The General Assembly of the Church of Scotland begins on Saturday 18 May. This decides the church’s laws but also has deliberative and judicial functions.

This Insight looks at the constitutional status of the Church of Scotland – also known as “the Kirk” – and specifically at a long-running debate about whether it is “established” like the Church of England.

What is establishment?

The term “established” is ambiguous. The academic lawyer David Walker defined it in the Oxford Companion to law (1980) as a “church legally recognised as the official Church of the state or nation and having a special position in law”.

In both the English and Scottish cases, establishment dates from an era in which church and state were virtually indistinguishable. During the 16th century, each church was given a clearer statutory basis. In England, the Acts of Supremacy of 1534 and 1558 declared, respectively, the monarch to be “supreme head” and “Supreme Governor” of the Church of England.

In Scotland, the Papal Jurisdiction Act 1560 declared that the Pope had no jurisdiction in Scotland while the Church Jurisdiction Act 1567 confirmed the Church of Scotland as “the only trew and haly Kirk of Jesus Christ within this realme”.

Shortly before “Great Britain” was formed in 1707, the Parliament of Scotland passed the Protestant Religion and Presbyterian Church Act 1707. This sought to protect the status of the Church of Scotland and included an oath to be taken by future monarchs of Great Britain. At his Accession Council on 10 September 2022, King Charles III swore he would “inviolably maintain and preserve the Settlement of the true Protestant Religion as established by the Laws made in Scotland”.

The legal academic Colin Munro has called the 1707 Act and the legislation which united England and Scotland “the second foundation of the Church of Scotland and the re-establishment of the Church”.

Prior to 1871, every part of the UK had an established church: Anglican in England, Wales and Ireland and Presbyterian in Scotland. The Irish Church Act 1869 disestablished the church in Ireland, and the Welsh Church Act 1914 disestablished it in Wales (those Acts took effect in 1871 and 1920 respectively).

Why is there a debate about establishment?

The debate as to whether the Church of Scotland is established or not has its origins in an Act of the UK Parliament from 1921.

During the early 20th century, the Church of Scotland attempted to facilitate reunion with the Free Church of Scotland (which had split during the Disruption of 1843). The Free Church objected to the church/state relationship enjoyed by the Kirk, so the Church of Scotland drafted “Declaratory Articles” in 1919 which redefined that relationship. Some viewed these as a restatement of establishment, others as a disestablishing measure. As the Labour MP Alexander Shaw observed during the bill’s second reading:

My friends of the Established Church are told this Bill is to establish the Church of Scotland more strongly than ever […] The people who hold the old United Presbyterian view, or the Free Church view […] are told that this Bill is really equivalent to disestablishing the Church of Scotland […] It is unfortunate that a Bill which is intended to promote union should depend for its support upon exhibitions of casuistry which would have been a credit to the Middle Ages.

The Church of Scotland Act 1921 does not use the term “established”. Rather Article III of the Declaratory Articles (contained in the Schedule to the Act) describe the Kirk as the “national Church representative of the Christian Faith of the Scottish people”.

Nevertheless, the UK Parliament had recognised the Church of Scotland’s “spiritual independence”, what the academic Ian Bradley has called “a unique definition of church establishment”. The former Lord Advocate and Labour MP Ronald King Murray agreed that while the 1921 Act was “a very real mark of freedom”, it was “not at all a mark of disestablishment”. Colin Munro viewed it as “an interesting model for a ‘lighter’ form of establishment”.

The Church of Scotland today and the role of the monarch

As the Coronation Roll website observes, the King is an ordinary member of the Church of Scotland rather than its head:

The Church of Scotland is the national church in Scotland. It has a Presbyterian system of church government and is entirely self-governing, requiring no Parliamentary oversight. The Church of Scotland Act 1921 guaranteed its spiritual independence. While the Church in Scotland is also an established church, the Sovereign is an ordinary member, rather than being the Supreme Governor as they are in the Church of England.

The King does, however, send a representative to attend and address the General Assembly. The representative is symbolically seated in the gallery apart from the main hall. Earlier this year, the King approved the appointment of the Duke of Edinburgh (Prince Edward) as this year’s Lord High Commissioner to the General Assembly. This appointment is made on the advice of the Prime Minister. Under the Lord High Commissioner (Church of Scotland) Act 1974, those acting in this capacity can be paid an allowance.

The Moderator of the General Assembly of the Church of Scotland – a position which changes every year – makes an annual visit to the UK Parliament. During their visit they preach at the Chapel of St Mary Undercroft in the Palace of Westminster and meet with the Prime Minister, Secretary of State for Scotland and other party leaders, Scottish MPs and parliamentarians. In 1953 and 2023, the Moderator was the only non-Anglican figure to have a speaking role at the coronations of Queen Elizabeth II and Charles III.

The Kirk’s special status is also recognised in several Acts of Parliament. Under section 8 of the Marriage (Scotland) Act 1977, only Church of Scotland ministers are automatically entitled to solemnise a religious marriage in Scotland. Under section 3 of the Prisons (Scotland) Act 1989, Church of Scotland ministers are appointed chaplains to each Scottish prison. Under section 31 of the Local Government etc. (Scotland) Act 1994 representatives of the Church of Scotland also sit on education authority committees.

About the author: Dr David Torrance is the church and state specialist at the Commons Library.

Photo by: (© By TTstudio – stock.adobe.com).

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