The Church in Scotland and the Treaty of Union

A paper by Catriona Walker:

Has Westminster fulfilled its obligations under the Treaty of Union in relation to the church in Scotland? What are these obligations and are they relevant today?

The perception in some protestant circles is that the Treaty of Union of 1707 was a good thing in that it secured, not only the protestant line of succession to the thrones of Scotland and England, freedom of trade and military consolidation (the main objectives for the English Parliament) but also, to protect the distinctive institutions of Scotland, ongoing protection for the Scottish legal system, (both courts and the body of private law) the Scottish church system of Presbyterian government and the closely connected Scottish education system (since the schools belonged to the church).

The petitioners in the recent case – William Philip and others Judicial Review against the Scottish Government 2021,23rd March, – argued (at paras 11,12 and 13)[1] that the kirk had been a self governing authority since 1592, was protected under the 1706 Act, had been excepted from the compass of the Treaty of Union, and that Westminster could not delegate to the Holyrood Parliament the power to legislate in respect of church closure as part of coronavirus regulations because the power was not theirs to delegate. The only piece of post-union legislation which was cited in the case was the 1921 Church of Scotland Declaratory Act (which was introduced at the request of the Church of Scotland and in anticipation of the widespread takeover of several protestant denominations in 1929.)
The reality of post Union legislation is more complicated and did not form part of the evidence (perhaps not being seen as germane to the crave of the petition).  Within a few short years of the Union, for example, Westminster had passed two significant items of legislation, The Scottish Episcopalians Act and the Church Patronage (Scotland) Act both of 1711.  The Episcopalians Act seems innocuous enough now, allowing Scottish Episcopalians the freedom to worship using the liturgy of the Church of England, (hence the nickname ‘the English kirk’ which persists to this day with reference to the Scottish Episcopal Church). The Patronage Act had more sinister repercussions, allowing landlords to impose their choice of minister on the people of the kirk, which became known post-union as the Church of Scotland (to distinguish it from the Church of England).   This must have seemed a painful insult to people whose parents and grandparents had fought through the 17th century against the rule of Bishops, only to find that the power to appoint a minister had now been vested by Westminster in the landlords who understood nothing of their faith. When the landlords wished to clear the land of its people to make way first for the Cheviot and then the Stag, these ministers in the pay of the landlords pressed the people to comply with the eviction notices, as a matter of spiritual as well as civil duty. The writings of Donald Macleod (Gloomy Memories) and Iain Crichton Smith (Consider the lilies) bear witness to that time.  Henry Dundas and The Duke of Sutherland still look down on the people and it is important that their role should not be forgotten, but better understood.  The Highland Clearances are a blight on the history of Scotland, an almost complete genocide and the attempted eradication of an ancient language and culture.  The Forfeiture of estates after the Jacobite rebellions compounded the injury and the forfeited land, having been sold on via such enterprises as the York Buildings Company, remains in a derelict state, devoid of its people. [2] The legality of this process of land grab would make an interesting study. The Patronage Act was not repealed until 1874, despite a memorial by the Church of Scotland in 1735[3] seeking a repeal of the Act because of the damage being done to the church and the people.  The sense of spiritual disenfranchisement was so strong in the 18th and 19th Century that it gave rise to the Disruption in 1834, and the formation of the Free Church.

We may conclude therefore that Westminster did not actually have power to legislate in spiritual matters over the Scottish church. The fact that it did so with such devastating consequences is a matter of continuing concern in the current constitutional debate. Other pieces of legislation requiring scrutiny under the terms of the Treaty of Union are yet to be highlighted.

PS-the following argument could be developed.

As Mairead McGuiness recently put it to Andrew Marr, in relation to the Brexit treaty, when one party breaks the terms of an international treaty, the other party has no option but to seek a remedy in the courts. That may eventually be part of the path to independence. A referendum may test the will of the people- and provide a mandate for legislation.  With or without a referendum, another question is whether Scotland (represented by our Westminster MPs) has a stateable case that her MPs are entitled to resile from the Treaty of Union on the grounds that Westminster with its majority of English MPs has been repeatedly and fundamentally in breach of the terms.

CW 12.05.21

[1] CC-Resource-Misc-Church-Lockdown-Scotland-Petition-210128

[2] A PHD thesis on the forfeited estates papers.