² Richard Hooker, Laws of Ecclesiastical Polity, Book VIII. 1. 2.

³ Confession of Faith Ratification Act 1560 (Mary c 1) (Parliament of Scotland). Fortunately for the Estates, Queen Mary was a minor in 1560 and the Regency was exercised by the ineffectual Mary of Guise as Queen Dowager.

⁴ Claim of Right 1689 (Will & Mary c 28) (Parliament of Scotland).

⁵ In a speech to the Annual Conference of the National Council of Voluntary Organisations on 7 February 2001, Mr Hague announced that, if elected, the Conservative Party would create an Office of Civil Society which would be staffed by ‘charities, faith communities and family groups’ and would report to a Cabinet Minister.

⁶ Synodical Government Measure 196, s 1. The promulging of Canons had previously been the preserve of the House of Bishops and the Convocations.

⁷ The draft Churchwardens Measure, which had been approved by General Synod in July 1997 as GS 1165C and which was amended as a result of disagreements between the Ecclesiastical Committee and the Legislation Committee finally received Royal Assent on 10 April 2001.

⁸ The most recent examples of rejection are the draft Appointment of Bishops Measure of 1983 and the draft Clergy (Ordination) Measure of 1989.

⁹ HC Deb (1975–1976) 912, col 613.Google Scholar

¹⁰ Sirvan Straubenzee, William et al. Senior Church Appointments (London: Church House Publishing, 1992).Google Scholar

¹¹ See eg Gledhill, Ruth, ‘Blair's Block on Bishop may lead to Church Crisis’ (The Times, 15 09 1997).Google Scholar

¹² Chadwick, Owen et al. Church and State—Report of the Archbishops' Commission (London, Church Information Office, 1970)Google Scholar. The van Straubenzee Working Party was much more limited in scope.

¹³ Medhurst, Kenneth M. and Moyser, George H., Church and Politics in a Secular Age (Oxford, Clarendon Press, 1988) p 365.Google Scholar

¹⁴ See, eg, Sylvester, Rachel, ‘Multi-Faith Coronation for Charles’ (Daily Telegraph, 10 04 2000).Google Scholar

¹⁵ Parekh, Bikhu et al. Report of the Commission on the Future of Multi-Ethnic Britain (London: Profile Books, 2000) p 243.Google Scholar

¹⁶ HC Deb (1995–1996) 281, col 1090.Google Scholar

¹⁷ Harrison, Ted, Members Only? (London, Triangle, 1994) passim, but especially pp 112–126.Google Scholar

¹⁸ Sirvan Straubenzee, William et al. Senior Church Appointments (London: Church House Publishing, 1992) p 115.Google Scholar

¹⁹ In the subsequent discussion at the conference the Legal Advisor to General Synod, Brian Hanson, pointed out that from the point of view of General Synod there was increasing dissatisfaction with what was perceived as undue parliamentary interference with draft legislation emanating from Synod.

²⁰ After the conference at which the original paper was delivered: for a report, see Harden, Rachel, ‘Lib Dems vote to abolish Establishment Privileges’ (Church Times, 22 09 2000).Google Scholar

²¹ Church of Scotland Act 1921, Schedule, Articles Declaratory, Art IV.

²² Ibid, Schedule, Articles Declaratory, Art V.

²³ Ibid, s 4.

²⁴ Churchof Scotland Order 1926, S R & O 1926/841.

²⁵ Forrester, Duncan B., ‘Ecclesia Scoticana—Established, Free or National?’ Theology (1999) CII.CrossRefGoogle Scholar

²⁶ See below.

²⁷ See eg Lockhart v Presbytery of Deer (1851) 13 D 1296 (especially per Lord President Boyle at 1299); Wight v Presbytery of Dunkeld (1870) 8 M 921 (especially per Lord Justice Clerk Moncreiff at 925); and, most recently, Logan v Presbytery of Dumbarton 1995 SLT 1228, OH.

²⁸ The Local Government Act 1988, s 28, debarred local authorities from promoting the teaching in state schools of ‘the acceptability of homosexuality as a pretended family relationship’. It was repealed in Scotland by the Ethical Standards in Public Life etc (Scotland) Act 2000, s 34.

²⁹ The Act of Settlement (12 & 13 Will 3, c 2) is chapter 2 of the statutes passed in the session of Parliament which began on 6th February 1700 and ended on 24 June 1701. Some authorities give the citation date as 1700, some as 1701. The Act was given a short title retrospectively by the Short Titles Act 1896 but without a citation date: see Halsbury's, Laws of England vol 8(2)Google Scholar, CONSTITUTIONAL LAW AND HUMAN RIGHTS, para 35, note 3.

³⁰ Gledhill, Ruth, ‘Warning by Habgood on Constitution’ (The Times, 2 07 1994).Google Scholar

³¹ The particular objection is to the Act of Settlement (1700/01), s 2: ‘that all and every person and persons who shall or may take or inherit the said crown by vertue of the limitation of this present Act and is or are or shall be reconciled to or shall hold communion with the see or church of Rome or shall profess the popish religion or shall marry a papist shall be subject to such incapacities as in such case or cases are […] provided enacted and established’.

³² Lord Forsyth was the Secretary of State for Scotland in the previous (Conservative) Government.

³³ House of Lords Minute (1999–2000), 2 12.Google Scholar

³⁴ Scottish Parliament Official Report (1999) 3/16 col 1744.Google Scholar

³⁵ Morgan, Christopher, ‘Archbishop Opens Way to Catholic Crown’ (Sunday Times, 26 12 1999).Google Scholar

³⁶ Morgan, ‘Archbishop Opens Way to Catholic Crown’.

³⁷ Protestant Religion and Presbyterian Church Act 1706 (Anne, c 6) (Parliament of Scotland), commonly known as the ‘Act of Security’.

³⁸ Union with England Act 1706 (Anne, c 7) (Parliament of Scotland).

³⁹ Union with Scotland Act 1706 (6 Anne, c 11) (Parliament of England).

⁴⁰ And, it should be said, a matter for debate among English and Scots academic lawyers going back at least as far as A.V Dicey: see eg his Introduction to the Study of the Law of the Constitution (10th edn, edited with an introduction by Wade, E. C. S., London, Macmillan, 1961) at pp 65–69Google Scholar, reproducing the text of Dicey's 7th edn of 1908. In any case, various provisions of the Acts have been subsequently repealed. For a full table of repeals, see House of Lords Committee for Privileges, 2nd Report (Whether the House of Lords Bill (as amended on Report) would, if enacted, breach the provisions of the Treaty of Union between Scotland and England) HL 108–I of Session 1998–1999 Annex I, Pt I, p 30. The report is a convenient reference for the texts of the majority of the legislation surrounding the Treaty of Union.

⁴¹ HL Deb (1999–2000) 607, col 918.Google Scholar

⁴² Union with Ireland Act 1800 (39 & 40 Geo 3, c 67) (Parliament of Great Britain), s 1, Art V: ‘that the Continuance and Preservation of the said United Church, as the established Church of England and Ireland, shall be deemed and taken to be an essential and fundamental part of the Union.’

⁴³ After delivering this paper in draft, I discovered that the Legal Questions Committee of the Church of Scotland's Board of Practice and Procedure had replied to an inquiry as to its position on the matter as follows:

‘The Committee's advice would be that the General Assembly should not oppose any review of the Act of Settlement within the context of the process of constitutional reform upon which the Government is currently engaged. Such a review should lead both to the removal of the discriminatory provisions and the identifying of solutions to the constitutional questions which could then arise. Such constitutional questions would not bear directly upon the Church of Scotland […] It would be a matter of regret to the Church of Scotland were a Roman Catholic sovereign to be put into a position of denying the validity of Church of Scotland orders and of being prevented by Roman Catholic discipline from receiving communion within the Church of Scotland, or indeed within other protestant and reformed churches within the United Kingdom. While these are difficult and sensitive areas, it is not beyond the ability of people of good will to overcome them’: Report to the General Assembly by the Board of Practice and Procedure (Edinburgh, may 2000) Appendix KGoogle Scholar. This, however, is a theological response, and does not address the constitutional problems of repeal.

⁴⁴ The Tablet, 21st 01 1998Google Scholar. The article was written while Cardinal Hume was still Archbishop of Westminster.

⁴⁵ See Philip Norton's untitled article in ‘Religion and Public Life’: The House Magazine, 24 04 2000, p 18.Google Scholar

⁴⁶ Furlong, Monica, C of E—The State It's In (London, Hodder & Stoughton, 2000) p 239Google Scholar. The problem of representing non-episcopal churches and other faith communities is that there are sometimes no obvious candidates who can act as permanent representatives: Churches in the Reformed and Wesleyan/Holiness traditions tend to appoint Presidents or Moderators who hold office for one year only.

⁴⁷ HL Debates (1999–2000) 27th July, col 571.