HM Government

in the Supreme Court of the United Kingdom

SUBMISSION

in the case of R (on the application of Frost_Walker2017) v The Secretary of State of Scotland (UKSC0022)

Responding, the Lord President of the Council, joined by the Secretary of State for Scotland -

Background of the Case

  1. The Appellant suggests that clause 2(4) of the Scularisation Act of 2016 (B358) (hereafter the “Secularisation Act”) violates the terms of the Union with England Act of 1707 (AOSP 1707 c. 7) (hereafter the “Act of Union”).
  2. Clause 2(4) of the Secularisation Act states -

“The Church of Scotland shall no longer be the National Church of Scotland”.

  1. This clause can be considered to have implicitly repealed Clause III of the Schedule to the Church of Scotland Act of 1921 (1921 c. 29) (hereafter the “Church of Scotland Act”) insofar as that clause declares the Church of Scotland the “National Church” of Scotland.
  2. Clause III of the Schedule to the Church of Scotland Act states -

“This Church is in historical continuity with the Church of Scotland which was reformed in 1560, whose liberties were ratified in 1592, and for whose security provision was made in the Treaty of Union of 1707. The continuity and identity of the Church of Scotland are not prejudiced by the adoption of these Articles. As a national Church representative of the Christian Faith of the Scottish people it acknowledges its distinctive call and duty to bring the ordinances of religion to the people in every parish of Scotland through a territorial ministry.”

  1. The Appellant suggests that this violates the terms of the Act of Union insofar as Article XXV of that Act restates verbatim the terms of the Protestant Religion and Presbyterian Church Act of 1707 (AOSP 1707 c. 6) (hereafter the “Presbyterian Church Act”).
  2. The Presbyterian Church Act is composed of a single clause, with its main purpose being to ensure that -

“the true Protestant Religion as presently professed within this Kingdom with the Worship Discipline and Government of this Church should be effectually and unalterably secured Therefore Her Majesty with advice and consent of the said Estates of Parliament Doth hereby Establish and Confirm the said true Protestant Religion and the Worship Discipline and Government of this Church to continue without any alteration to the people of this land in all succeeding generations And more especially Her Majestie with advice and consent foresaid Ratifies Approves and for ever Confirms the fifth Act of the first Parliament of King William [II] and Queen Mary [II] Entituled Act Ratifieing the Confession of Faith and settleing Presbyterian Church Government with the haill other Acts of Parliament relating thereto in prosecution of the Declaration of the Estates of this Kingdom containing the Claim of Right bearing date the eleventh of April [sixteen hundred] and eighty nine And Her Majesty with advice and consent foresaid expressly Provides and Declares that the foresaid true Protestant Religion contained in the above mentioned Confession of Faith with the form and purity of worship presently in use within this Church and it’s Presbyterian Church Government and Discipline that is to say the Government of the Church by Kirk Sessions Presbytries Provincial Synods and General Assemblies all established by the foresaid Acts of Parliament pursuant to the Claim of Right shall remain and continue unalterable And that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland”.

  1. More specifically, the Presbyterian Church Act also states that -

“That this Act of Parliament with the Establishment therein contained shall be held and observed in all time coming as a fundamental and essential condition of any Treaty or Union to be concluded betwixt the two Kingdoms without any alteration thereof or derogation thereto in any sort for ever”.

The Church of Scotland

  1. The Church of Scotland, with its Presbyterian polity, was established by the so-called “Reformation Parliament” of 1560, most notably through the Confession of Faith Ratification Act of 1560 (AOSP 1560 c. 1) and the Papal Jurisdiction Act of 1560 (AOSP 1560 c. 2).
  2. The reformation of the Protestant faith was legally confirmed after much tumult and the ousting of Her late Majesty Queen Mary I.
  3. Despite the ratification of a full Presbyterian form of church governance through the General Assembly Act of 1592 (AOSP 1592 c. 8), successive Monarchs, through further tumult, sought unsuccessfully to impose alternative polities on the Church and people of Scotland.
  4. After the ousting of His late Majesty King James VII, the Old Scottish Parliament passed legislation securing Presbyterian governance of the Church of Scotland. Most notably this included the aforementioned Claim of Right Act of 1689 (AOSP 1689 c. 28) (hereafter the “Claim of Right”) and the Confession of Faith Ratification Act of 1690 (AOSP 1690 c. 7.).
  5. The effect of the Claim of Right was to bolster parliamentary sovereignty at the expense of the royal prerogative, enabling the Old Scottish Parliament to guarantee the Presbyterian governance of the Church of Scotland through the Confession of Faith Ratification Act of 1690.

The Treaty of Union

  1. Through the Act of Union, the Old Scottish Parliament and the English Parliament were abolished, creating the Parliament of Great Britain, which would later become the Parliament of the United Kingdom.
  2. As part of the negotiations of the Treaty of Union, the Scottish negotiating commissioners secured several articles safeguarding and guaranteeing certain central aspects of Scottish society, government and religion after the Treaty of Union came into effect.
  3. For the purposes of this case, the most significant guarantee is given in Article XXV of the Act of Union, restating verbatim the Presbyterian Church Act, as required by the Presbyterian Church Act for any Act implementing a Union between the Kingdoms of England and Scotland.
  4. As a result of the provisions of the Act of Union, it has been suggested that the Parliament of the United Kingdom does not enjoy absolute parliamentary sovereignty in Scotland.
  5. Most prominently, in the decision of the case of MacCormick v Lord Advocate (1953 SC 396) Lord Cooper, the Lord President, held that -

“the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”.

  1. This was extended in the Lord President’s opinion, holding that -

        “the Treaty and the associated legislation, by which the Parliament of Great

Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect”.

  1. In concurrence on this issue, the Lord Advocate, at that time representing Her Majesty’s Government, accepted that -

“the Parliament of the United Kingdom could not repeal or alter fundamental and essential conditions of the Act of Union”.

  1. In a general sense, provisions of the Act of Union and Presbyterian Church Act continue to have effect, with His Majesty King Charles III making the oath to preserve and protect the Church of Scotland prescribed by Article XXV of the Act of Union at the Accession Council on the 10th of September 2022.
  2. His Majesty’s Government accordingly accepts this point, that an Act of the Parliament of the United Kingdom could be held in violation of the Act of Union, despite the Lord President, in MacCormick v Lord Advocate, declining to suggest an declaratory or remedial mechanism for such a procedure.
  3. His Majesty’s Government suggests that if this Court, the existence of which could not be foreseen by either the Lord President in MacCormick v Lord Advocate or the Scottish Commissioners negotiating the Treaty of Union, does not have the authority referenced by the Lord President in MacCormick v Lord Advocate to determine whether an Act violates the Act of Union then no court could have the authority referenced.
  4. It is consequently the case that the Appellant’s petition is justiciable by this Court, as if it is not justiciable then that fact would violate the contractual nature that the Old Scottish Parliament believed the Treaty of Union had when it passed the Act of Union at a time in which that parliament enjoyed an, arguably dominant, share of sovereignty.
  5. Nevertheless, it is not the case that the Appellant’s petition to this Court is valid, as Clause 2(4) of the Secularisation Act does not violate the Act of Union.

The Church of Scotland after the Union of 1707

  1. After the Union of 1707, legislative interference in the operation of the Church of Scotland continued with the Church Patronage (Scotland) Act of 1711 (10 Ann. C. A. P. XII) and the Church Patronage (Scotland) Act of 1874 (1874 c. 82) (hereafter the “Church Patronage Acts”).
  2. The Church Patronage Acts first privileged civil law ahead of the canon law of the Church of Scotland regarding the selection of parish ministers before later repealing this.
  3. The contemporary General Assemblies of the Church of Scotland between 1711 and 1874 protested that the first Church Patronage Act violated the terms of Article XXV of the Act of Union.
  4. In 1834, the General Assembly of the Church of Scotland passed the so-called “Veto Act”, regulating the appointment of parish ministers.
  5. The Court of Session declared this Act as ultra vires in the case of the Presbytery of Auchterarder v the Earl of Kinnoull and the Rev. Robert Young (hereafter “Auchterarder v Robert Young”), acting contrary to the Confession of Faith of the Church of Scotland preserved in the Presbyterian Church Act.
  6. In 1839, this Court’s predecessor institution, the Appellate Committee of the House of Lords, declined the appeal of the Church of Scotland in Auchterarder v Robert Young, allowing the first Church Patronage Act to take precedence over the Veto Act.
  7. Article XXV of the Act of Union therefore cannot be considered to prevent legislative action regarding the Church of Scotland.

The Church of Scotland Act 1921

  1. The effect of the Church of Scotland Act was to, alongside the second Church Patronage Act, restore the independence of the Church of Scotland from the State that the decision in Auchterarder v Robert Young had held as non-existent.
  2. As the Articles Declaratory of the Constitution of the Church of Scotland, composed prior to the enactment of the Church of Scotland Act, the Church of Scotland held that this independence had always existed, the Church of Scotland Act could therefore be considered as restoring the situation existing at the time of the passage of the Presbyterian Church Act.
  3. However, alongside recognising the Declaratory Articles in the civil law of Scotland, the Church of Scotland Act created the invention of the the status of the “National Church” of Scotland in Clause III of the Schedule to the Act -

“This Church is in historical continuity with the Church of Scotland which was reformed in 1560, whose liberties were ratified in 1592, and for whose security provision was made in the Treaty of Union of 1707. The continuity and identity of the Church of Scotland are not prejudiced by the adoption of these Articles. As a national Church representative of the Christian Faith of the Scottish people it acknowledges its distinctive call and duty to bring the ordinances of religion to the people in every parish of Scotland through a territorial ministry”.

  1. This means that the designation as the “National Church” of Scotland did not exist at the time of the passage of the Presbyterian Church Act, even if the effect of the Church of Scotland Act was to return the status of the Church of Scotland to what it was at the time of the enactment of the Presbyterian Church Act.
  2. The provisions of the first Church Patronage Act, which was upheld as lawful in Auchterarder v Robert Young, must therefore be considered to be a graver threat to the guarantees provided to the Church of Scotland by Article XXV of the Act of Union.

Contemporary Developments

  1. It is true that the Church of Scotland Act was considered a cornerstone of the modern constitution of Scotland and it featured heavily in the subsequent proceedings of the Parliament of the United Kingdom.
  2. This included consideration, but ultimate rejection, of the requirement for tailored provisions for the Church of Scotland in the Human Rights Act of 1998 (1998 c. 42).
  3. Most significantly, the Church of Scotland Act may be considered to have been protected from modification after the Scotland Act of 1998 (1998 c. 46) established the Scottish Parliament, showing the seriousness that the Parliament of the United Kingdom exhibits in its responsibility to preserve the safeguards provided by Clause XXV of the Act of Union.
  4. One view of this was expressed by the now Lord Wallace, a future Deputy First Minister of Scotland and Moderator of the General Assembly of the Church of Scotland that “the Church of Scotland Act 1921 makes it clear that this Parliament [of the United Kingdom] recognised that there are limitations on its sovereignty” before expressing  incredulity at the idea that “this Parliament passed the Church of Scotland Act 1921, which gave the Church of Scotland, its general assembly and its courts sovereignty over all matters within the spiritual domain of the Church, Westminster retained the sovereign right to remove those powers at a later stage” (both HC Deb 28 January 1998 vol. 305 cc357-451).
  5. The general reservation of matters arising from “the Union of the Kingdoms of Scotland and England” (Clause 1(b) of Schedule 5 to the Scotland Act of 1998) means that legislative consent was not sought from the Scottish Parliament for the Secularisation Act, but the issue of legislative consent is more generally non-justiciable.
  6. Notwithstanding this, on the 16th of December 1999, the Scottish Parliament passed a motion (S1M-117) seeking the repeal of the (English) Act of Settlement of 1701 (1700[1] c. 2) -

“That the Parliament believes that the discrimination contained in the Act of Settlement has no place in our modern society, expresses its wish that those discriminatory aspects of the Act be repealed, and affirms its view that Scottish society must not disbar participation in any aspect of our national life on the grounds of religion, recognises that amendment or repeal raises complex constitutional issues, and that this is a matter reserved to UK Parliament”.

  1. It should be noted that Article II of the Act of Union provides for the English Act of Settlement of 1701 to govern succession to the unified monarchy of England and Scotland, meaning that it has relevance in highlighting the continued relevance of specific provisions in the Act of Union within Scotland.
  2. No subsequent parliament has reversed this position, showing that public opinion had decisively moved in a more substantial direction than the Clause of the Secularisation Act being petitioned provides for.

Relevant Provisions of International Law

  1. The Acts of Union are not merely Acts of the Old Scottish Parliament and of the English Parliament, but an international treaty between two countries.
  2. That this is the case is evident through the enactment of the Treaty with England Act of 1705 (AOSP 1705 c. 4.).
  3. As noted by Lord McNair in Law of Treaties (1961), the Treaty of Union conformed with all requirements in international law for a treaty between two States.
  4. Accordingly, in enacting the Acts of Union, the Old Scottish Parliament and the English Parliament did not enact a statute of domestic law, but rather ratify an international treaty between two States.
  5. This means that, as highlighted by Walker (The Union and The Law, 2007), amendments to the Treaty by the Parliament of the United Kingdom in those areas noted by the Lord President in MacCormick v Lord Advocate that were specifically excluded from the Parliament of the United Kingdom would be of no effect in International Law.
  6. Through its incorporation into Article XXV of the Act of Union, this would also apply to the Presbyterian Church Act.
  7. That this has been done in the past, for example, through the Universities (Scotland) Act of 1853 (1853 c. 89) repealing parts of the Presbyterian Church Act does not mean that the Parliament of the United Kingdom inherently holds the power required to do so.
  8. Nevertheless, the Lord Advocate, representing Her Majesty’s Government, in MacCormick v Lord Advocate, is clear that only “fundamental and essential conditions of the Act of Union” are precluded from amendment.

Conclusion

  1. The Treaty of Union was an international treaty between two sovereign States that did not grant the Parliament of the United Kingdom unrestricted sovereignty over the State that the Treaty created.
  2. This means that the Parliament of the United Kingdom does not enjoy, and has never enjoyed, absolute sovereignty in Scotland.
  3. That in passing various enactments, including the Church Patronage Acts and the Universities (Scotland) Act of 1853, the Parliament of the United Kingdom may have acted contrary to international law does not mean that the Parliament of the United Kingdom should continue to act contrary to international law.
  4. This is not necessarily altered by the fact that the judiciary of the United Kingdom upheld such provisions in cases including Auchterarder v Robert Young unless it is held that such cases involve matters that, in the words of the Lord Advocate in MacCormick v Lord Advocate, are not “fundamental and essential conditions of the Act of Union”.
  5. This Court must have jurisdiction to answer the petition of the Appellant, despite the Lord President’s hesitation that any court did in MacCormick v Lord Advocate, because if this Court does not have such jurisdiction it is unlikely that any court does, this fact would also violate both the contractual nature that the Old Scottish Parliament believed the Treaty of Union to have and the associated principles of international law.
  6. Nevertheless, the petition claims that the repeal of a provision from an enactment (the Church of Scotland Act) of 1921 should be considered as violating the Article XXV of the Act of Union, meaning that, in the words of the Lord Advocate in MacCormick v Lord Advocate, it would deal with matters that are “fundamental and essential conditions of the Act of Union”.
  7. This cannot be the case, as it is through Clause 3 of the Schedule to the Church of Scotland act that the idea of the Church of Scotland being the “National Church” of Scotland is created.
  8. It is precisely, and only this, that the Appellant’s petition refers to, as Clause 2(4) of the Secularisation Act reads simply -

“The Church of Scotland shall no longer be the National Church of Scotland”.

  1. As this provision was only created by the Church of Scotland Act, over two centuries after the enactment of the Act of Union and the Presbyterian Church Act, such a provision cannot reasonably be considered, in the words of the Lord Advocate in MacCormick v Lord Advocate, a “fundamental and essential [condition] of the Act of Union”.
  2. It is also relevant that the enactment of the Church of Scotland act occurred precisely to correct legislation enacted after the Treaty of Union which was always considered by the Church of Scotland to be in violation of the terms of Article XXV of the Act of Union because this means that the provisions within the Church of Scotland Act cannot cannot reasonably be considered, in the words of the Lord Advocate in MacCormick v Lord Advocate, a “fundamental and essential [condition] of the Act of Union” if they exist solely to remedy events which occurred after the Treaty of Union.
  3. Furthermore, in the alternative interpretation, upheld by the Court of Session and the Appellate Committee of the House of Lords in Auchterarder v Robert Young, that the Church Patronage Acts did not violate the Act of Union, and the Presbyterian Church Act contained within it, then it must be accepted that the provisions made by the Church Patronage Acts altered the Prebyterian character of the Church of Scotland in a far more substantial and significant manner than the Secularisation Act and yet do not violate the Act of Union, meaning that the Secularisation Act likewise cannot violate the Act of Union.
  4. More generally, the status as the “National Church” of Scotland conferred by the Church of Scotland Act and removed by the Secularisation Act can be considered as simply a title or description of the Church of Scotland, having no influence regarding the Presbyterian character of the Church of Scotland and therefore not being relevant for the purposes of the Prebyterian Church Act or Article XXV of the Act of Union.
  5. The Court should consequently reject the petition.

mg9500

Lord President of the Council

IceCreamSandwich401

Secretary of State for Scotland

[1] The date of the Commencement of a new year in England was not aligned with that of Scotland, and modern convention, until 1752, with the referencing of English Acts prior to that date subject to the Acts of Parliament (Commencement) Act of 1793 (1793 c. 13).