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1 RELIGION IN SCOTS LAW: THE REPORT OF AN AUDIT AT THE UNIVERSITY OF GLASGOW Sponsored by Humanist Society Scotland Written by Callum G Brown, Thomas Green and Jane Mair Published by Humanist Society Scotland Edinburgh 2016 2 This Report has been written by Callum G Brown, Thomas Green and Jane Mair. Commissioned by Humanist Society Scotland, it is published in the public domain for general consultation and reference. It may be freely copied, distributed and quoted on condition that its authorship and sponsoring organisation are acknowledged, that the DOI is cited, and that citation uses the format given below. In the case of any queries, these should be directed to either Callum Brown on [email protected] or Jane Mair on [email protected]. Format for citation: Callum G Brown, Thomas Green and Jane Mair, Religion in Scots Law: The Report of an Audit at the University of Glasgow: Sponsored by Humanist Society Scotland (Edinburgh, HSS, 2016) 3 CONTENTS Humanist Society Scotland: Chief Executive’s Preface 11 About Humanist Society Scotland 12 Author’s Preface 13 About the authors 15 PART I: The context 16 Chapter 1: Introduction 17 1.1 Where might we find religion in law? 17 1.2 The Scottish background: the historical origins of religion in 19 Scots law 1.3 The impact of secularisation 22 1.4 What this project has done 24 1.5 The structure of this report 25 PART II: Three case studies 28 Chapter 2: The Church of Scotland 29 2.1 How do we identify an Established Church in Scotland? 30 2.1.1 The nature of establishment 30 2.1.2 The peculiar case of Scotland 32 2.2 The establishment legacy from sixteenth and 34 seventeenth-century Scotland 2.3 Opinions on the existence of the Established Church of 37 Scotland 2.3.1 Before the 1920s 41 2.3.2 The 1921 Declaratory Act 44 2.3.3 Other modern facets of establishment 47 2.3.4 Complexity of Church of Scotland status 49 4 2.4 Historical Statutes and the Church of Scotland: 50 The Place of Scottish Protestantism in the constituting documents of the United Kingdom of Great Britain 2.5 Repeal and desuetude (or disuse) of historical Scottish Acts 61 2.5.1 Desuetude 61 2.5.2 Oaths 62 2.5.3 Repeal of aspects of the Union Agreement 65 2.5.4 The status of Historical Scottish Acts 67 2.6 Presbyterian re-union and the status of the present-day 69 Church of Scotland 2.6.1 Property of the Church of Scotland 71 2.6.2 Royal Recognition of the present day Church 73 of Scotland 2.6.3 Historical legislation 75 2.6.4 Church government 76 2.6.5 Church courts 81 2.6.6 The Church of Scotland and the four ancient 91 Scottish universities 2.6.7 The Church of Scotland Scottish state-funded 93 schools 2.6.8 The Church of Scotland and Scottish prisons 94 2.6.9 The Church of Scotland and the solemnisation 95 of Regular Marriage 2.7 Conclusions 95 Chapter 3 Marriage 98 3.1 Introduction 98 3.2 Religious to civil 100 3.2.1 Jurisdiction in matrimonial disputes 100 3.2.2 Law making 101 3.2.3 Legal definitions of marriage 104 3.3 Solemnisation of marriage: historical contexts and 106 twentieth century developments 5 3.3.1 Regular and irregular marriage 107 3.3.2 The Marriage (Scotland) Act 1939: civil registration 113 3.3.3 The Marriage (Scotland) Act 1977: religious or civil 115 marriage 3.4 Twenty-first century developments 117 3.4.1 Religious or belief ceremonies 117 3.4.2 Civil partnership ceremonies 118 3.4.3 Same sex marriage 120 3.4.4 Legal protections 123 3.5 Ceremony and consent: a doubt? 124 3.5.1 Form and substance 125 3.5.2 “Husband and wife” or “marriage”? 130 3.6 Conclusions 133 Chapter 4 Education 137 4.1 Introduction 138 4.1.1 The legal foundations 138 4.1.2 Structure of the chapter 140 4.2 Non-denominational schools 140 4.2.1 The Education (Scotland) Acts 1872 and 1980 140 4.2.2 Religious Observance in Non-denominational 144 Schools 4.2.3 Religious and Moral Education in 148 Non-denominational Schools 4.3 Denominational public schools 150 4.3.1 The Education (Scotland) Acts 1918 and 1980 150 4.3.2 Admissions Policies for Denominational Schools 163 4.3.3 Religious Education in Denominational Schools 167 4.4 Rights to education 169 4.4.1 The European Convention on Human Rights (ECHR) 169 4.4.2 The UN Convention on the Rights of the Child 170 (UNCRC) 4.4.3 Domestic law 171 6 4.5 Governance and representation on education bodies 173 4.5.1 Representatives of churches and denominational 173 bodies on education committees appointed by education authorities 4.5.2 The General Teaching Council for Scotland 175 4.5.3 Parent Councils and Combined Parent Councils 176 4.6 Teacher training and Universities 176 4.6.1 University teachers of Christian theology and divinity 176 4.6.2 Catholic Teacher Training in Scotland 177 4.7 Chaplains 177 4.7.1 Denominational schools 178 4.7.2 Non-denominational schools 178 4.7.3 Some examples of policy 180 4.7 Conclusions 187 PART III: A general audit 192 Chapter 5 Armed services law 193 5.1 Introduction 193 5.2 Equality 193 5.3 Religiously aggravated offences 195 5.4 Accommodating religion 195 5.5 Oaths 197 Chapter 6 Blasphemy 201 6.1 Overview of blasphemy 201 6.2 Historical development 201 6.3 The most recent cases 202 6.4 Conclusions 205 Chapter 7 Broadcasting and Communications 206 7.1 Introduction 206 7.2 Broadcasting licences 206 7 7.3 Religious programmes 208 7.4 Protection against harm etc 209 7.5 Stirring up religious hatred 211 7.6 Conclusions 213 Chapter 8 Charities law 215 8.1 Introduction 215 8.2 Charity test 215 8.3 A religious charity 219 8.4 OSCR 221 Chapter 9 Conscience and conscientious objection 223 9.1 Freedom of conscience 223 9.2 Conscientious objection 224 9.2.1 Education 224 9.2.2 Military service 224 9.2.3 Medical law 224 9.2.4 Jobseekers 229 9.3 Conclusions 230 Chapter 10 Criminal law and prisons 231 10.1 Introduction 231 10.2 Religious offences 232 10.3 Regulation of prisons 238 10.4 Religion and punishment 244 10.5 Witness protection 245 10.6 Jury service 247 10.7 Conclusions 247 Chapter 11 Equality law 249 11.1 Introduction 249 11.2 European context 249 8 11.3 Domestic equality law: general framework 251 11.3.1 Prohibited conduct 252 11.3.2 Protected characteristic 254 11.3.3 Scope of protection 255 11.3.4 Exemptions 257 11.4 Domestic equality law: specific contexts 268 11. 5 Accommodation and exemption 272 11.6 Conclusion 282 Chapter 12 Family law 284 12.1 Introduction 284 12.2 Divorce 284 12.3 Social work, care and adoption 286 12.4 Conclusions 295 Chapter 13 Immigration, Asylum, Refugees and Extradition 296 13.1 Introduction 296 13.2 Asylum claims 297 13.3 Refugee status 301 13.4 Transit visas 302 13.5 Detention centres 303 13.6 Extradition 305 13.7 Conclusions 306 Chapter 14 Oaths 307 14.1 Introduction 307 14.2 Oaths of allegiance 307 14.3 Solemn affirmation 309 14.4 Lack of religious belief 309 14.5 Armed services 310 14.6 Conscientious objection 313 14.7 Conclusions 313 9 Chapter 15 Religion or belief: statutory terms and definitions 314 15.1 Introduction 314 15.2 Individual rights and protections 315 15.3 Groups, organisations and bodies 319 15.4 Behaviour and beliefs 320 15.5 Conclusions 321 Chapter 16 Sabbath in Scots Law 323 16.1 Introduction 323 16.2 The reach of desuetude: Sunday commerce 324 16.3 Sunday church attendance 329 16.4 A “perpetuall commandment”? 329 16.5 Miscellaneous statutory provisions 331 16.5.1 Employment on the Sabbath 331 16.5.2 Sabbatarianism in local authority policy 331 16.6 Conclusions 334 Chapter 17 Tax law 336 17.1 Introduction 336 17.2 Income tax 336 17.3 Corporation tax 340 17.4 Council tax 344 17.5 Conclusions 346 Chapter 18 Miscellaneous 347 Part IV 350 Chapter 19 Conclusion 350 19.1 Current state of Scots law 350 19.2 Direction of change 354 10 Humanist Society Scotland Chief Executive’s Preface It is an honour to be able to give a preface to this landmark report. Humanist Society Scotland commissioned this research in November 2014. 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. Our history, our institutions and our society have been shaped by religious and non- religious believers over centuries. At a time when Scotland remains in deep conversation about where we are going, it is necessary that we first understand where we are now and how we got here. From the outset, the scope that HSS set for this project was that it should be a wide audit of the ways in which religious individuals or organisations were specifically protected or privileged in Scots Law. Another key objective of this project was to help develop the sophistication of the ongoing debate about the role of religion in public life.
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