Parliament considers the Church of Scotland—briefly...

The House of Commons is taking all stages of a bill to allow Lady Elish Angiolini, who is a Roman Catholic, to be Lord High Commissioner to the General Assembly

Today in the House of Commons there will be all stages of consideration of the Church of Scotland (Lord High Commissioner) Bill. That means the bill will have its Second Reading, go into a Committee of the whole House and have its Third Reading in one go, then be whisked off to the House of Lords for what I suspect will be similarly perfunctory scrutiny (though with their Lordships one can never tell). Such a compressed schedule tends to be reserved for emergency legislation or, occasionally, measures which are of very minor and technical significance but have to be passed by Parliament. Today’s bill is largely in the latter category although, arguably, there is a faint element of the former.

The bill is extremely short—two clauses. It amends section 12 of the Roman Catholic Relief Act 1829 to remove the position of Lord High Commissioner to the General Assembly of the Church of Scotland from a list of offices which Roman Catholics are barred from holding and asserts that “a person of the Roman Catholic faith may hold the office”. For anyone who is, quite sensibly and understandably, not immersed in constitutional and legal history for professional or emotional reasons, this no doubt raises a lot of questions, so I thought it might be a small public service to set out a brief explanation.

The Roman Catholic Relief Act 1829

The Reformation in England, and to an extent that in Scotland too, was a peculiarly legalistic revolution. It was, after all, prompted principally by Henry VIII’s desire to have his marriage to Katharine of Aragon annulled, and there are sound reasons to suppose that if the papacy at the time had been able and willing to grant the King the annulment he sought, there might well have been no Reformation in the form it eventually took. Henry was a man with peculiar and idiosyncratic religious beliefs, but on the whole he remained a relatively orthodox Catholic until his death in 1547 and certainly was not an out-and-out Protestant.

A consequence of the legalistic nature of the Reformation was that the law was used to enforce and entrench the position of the Church of England and the Church of Scotland, and to impose conformity by introducing a range of legal disabilities on non-conformists, especially Roman Catholics. The penal laws became stricter and more targeted after the Restoration in 1660. In England, the so-called Clarendon Code saw the passing of the Corporation Act 1661, the Act of Uniformity 1662, the Conventicle Act 1664 and the Five Mile Act 1665, effectively barring non-Anglicans from public office and making it difficult for them to gather together, as well as mandating the use of the Book of Common Prayer.

After the Acts of Union brought England and Scotland together in 1707, the Parliament of Great Britain passed the Security of the Sovereign Act 1714, which required most holders of public office to take the oaths of allegiance and supremacy: this meant supporting the Crown and the Protestant succession as laid out in the Act of Settlement 1701 (which had become part of Scots law under Article II of the Treaty of Union), and acknowledging the monarch’s status as Supreme Governor of the Church of England who also had obligations to uphold the position of the Church of Scotland.

The cumulative effect of all of this legislation was that Roman Catholics (among others) could not, unless they were willing to swear oaths falsely, participate in huge swathes of public life, and could not be Members of Parliament. This was particularly controversial in Ireland, where more than 80 per cent of the population was Catholic and therefore by definition excluded from office. Political power was in the hands of the Anglo-Irish population who belonged to the established Anglican Church of Ireland, whose bishops sat in the Irish House of Lords until the Parliament of Ireland was abolished in 1800. Towards the end of the 18th century, the often-reluctant view became more widespread that public order and the authority of the British government in Ireland—after 1801 exercised by the Lord Lieutenant and the Chief Secretary for Ireland from Dublin Castle—would only be sustainable if some of the legal penalties against Roman Catholics were relaxed (known as “relief”).

By the late 1820s, a degree of emancipation for Catholics was seen as the least bad option even by supporters of the Protestant settlement like Home Secretary Sir Robert Peel (nicknamed “Orange” Peel for his anti-Catholic views). In January 1828, the Duke of Wellington was appointed Prime Minister with Peel serving as Home Secretary and Leader of the House of Commons, and it was this unlikely pair which overcome a sceptical, occasionally hostile King George IV and a House of Lords opposed to Catholic emancipation to see the Roman Catholic Relief Act given Royal Assent in April 1829.

The act repealed:

certain oaths and certain declarations, commonly called the declarations against transubstantiation and the invocation of saints and the sacrifice of the mass, as practised in the Church of Rome… as qualifications for sitting and voting in parliament and for the enjoyment of certain offices, franchises, and civil rights.

Catholics could therefore now participate in public and political life and sit in Parliament. Rather than swearing the Oath of Supremacy and recognising the King as Supreme Governor of the Church of England, they could pledge to bear “true allegiance” the monarch, reject any claim to “temporal or civil jurisdiction” in the United Kingdom by the Pope or “any other foreign prince… or potentate” and “abjure any intention to subvert the present church establishment”. All of these undertakings were much easier to give in good conscience.

However, the Roman Catholic Relief Act did not remove all legal disabilities on Catholics. Professorships, fellowships and other positions in English universities were still subject to sacramental Tests, which required the holders to profess Anglicanism, while in Scotland anyone holding a position in a university or school had to subscribe to the Confession of Faith, a doctrinal statement of the Church of Scotland. In addition, the act listed specific offices from which Roman Catholics were barred: “Guardians and Justices of the United Kingdom, or of Regent of the United Kingdom, under whatever name, style or title such office may be constituted”; Lord Chancellor of Great Britain; Lord Chancellor of Ireland; Lord Lieutenant “or other Chief Governor or Governors” of Ireland; and Lord High Commissioner to the General Assembly of the Church of Scotland.

That last provision remains in place, which is why today’s bill is before the House of Commons.

(The status of eligibility to be Lord Chancellor is unclear. The Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act 1974 makes clear that “that the office of Lord Chancellor is and shall be tenable by an adherent of the Roman Catholic faith”. However, the disability remains on the face of the Roman Catholic Relief Act 1829, while many other offices have been removed. The issue has yet to be tested by the appointment of a Catholic Lord Chancellor.)

The governance of the Church of Scotland

We refer to the Church of England as “the established church” as a convenient shorthand, but that is only true within England. There is no established church in Northern Ireland (and the Church of Ireland was disestablished in 1869), while the Church in Wales, which is also part of the Anglican communion, was disestablished in 1920. In Scotland, the situation is slightly more complex.

The Church of Scotland separated from the Roman Catholic Church in 1560 and, unlike the Church of England, was created in a Presbyterian Calvinist form. Here is not the place to rehearse the theological and doctrinal differences between the two churches, but what is significant is that the Church of Scotland is strikingly non-hierarchical. It has no bishops, although an episcopate was introduced under James VI and maintained by Charles I before being abolished in 1638. Each parish has a Kirk Session, a group of elders elected to oversee the administration of the parish, and representatives of these Kirk Sessions sit as one of 14 Presbyteries (there are 11 in Scotland with one for adherents of the church in England, and the Presbytery of Jerusalem). The governing body of the Church of Scotland is the General Assembly, which is made up of representatives of the Presbyteries—around 400 ministers and 400 elders—and meets in Edinburgh every May. The General Assembly elects one of its members to be Moderator and act as presiding officer, holding office for a year.

Although the Church of Scotland is not “established” in the same way as the Church of England, it is described as “the national church in Scotland”, underlined by the provisions of the Church of Scotland Act 1921. The Confession of Faith Ratification Act 1690 of the Parliament of Scotland enshrined in law the presbyterian system of governance of the Church of Scotland, and the monarch, on accession to the throne, is required by the Acts of Union 1707 to swear an oath by which he “shall inviolably maintain and preserve the Settlement of the true Protestant Religion as established by the Laws made in Scotland… together with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland”.

The King is not the head of the Church of Scotland. As the church makes clear on its website, “we recognise no head of faith other than the Lord God, and no one person or group within the Church has more influence than any other”. The King is required by oath to preserve the Church of Scotland, and, by some mystical change which comes upon the sovereign at the border, he worships according to the Church of Scotland when he is in Scotland. But the government has no role in appointments within the church, unlike in England, and the monarch has no particular authority.

The King does, however, have one privilege in respect of the Church of Scotland, in that he may be represented at the General Assembly by a Lord High Commissioner. The Confession of Faith allows that the “civil magistrate... hath power to call synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God”, and Lord High Commissioners have been appointed by the monarch since 1690. He or she addresses the General Assembly at its opening and closing, attends at least part of each day’s business, informs the monarch of the proceedings at the end of the assembly’s session and carries out various ceremonial functions during the week in which the General Assembly is meeting. But the Lord High Commissioner cannot participate in the business of the assembly, and sits on a throne in the Royal Gallery of the Assembly Hall on the Mound, technically and symbolically outside the assembly itself.

Who is the Lord High Commissioner?

The post of Lord High Commissioner, while largely ceremonial, is one of great prestige and honour. When the General Assembly is meeting, he or she is treated like a regent, is addressed as “Your Grace”, resides at the Palace of Holyroodhouse and ranks in the order of precedence behind only the King. He or she is entitled to use the Royal Banner of the Royal Arms of Scotland, and, like the monarch’s, his or her car is not required to carry a numberplate. There is a formal Household for the Lord High Commissioner, headed by the Purse Bearer and including a chaplain, aides-de-camp and ladies-in-waiting.

The position has traditionally been filled by figures with a distinguished record of public service in Scotland or members of the aristocracy (some have fallen into both categories) and have generally had close links to the Church of Scotland. In 1969 and 2002, Queen Elizabeth II attended the General Assembly in person, meaning there was no need to appoint a Lord High Commissioner. Other members of the royal family have frequently occupied the role in recent years: Charles III, when Prince of Wales but using his primary Scottish title of Duke of Rothesay, was Lord High Commissioner in 2000; the Princess Royal performed the duty in 1996 and 2017; the Duke of York, as Earl of Inverness, was Lord High Commissioner in 2007, Prince Edward, first as Earl of Wessex and then as Duke of Edinburgh, held the position in 2014 and 2024; and Prince William, as Earl of Strathearn, represented the Queen at the General Assembly in 2021 (he was also Lord High Commissioner in 2020 but the General Assembly did not meet due to the Covid-19 pandemic).

There have been several former politicians who have held the post: for example, former Presiding Officers of the Scottish Parliament Lord Steel of Aikwood (2003-04) and George Reid (2008-09); former Lord Chancellor Lord Mackay of Clashfern (2005-06); ex-Labour MP Lord Hogg of Cumbernauld (1998-99); and former Scottish Secretary Willie Ross (1978-79). It has also been granted to senior legal figures like the then-Lord Justice Clerk Lord Ross (1990-91), former Deputy President of the Supreme Court Lord Hope of Craighead (2015-16) and his incumbent successor Lord Hodge (2022-23).

Why is the bill necessary?

The bill before the House of Commons today is necessary because in December 2024 it was announced that the Lord High Commissioner to the General Assembly in May 2025 would be Lady Elish Angiolini, former Lord Advocate and currently Principal of St Hugh’s College, Oxford, and Lord Clerk Register. She has had a distinguished public and legal career, including conducting a number of high-profile public inquiries, and her service in government, the law and academia is as good a set of qualifications for this ceremonial role as any of her recent predecessors.

However, Lady Elish, who was born in Govan to a family with its roots in Ireland—her maiden name is McPhilomy—is a Roman Catholic, and therefore currently disqualified from being Lord High Commissioner under the remaining provisions of the Roman Catholic Relief Act 1829. The Church of Scotland (Lord High Commissioner) Bill will remove that position from the list of posts from which Catholics are excluded and allow Lady Elish to take up the appointment.

When the appointment was announced, Lady Elish said it was “an immense honour”, and the Principal Clerk of the General Assembly, Rev Fiona Smith, said “We are honoured that His Majesty has appointed Lady Elish Angiolini as Lord High Commissioner. We very much look forward to welcoming her to the General Assembly 2025. It is interesting that no official mention was made at that point of Lady Elish’s religious adherence. However, she was quoted the same day in The Times as saying that her appointment was a “fabulously significant gesture”.

I am a Catholic but I don’t see a conflict at all in taking up the role. It is really important that people of all religions and faiths come together. The world is a scary place these days and it is important that people of all faiths meet, share and promote peace and harmony. This is a good example of that.

No conflict, perhaps, but a legal disability. The Church of Scotland has made significant efforts to establish warm ecumenical relations with the Catholic Church in recent years, and in 2022 the two institutions agreed the Saint Margaret Declaration, described as “a decisive and irrevocable statement of our friendship with one another, based on our shared faith in Christ”. Certainly, the Church of Scotland has come a long way since 1923, when its Church and Nation Committee presented a report entitled The Menace of the Irish Race to our Scottish Nationality; this document accused Catholics of attempting to subvert the Presbyterian settlement and of drunkenness, crime and financial imprudence, and called for a ban on Irish immigration to Scotland, noting “a movement throughout the world towards the rejection of non-native constituents and the crystallisation of national life from native elements”.

The government announced on 13 February, two months after the notification, that a bill would be introduced to amend the Roman Catholic Relief Act 1829 and remove any obstacle preventing Lady Elish Angiolini’s formal appointment. The bill was brought in the same day. It will be whisked through the House of Commons without much opposition, I suspect, and after it passes the House of Lords, will gain Royal Assent in plenty of time for Lady Elish to become “Her Grace” for a week in May.

There is a cynical part of me which wonders, considering the sequence and timing of events: the government did know she was not legally eligible for the post under current statute, didn’t they? It didn’t escape the notice of the Church of Scotland, the Royal Household and the Cabinet Office? Surely not.