CHURCH, LAW AND THE INDIVIDUAL IN SCOTLAND FRANCIS LYALL 1. INTRODUCTION To begin with two elementary but basic points: first, although Scotland is part of the United Kingdom of Great Britain and Northern Ireland, for many purposes it has a separate and distinct legal system within that Union1. Second, the relationship between Church and State is another very clear instance of its difference with England, the Church of Scotland being Presbyterian, not episcopal, in its form of government, and Scots Law showing numerous features traceable to a more thorough Reformation than that accomplished south of the Border2. Questions of church and state, and of religion and the Law, have continued to cause discussion in Scotland in the Twentieth Century, but it has to be said that such matters appear not to be as important to the gen- erality of the population as they once were3. However, this development is * This article is adapted from a chapter, ‘Church, Law and the Individual in the Twentieth Century’, to be published in MACKAY, M. and MACLEAN, C., (ed.), Institutions of Scotland – The Church, Vol. 12 of Scottish Life and Society: A compendium of Scottish ethnology, 13 Vols. (Fenton A., General Editor), East Linton, U.K., Tuckwell Press, in association with the European Ethnological Research Centre and the National Museums of Scotland, forthcoming. The law is stated as at 2001. 1 See Lyall, F., An Introduction to British Law, 2nd ed., Baden-Baden, Nomos, 2002. 2 LYALL, F., Of Presbyters and Kings: Church and State in the Law of Scotland, Aberdeen: Aberdeen U.P., 1980, is based on my Ph.D. thesis of 1972, ‘Church and State in Scotland’, (on file, University of Aberdeen), and takes matters down to its date. 3 I write as an academic lawyer rather than as a historian or an ecclesiastic. See generally, LYALL, F., n. 2 above; cf. various authors, Stair Memorial Encyclopaedia of the Laws of Scotland, Edinburgh, Butterworths, Vol. 3, ‘Churches and Other Religious Bodies’, 701- 818, paras 1701-1687, and Vol. 5, ‘Constitutional Law: Church and State’, 357 -372, paras 679-705. For ecclesiastical perspectives see: BURLEIGH, J.H.S., A Church History of Scotland, Oxford: Oxford U.P., 1960 and 1970; FLEMING, J.R., A History of the Church in Scotland 1843-1874, Edin- burgh, T&T Clark, 1927, and his A History of the Church in Scotland 1875-1929, Edinburgh: Edinburgh U.P. 1933; HENDERSON, G.D., The Burning Bush, Edinburgh, St Andrew Press, 1957; DRUMMOND, A.L. and BULLOCH, J., The Scottish Church 1688-1843, Edinburgh: St Andrew Press, 1973, The Church in Victorian Scotland, 1843-1874, Edinburgh: St Andrew Press, 1975, and The Church in Late Victorian Scotland, 1874-1900, Edinburgh, St Andrew Press, 1978; CHEYNE, A.C., The Transforming of the Kirk, Edinburgh, St Andrew Press, 1983. 176 F. LYALL not confined to matters religious. All forms of authority, social structure and tradition have been increasingly questioned, not to say, disparaged. While criticism is always healthy, when directed to the improvement of obvious defects, the urge to pull down when unaccompanied by con- structive proposals for building, may be dangerous for society as a whole. That as I write, the Scottish Parliament, established under the Scotland Act 1998, c.46, sits, albeit temporarily, in the remodelled Assembly Hall of the Church of Scotland on The Mound in Edinburgh, is a token, not to say a consequence, of the apparent decline of the role of matters religious in the life of Scotland from that of previous centuries4. Matters religious appear to carry less weight amongst the populace in the Twentieth and Twenty-first centuries than they did in the Sixteenth and Seventeenth centuries. As a member of the Church of Scotland I regret that decline, but can see why it has happened. Secularisation has both occurred and appears to be continuing. Simultaneously there has been a growth of other religions and religious beliefs and practices, both ancient and modern. Not only has there been a natural change or development in matters cultural, there has also been an alteration in the basic premises or the shared religious geology of Scottish society. Matters which would formerly have been taken as settled by theological perceptions have been opened for discussion and deliberation. Most modern law is sought to be justified on a basis other than theology or deduction from theological propositions. On occasion the result is the same as the Reformers would have deemed right. In other matters their views, for example as to sexual morality, is challenged on the ground of ‘human rights’. This has had considerable effects in law, in practice, and in what we may term the broad cultural environment. In his Preface to The General Assemblies of the Scotland 1560-1600, Duncan Shaw says that his book ‘traces the rise of what was once the most influential national church council in Europe..5.’. That was written nigh on forty years ago: its elegiac element becomes almost painful when one contemplates the effect of those decades. Successive statistical analyses 4 LYALL, F., ‘The Impact of the Reformation in relation to Church, State and the Individual’, to be published in MACKAY, M. and MACLEAN C., (ed), Institutions of Scotland – The Church, Vol. 12 of Scottish Life and Society: A compendium of Scottish ethnology, FENTON A., General Editor, see n. 1, and materials cited in nn. 3, 5 and 6. 5 SHAW, D. The General Assemblies of the Church of Scotland 1560-1600, Edinburgh, St Andrew Press, 1964, v. The general tenor of Buchan J. and Adam Smith, G., The Kirk in Scotland, 1560-1929, (London, 1930) written to mark the union of 1929 (as to which see below) has a dark hue as it notes the Church’s lessening influence and status. CHURCH, LAW AND THE INDIVIDUAL IN SCOTLAND 177 show the decline of all the former major institutional churches, although it may also be noted that certain of the smaller denominations such as the Baptists, are less affected, and that within the major denominations congregations of traditional orthodox belief tend to resist the general trend6. On the other hand, the diminution of the position of the churches in general, and particularly that of the Church of Scotland from its former primary position, has been accompanied by a relatively peace- ful transition within Scotland to a pluralist society. That peace is to be welcomed, provided that it does permit the denominations to retain their individualities, and their ability to disseminate their views as to true the- ology, even if (or when) that conflicts with the views of other theologies. In addition, questions of the Church, the individual and the law in Scotland have been affected by the constitutional arrangements of the United Kingdom. Usually this has meant that Scottish affairs have ranked low on the agenda of central government and the Westminster legisla- ture. Subsequent to the Union of the Parliaments, while, as noted below, the Union arrangements protected the Church of Scotland and the Scottish legal system, Scotland did not again have its own legislature until the setting up of the Scottish Parliament in 1999 under the Scotland Act 1998 (c.46). Further, although a Secretary of State for Scotland did exist after the 1707 Union of the Parliaments until 1746, thereafter Scottish responsibilities were allocated among various ministers, notably the Home Secretary. But though that was the constitutional position, in practice Scottish affairs were largely run informally by the Lord Advocate, normally the leader of the government’s party in Scotland7, and Scottish affairs were not of great interest to the rest of 6 HIGHET, J. The Churches in Scotland Today, Glasgow, Jackson Son and Co., 1950; J. HIGHET, The Scottish Churches London, Skeffington, 1960; WOLFE, J.N. and PICKFORD, M., The Church of Scotland: An Economic Survey, London, Geoffrey Chapman, 1980. See also Prospects for the Eighties, London, Bible Society, 1980, BRIERLEY, P. and MACDONALD, F., Prospects for Scotland, Edinburgh, National Bible Society of Scotland, 1985 and their Prospects for Scotland 2000, Edinburgh, National Bible Society, 1995; Church of Scotland Board of Social Responsibility, Lifestyle Survey, Edinburgh, Church of Scotland, 1987; BRUCE, S. and GLENDINNING, A., ‘Shock Report! Scotland is no longer a Christian Country’, Life & Work, June 2002, 12-15 (from Scottish Social Attitudes survey, 2001); GLENDINNING, A., ‘Religion And the Supernatural’ ch. 6 of BROMLEY, C., CURTICE, J., HINDS, K. and PARK, A. (ed), Devolution: Scottish Answers to Scottish Questions, Edinburgh: Edinburgh U.P., 2003. Cf. for the UK, CURRIE, R., et al., Churches and Church-Goers: Patterns of Church Growth in the British Isles since 1700, Oxford, Oxford U.P. 1977. 7 Henry Dundas, First Viscount Melville, (1741-1811) (‘the Uncrowned King of Scotland’) and his son Robert (1771-1851) were significant figures: FRY, M., The Dundas Despotism, Edinburgh, Edinburgh U.P., 1992. 178 F. LYALL Britain although the controversy that eventuated in the Disruption (below) is an exception to that. In 1885 the Scottish Office was set up with a Secretary for Scotland, and to him over the years were transferred many responsibilities. The office of Secretary of State for Scotland was created in 1926, with Cabinet status. Until devolution in 1999 the Scottish Secretary and the Scottish Office did function to some extent as if it were a Scottish government, having within the Office responsi- bilities which in England were committed to separate Departments. While that meant that on the one hand there could be a greater sensitivity to Scottish opinion, on the other hand in practice legislative action could be long delayed. To these elements of political organisation may be added the suspicion that at least in the past those accustomed to the English scene, moulded as it is by the episcopacy of its established Church, have had difficulty comprehending Presbyterian traditions and viewpoints.