Thursday, 25 April 2013

Scottish Independence, the Kirk, and the Constitution

The Kirk has its say
on Scotland's Future
Today, the Church of Scotland released a joint report from three of its Committees: the Church and Society Committee, the Committee on Ecumenical Relations, and the Legal Questions Committee. It concerned the constitutional implications of Scottish independence, and had a particular focus on the effect on church-state relations. However, the media seem to have closed-in on one particular recommendation of the report, which related to whether there should be a separate coronation for Scotland's future monarchs in the event that constitutional feature is retained.

I should disclose at this point, that I have a declarable interest in this particular issue. My honours law dissertation this year explored the historical relationship between church and state in Scotland. As a part of that, I addressed some of the connected issues of that relationship to the British constitution and Scottish independence. My father sits on the Legal Questions Committee of the Kirk, and on becoming aware of this report, I asked the joint committee if I may have advanced sight of it. I received the final draft in late February and it proved very useful. I wish to thank in particular Ewan Aitken, the Secretary of the Church and Society Committee, for being so helpful in this regard.

This is an important document for several reasons, and explains why the independence question is a lot more complicated than what is passing for today's political debate. There are several dimensions to this question about how we rule ourselves and how we are governed.

Where we are

Perhaps crucially, it reminds us where we are, constitutionally speaking, in Scotland. We have a (sort-of) established church, protected by the Treaty of Union. Indeed, the protection of Scotland's distinctive "national" Church from that of England is essential to the historical context of the Union, the constitutional framework within which we operate today, and around which devolution has circumnavigated. Though the Church of Scotland and the British state are, for most practical purposes, autonomous entities from one another, there remains a symbolic relationship between them. The Church of Scotland Act, and the "Declaratory Articles" of the Church of Scotland, define mutual duties and spheres of autonomy between them. The monarch must take an oath to protect the Presbyterian Church in Scotland, and does so before the Privy Council after his or her formal coronation ceremony.

The Scottish understanding of Establishment was always different from what we recognise with the Church of England. Our Reformation took a very different path from that pursued by Henry VIII and Elizabeth, whereby there was a relationship of coexistence between church and state, rather than subordination of the Church to the state by the monarch. The Kirk has no ecclesiastical hierarchy; rather a Presbyterian polity, and does not have representation in the House of Lords. Crucially, it was seen to be "spiritually independent", something it values to this day.

The difference in the two church-state relationships is perhaps most poetically articulated by C16th theologian Andrew Melville. He issued a rebuke to King James VI, reminding him:

"Sirrah, ye are God's silly vassal; there are two kings and two kingdoms in Scotland: there is king James, the head of the commonwealth; and there is Christ Jesus, the king of the Church, whose subject James the Sixth is, and of whose kingdom he is not a king, not a lord, not a head, but a member."

Where we're going

Scotland's media have focused on the comments the report has made about the future of the monarchy. The SNP's proposal for independence, surprisingly (and disappointingly) for some, involves the retention of the monarchy, in the form of a King/Queen of Scots, performing a largely ceremonial role as head of state. The precise approach to implementing such a system remains to be clarified. This goes to the heart of what we mean by independence for Scotland and what the implications are for the rest of the United Kingdom.

The remainder of the UK would surely not be the restoration of the Kingdom of England. If we assume that Northern Ireland wishes to remain a part of the Union, we must take into account the fact that it represents the remaining territory of an historically distinct crown (that of the Kingdom of Ireland) which ultimately merged not with the Kingdom of England, but the Kingdom of Great Britain. No doubt there would also be some disquiet from those in Wales, who would contest being lumped in with the English crown even if that were historically true.

What this means is that the monarchies we would have to have after Scottish independence, in order to implement the SNP's model, would either be two completely newly constituted ones, or else we treat the Scottish one as having no continuity with its pre-1707 crown, and the rUK one simply losing territorial application. In either case, it means that the Scottish crown is something new, and whose role we will have to define carefully within the new constitutional framework. A constitution will have difficulty justifying, for example, a renewal of the Royal Prerogative, but it will have to provide alternative rules for how power should be exercised. We will have to reach some sort of arrangement about the line of succession, for instance: do we want to adopt the same rules as rUK? In particular, is there any need for us to retain the ban on Catholics from becoming our head of state, which the UK plans to retain under its latest reforms, even though the monarch may in future marry a Catholic?

These questions are more euphemistically raised within the paper. In particular, the Catholic question is described as a "sensitive ecumenical issue"! The way the Church of Scotland operates has changed significantly, even in the last 30-40 years. It has become far more open to working alongside other denominations, in worship and interaction with wider society. It seems to me that these matters need considered far more carefully than the relatively trivial question about whether there should be two separate coronations after independence. We should also ask whether the Church of Scotland should continue to be treated as a state-recognised denomination, rather than simply one which operates with the status as voluntaries (from Catholics, to Buddhists to other Presbyterians).

The justification for the two coronations was the notion that the monarch's oath to uphold the Presbyterian Kirk should be echoed in some way. This seems to me to be unnecessary, even if you were to keep the monarchy and an 'established' Church. The only reason that the monarch had such an oath in the first place following the Union with England, was to protect it against being turned into an Episcopalian or Anglican Church. There is no realistic prospect of the state interfering in the governance of the Church of Scotland in the 21st century, let alone a desire to impose a religion on the Scottish people at large.

Three Important Lessons

All this being said, I think there are three lessons we need to draw from this report and the broader issues of the Church of Scotland's relationship with the state, which matter considerably to the wider independence debate:

1. The role of faith groups in the state

If we are to involve faith representation in the constitution of Scotland, we need to be more imaginative than to adopt even the Scottish tradition of establishment. Scotland is more irreligious than ever before, and all large denominations are particularly struggling. Instead of privileging specific denominations with things like positions on local government education boards, for example, we should consider "faith-based-input" into state affairs being done on a more ecumenical platform. The organised religions of Scotland work closely with one another on many issues of practical significance (for example, they now consult one another regularly on how best to implement their legal duties like those with Disclosure Scotland in respect of children and vulnerable adults). Any constitutional exercise may wish to look at the work undertaken by the Scottish Inter-Faith Council and decide what, if any, formal avenues of input a similar such body should enjoy.

2. The role of civic society alongside the state

The Church of Scotland provides a model for engagement between state and civic society. The British conception of sovereignty, particularly of institutions, is very centralising and yet also very remote. If we are to encourage a new form of democratic engagement and to invogorate our civic institutions, it needs to come from an attitude of mutual respect by government for their spheres of influence. We should also look to close partnership between civic groups and the state in provision of "public goods" like education. This might reek of the rhetoric of David Cameron's dead duck, the "Big Society" but there is much to commend community action and to make good on the sense in Scotland of the "common weel". In much of the political opposition to what many see as "excessive" capitalism, there is a danger that Scotland loses its sense of society being something which can support itself without being subordinate to state activity. Democracy starts with community, and our political institutions will not always have the answers.

3. The importance of a clearly mapped constitutional process

We need to talk about the new constitution and we need to do it before the referendum. Even if it just means clearly outlining the process by which we will draw up our new constitution, we have to make sure that process is in place beforehand, and be clear what groups get to influence it and how. In particular, we absolutely do not want to have our constitution determined by whoever happens to comprise a political majority in our legislature at the time of independence. If a constitution is to be enduring, we have, at the very least, to seek a cross-political-party consensus before putting it to the people, and ideally we need to have some sort of input for civic society. Our constitution will set in motion the basis for a new way of doing things in Scotland, and we have to make sure everyone understands the terms of engagement in getting it right.

My politics is by instinct republican, but scarcely revolutionary. Though brought up in the Church of Scotland, I am irreligious. But even if Scotland is not the "Christian country" it once was, our religious organisations remain important to this broader debate about the kind of state we want to live in. To respond, we must first understand.

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