Church Law

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Church Law

This brief introduction to the law of the Church of Scotland gives an overview of sources, explains how law is formed and used, points to some key elements and gives hands-on experience in the practical application of the law.

Everything you need is available through the links below. It may be helpful to download these items and have them available on a computer during the course.

Further support may be offered through a closed WhatsApp group and details will be provided at the course day. If you find this too much (or you’d like to check more out later) there’s the possibility of a smaller online tutorial: for more details, complete the contact box at the bottom of this page. Assessment is a necessary part of the course, and the tasks are also detailed near the bottom of this page.

Contents

Preliminary: using PDF documents
Constitutional issues
Legal theory and practice
Church Law: Acts and Regulations
Scots (civil) law
Legal works
General Assembly Standing Orders
Other resources
Course essay

Preliminary: using PDF documents

It would not be practicable to print all this material. Electronic formats offer scope for considering larger swathes of content more rapidly, but are sometimes challenging to navigate. Electronic distribution, usually via the Church website, is the default method for many documents including church law.

It is particularly helpful, almost essential, to be confident navigating a document electronically using a PDF reader, to know how to carry out text searches on PDF files and to mark these up with notes and highlighting. Most of the available documents permit this feature though documents scanned as images may not.

It doesn’t matter which PDF reader you prefer to use, provided it allows you to navigate pages and search text. Additionally, the ability to save a marked (highlighted or commented) PDF document will likely prove most useful in your work.

Note the difference between stand-alone PDF readers and those which open a PDF document within a browser window. The latter usually have fewer functions.

PDF Readers are available for WindowsLinuxMac and Chrome operating systems.

Constitutional issues

The Articles Declaratory

The Articles Declaratory provide a high-level constitution of the national Church of Scotland, and are given legal effect within the Law of Scotland in the Church of Scotland Act 1921.

The Basis and Plan of Union

The Basis and Plan of Union is the agreement entered into between The Church of Scotland and The United Free Church of Scotland as both existed prior to 1929. It is the set of principles which enabled the Union which formed the present Church of Scotland. It is not easy to locate on-line nor navigate, but this is the rough outline:

  • There is a brief and broad historical narrative of the steps which led to 1929 (section I).
  • The basic documents which the united denomination holds dear are listed (section II).
  • There are provisions enabling the union to occur, which are now largely historic (sections III and IV).
  • The Articles Declaratory, described above, are integrated in full. There is a section which emphasises the spiritual independence of the newly-formed church in light of some earlier court cases (section V).
  • The Questions and Formula, and words of Ordination and Induction of a Minister to a charge (and of an elder to that office) are prescribed.

Some of the Plan is no longer relevant (e.g. the provisions relating to the mechanics of the union), but it addresses current matters which are largely not covered in other church law:

  • The constitution and procedure of the General Assembly is given in broad outline;
  • The constitution, functions and powers of Presbyteries, Synods (which were abolished in the mid-1990s) and Kirk Sessions are outlined;
  • In advance of the First Edition of Cox (see below), the Plan offered some basic provisions regarding the function and obligations of Ministers, congregational records, the calling of meetings, the predecessor of Local Church Review, residence within a Manse and proclaiming banns.
  • Disciplinary processes are described, as are those matters where (a) the Kirk Session and (b) the Presbytery is the court of first instance, i.e. where matters are first brought for determination.

Parts of the Basis and Plan of Union are still applicable; unless explicitly amended the Basis describes the general principles upon which the Church is based and in some cases provides reasonably detailed descriptions of certain matters.

Subordinate Standard: The Westminster Confession of Faith

To understand the position of the Westminster Confession, this recent article may be worth reading. The Westminster Confession itself may be accessed from many sites. The Church is presently reviewing the place of the Westminster Confession for these reasons; other views supporting its retention are also worth considering. The Declaratory Act as to the Westminster Confession of Faith (Act V, 1986) distanced the Church from some aspects of the Confession.

The Barrier Act

This provision which regulates the introduction of innovative practices by the General Assembly and requires discussion by, and the agreement of a majority of, presbyteries is worth noting.

Constitutional issues in congregations

There is some variety among the current arrangements for constituting local congregations. A summary with link to more detailed information is provided by the Church’s Law Department. For the sake of completeness, I might add that Presbyteries (as far as I am aware) do not have a separate constitution but are an association of representatives from congregations within the bounds, and others. Presbyteries, and some Kirk Sessions, may have Standing Orders which govern their rules of procedure.

Legal Theory and Practice

Separation of powers

The Church, like the state, has a means of separating the three branches of government. Here is a detailed description and assessment of the idea of the Separation of Powers. The equivalent bodies in the Church of Scotland are:
Executive (which proposes and implements):
Government <=> Assembly Agencies, Presbyteries
Legislature (which makes law):
Parliament <=> General Assembly
Judiciary (which interprets and enforces law):
Courts <=> Commission of Assembly, other assessment bodies

Practising Church Law

Much of Church Law governs processes and steps which require to be taken in particular ways and sequences. Some of the processes are challenging to follow and, at times, to implement. Taking things step by step and recording those steps taken is useful.

Often, the facts are at least as challenging to ascertain as the legal provisions.

It is vital that in dealing with people throughout processes which may become embroiled in legal issues, there is a consistent application of principles of dignity, clarity of thought and expression, comprehensive recording, and engaging where appropriate in conversations aimed at supporting resolution.

Law is not a black art: words mean what they generally mean unless they are defined for a specific purpose in the relevant Act. Careful reading, often more than once, is the key to understanding the legislation.

Church Law: Acts and Regulations

These copies of the Acts and Regulations of the General Assembly are annotated for this course – the highlighted sections are those I have found, in my years of ministry, to be among the most relevant sections and are the ones I generally have tucked away somewhere in the back of my mind. (I would have to refer to all the other material for the detailed provisions.) The Church of Scotland website, though, has up to date documents but the ones on the website are not highlighted!

Learning the highlighted sections in their generality if not their detail is likely to be helpful.

Acts: Highlights

Here is a selection of the more significant issues for those in parish ministry and where to find them currently (prior to the General Assembly 2020):

Procedural issues
Selecting and appointing elders and (local) deacons, with styles – Act X, 1932.
Congregational Meetings – Act XVIII, 1932.
Intimating Appeals – Act V, 2004.
Appeals – Act I, 2014.
Alternative Dispute Resolution – Act VI, 2014.
Virtual Attendance at Meetings – Act VI, 2018.

Exercising ministry
Marriage of divorced persons – Act XXVI, 1959.
Marriage services – Act I, 1977.
Unsatisfactory State – Act I, 1988.
Membership vows – Act XII, 1996.
Administration of the Sacraments – Act V, 2000.
Ministerial Discipline – Act Act I, 2001.
Long-term Illness – Act XV, 2001.
Registration of Ministries – Act II, 2017.
Parish Ministry – Act II, 2018.

Congregational life (excluding Kirk Sessions)
Congregational funding – Act V, 1989.
Congregational constitution – Act II, 1994.
Communion Rolls – Act VI, 2000.

Kirk Sessions
Church Courts (Kirk Session, Presbytery, General Assembly) – Act III, 2000.
Moderating Kirk Session meetings – Act VI, 2004.
Discipline of Office-bearers – Act I, 2010.

Reflection, Readjustment and Vacancies
Appraisal – Act VII, 2003.
Vacancy Procedure, with styles for use – Act VIII, 2003.
Local Church Review – Act I, 2011.

Safeguarding and protection
Child Protection (Safeguarding) – Act V, 2005.
Protection against Bullying – Act IV, 2007.
Protection against Discrimination – Act V, 2007.
Safeguarding Act – Act XVI, 2018.

General help

Some Acts commence with a section on definitions. Feel free to skip this to get to the meat of the Act in the following sections, then return to definitions to determine what specific terms mean for the purposes of that Act.

‘Shall’ is compulsory (and more accurate than the looser ‘will’) whilst ‘may’ is permissive or provides for non-compulsory options.

Some elements of Acts provide for certain things to happen – or preclude them – whilst others describe the processes which require to be followed.

Church Law changes at each Assembly, not through the year (unless in exceptional circumstances). It takes some time for the Church of Scotland website to reflect the the current position after each Assembly.

Sources of Church Law are Acts of the General Assembly and Regulations of the General Assembly. There is a common law of the Church, too, but is less readily accessible until Weatherhead’s work (see below) is updated.

Sections of Deliverance of the General Assembly are as binding as Acts and Regulations, but being less accessible tend to get lost in the mists of time (which can descend alarmingly quickly at times).

The developing practice appears to be that legislation is created, or amended, to reflect necessary changes in various groups’ ways of working (see, for example, recent and regular amendments to Safeguarding or Registration of Ministries legislation).

Lawyers generally know a little about a lot, but they can find out the fine detail when required.

The best interpretation tool is a good friend and a coffee – chatting things through often helps it make better sense.

Scots Law: Law Department Circulars

The Church’s Law Department from time to time issues guidance notes, circulars and other asisstance to help Church staff with important, relevant matters of Scots civil law which apply to church practices. It is worth checking whether a circular or note has been prepared for the area in which you are interested.

Legal works

Although now rather out of date this short and accessible introduction to the Church of Scotland’s procedures, prepared by Gordon McGillivray, still has its uses. It cannot be relied upon as an authoritative statement of the present law of the Church. It does, however, describe generally accepted practices particularly surrounding the convening of Kirk Sessions and financial courts.

There are four tasks, all of which you are required to complete. They include requirements to produce specific types of written material: identifying and producing appropriate stuff is part, though not all, of the task.

In doing this you should identify all the legislation which is relevant to considering each task, and where appropriate give the Act name, number and year, and relevant section(s). You are expected to refer also to Law Department guidance and other accessible sources of Church Law, but not to sections of Deliverance from previous General Assemblies unless these are readily available to you.

Each section of your answer should not exceed the word count specified. Part of the challenge is to be concise.

Task 1
The Report of the Legal Questions Committee is being presented at the General Assembly and the Convener is on his feet, fielding questions.
Rev Rosie Spex asks, ‘Moderator, in the light of the recent election to the Scottish Parliament of Rev Demos Kratos who is Minister in the adjacent parish to mine and whose parish funerals I’ve now apparently inherited, will the Convener remind the Assembly of the general principles surrounding ministers holding public office?’
The Convener turns to you, hoping you’ll hand him three or so paragraphs which, in no more than five hundred words (the limit for answering a question is five minutes) outline the current church law on the subject.

Write what he will receive from your hand.

Task 2
The phone rings. It’s your colleague from along the way, Rev MT Pulpit, who is Interim Moderator in an attractive linked country charge which has been vacant for five months. He tells you there has been one application, from a PCUSA Minister currently serving in Utah, and the Nominating Committee are interested in pursuing this possibility.
Knowing you have just completed the Church Law course and that you are full of knowledge and enthusiasm, he asks what he should do next and what are the further steps he then ought to take to enable her, assuming the congregation remains enthusiastic, to become the Minister? Clearly the hope is that every step taken will be positive – there are no hidden difficulties.
You say you’ll drop an email with the steps, and that it will be no longer than five hundred words.
He thanks you, saying you’re the most helpful Presbytery Clerk he’s come across.

Write the email he will receive.

Task 3
Rev Doug Collar, the OLM who serves with you in the parish where you’re Minister, asks to speak to you after Sunday worship. He is a bit distressed because the Presbytery Clerk (and you are not the Clerk) has written to him saying that in six weeks time he will no longer be serving with you but will be assisting Rev Short Straw who is being appointed an Interim Moderator and will need some help to lead worship and provide pastoral care in his quadruple rural linking. Doug and you have got on well and Doug says he would struggle along the way because he’s heard at least two of the Kirk Sessions are ruled by rather overbearing Clerks and he would much prefer to remain with you. He asks you what the law is, whether he should have a say in Presbytery’s decision, and what he can do if he’s not happy with it.
You tell him that, as far as you remember from Presbytery meetings, the correct procedures have been followed. However, you offer to have a think and write him a briefing note on his options in no more than five hundred words for next Sunday.
The following week you give Doug an envelope with your considered wisdom on the matter.

 

What do you tell him, and what are your reasons?

Task 4
Six months into your first charge the Kirk Session has identified three new elders who are willing to serve and all the selection processes have been completed. Candidates are Dr Alpha Male, Miss Crystal Methven and Lord Vol Dermot; the Session thinks Sunday 10th September would be a suitable day for the service. Only Dr Male has served on another Kirk Session.
This answer should be as long as it needs to be, but no longer. You’ll thank me for helping you prepare what you’ll almost certainly be required to do in your first charge.

Draft all the necessary written material which the congregation or parts thereof will hear and others may read to enable these three people to become ruling elders on your Kirk Session.


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