While the Church of Scotland is not “Established” in the manner of the Church of England, it nevertheless holds a special constitutional position. The Protestant Religion and Presbyterian Church Act 1707 of the Scottish Parliament, still in force, establishes the Church’s worship, discipline, and government to continue unaltered for future generations, while Article III of the Articles Declaratory annexed to the Church of Scotland Act 1921 describes it as “a national Church representative of the Christian Faith of the Scottish people.” Under the Union with Scotland Act 1706 and the Union with England Act 1707, which are both still in force, on his or her Accession, the Sovereign must swear to uphold the Church’s security — a tradition upheld by King Charles III at the Accession Council in 2022.

One element of this special status is the Monarch’s appointment of a Lord High Commissioner to the Kirk’s General Assembly. The Lord High Commissioner does not participate in debates but observes the proceedings and delivers speeches at the opening and closing of the Assembly. Traditionally, the appointee may be of any faith or none – except for Roman Catholics, who are barred from the office by the Roman Catholic Relief Act 1829.

In December 2024, it was announced that Lady Elish Angiolini LT, currently Lord Clerk Register, who had been successively Solicitor General and Lord Advocate, was to be Lord High Commissioner in 2025. But she is a practising Roman Catholic, and her appointment conflicted with the terms of the 1829 Act.

The Church of Scotland (Lord High Commissioner) Bill was introduced in February 2025 to resolve the matter by removing the legal bar on Roman Catholics holding the office. Citing the 2022 St Margaret Declaration — a statement of friendship between the Church of Scotland and the Catholic Church in Scotland — the Government framed the move as a gesture of unity. During the Commons second reading debate, Brendan O’Hara MP suggested the Government had overlooked the 1829 restriction until after the appointment, and Lord Kirkhope echoed that view in the Lords. Cabinet Office Minister Douglas Alexander hinted at the rushed nature of the legislation, citing the need for Lady Elish to assume the role in time for the General Assembly in May. The Bill was passed very quickly and received Royal Assent on 3 April 2025: the text of the Act is here.

The debate also opened wider questions about outdated religious restrictions. In the Lords, the Earl of Dundee suggested reviewing broader aspects of the Roman Catholic Relief Act 1829 and the Jews Relief Act 1858, particularly in light of the Equality Act 2010 and the ECHR.

In conclusion, the Act appears to have been reactive rather than the product of deliberate policy: accident rather than design. When asked about the initial vetting of Lady Elish’s eligibility, Douglas Alexander appeared to concede that the legal restriction had only come to light after her appointment had been announced:

“Following the announcement in December of last year that Lady Elish Angiolini was to be appointed as Lord High Commissioner to the General Assembly of the Church of Scotland, it became clear that there is a legal restriction against a Catholic person being appointed to the role…”

Oops!

A fuller, more formal version of this post will be published in the Michaelmas issue of Law & Justice.