Church of Scotland have diverged since the union between the Church of Scotland and the United Free Church in 1929 to the point at which one might reasonably assume (as an outsider) that there was little more likelihood of the modern FC uniting with the modern Kirk than with what is now left of the UFC.

The content of a putative Scottish Constitution remains to be seen; but Neil MacLeod seems to imply that all this is in any case a second-order issue at best, since

“… the age of the Establishment Principle has long passed, and instead today we see the state seeking to interfere with and control greater and greater areas of the life of the church” [para 33].

In that, he seems (perhaps surprisingly) to be not very far from the position of Donald Macleod, who argues that because Christianity is no longer the faith of the majority of Scots and Scottish Christianity is in any case almost equally divided between Protestants of various hues and Roman Catholics, a “Yes” vote will do nothing to reduce the momentum towards secularisation.

As to its modern significance, Gordon Matheson is inclined to adopt Francis Lyall’s assessment of the current meaning of “establishment” in Scotland:

“All that establishment means is that the civil authority recognises the Church’s self-imposed task to bring the ordinances of religion to all Scotland, and looks to the Church on suitable ceremonial occasions”.

Marjory MacLean argued in 2002 that to apply the term to Scotland was simply confusing.[5] In her Chalmers Lectures of 2007 she went further, suggesting that

“… there are building materials of Establishment lying about undestroyed, but none that seriously impinges upon the Church’s legal life except when major constitutional changes are discussed … The fragments of Establishment do not add up to the civil provision of religion that Calvin would have recognised: so in Reformed terms Scotland does not now have Establishment of religion, whatever a less theologically-informed legal view might conclude.[6]

A tentative conclusion

For what it’s worth, my own opinion tends towards the Lyall/MacLean end of the spectrum; but, in any event, I wonder to what degree the Establishment Principle is a live issue for the vast majority of Scots Presbyterians of any of the current multiplicity of denominations. At the opening session of the 2014 General Assembly of the Church of Scotland a message was read from the Queen which included her hope that

“[i]n this important year of referendum, we pray that whatever the outcome, people of faith and people of good will, will work together for the social good of Scotland. We recognise too the important role the Church can play in holding the people of Scotland together, in healing division and safeguarding the interests of the most vulnerable”.

To which there is nothing one can usefully add except, perhaps, “Amen”.

Frank Cranmer

UPDATE

The Free Church General Assembly debated the issue on 20 May: there is a press release here.


[1] Alan F Rodger [Lord Rodger of Earlsferry]: The Courts, the Church and the Constitution: Aspects of the Disruption of 1843 (Edinburgh: Edinburgh UP 2008) 2.

[2] Commonly (and confusingly) referred to as Bannatyne after Lord Low’s judgment at first instance in Bannatyne v The United Free Church of Scotland 1902 4 F 1117. For further discussion of the case as a whole see Frank Cranmer: ‘Christian Doctrine and Judicial Review: The Free Church Case Revisited’ (2002) Ecc LJ.

[3] In turn, when the UFC was reconciled with the Church of Scotland in October 1929, a significant minority within the UFC stayed out of the union as the United Free Church (Continuing) – precisely because it held firmly to voluntarism. The “(Continuing)” bit was dropped in 1934.

[4] F Lyall: ‘Church and State (Legal Questions)’ in Dictionary of Scottish Church History and Theology, (Edinburgh: T&T Clark 1993) 180.

[5] Marjory A MacLean: ‘The Church of Scotland as a National Church’ 149 Law & Justice (2002) 12.

[6] Marjory A MacLean: The Crown Rights of the Redeemer: The Spiritual Freedom of the Church of Scotland (Edinburgh: Saint Andrew Press 2009) 125.

Cite this article as: Frank Cranmer, "Scottish independence and the Establishment Principle?" in Law & Religion UK, 19 May 2014, https://lawandreligionuk.com/2014/05/19/scottish-independence-and-the-establishment-principle/

6 thoughts on “Scottish independence and the Establishment Principle?

  1. Thank you for this very helpful post with links to the materials that have been aired but not sourced in the Highland press this past week. Two recent books on the issue worth being aware of are Donald Smith’s “Freedom and Faith”, St Andrew’s Press (for people relatively new to the debate) and Doug Gay’s “Honey from the Lion”, SCM Press (for those well versed in the academic background). Both build on past theological studies such as William Storrar’s Scottish Identity: a Christian Vision, Ian Bradley’s Believing in Britain and David Fergusson’s Church, State and Civil Society. I am not a part of the Free Church except in the sense of it comprising a persona of the underlying undivided church, but I must say that it is impressive the manner in which the FC seems to be holding a balanced space for debate in this respect and it is helpful to have the constitutional theology laid out.

    • I agree: the Free Church is approaching the issue in an admirably even-handed manner and I learned a lot from the papers for its General Assembly.

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