At a discussion in the immediate aftermath of the 1992 General Synod vote on the ordination of women to the priesthood, some of those present were musing on what would happen if Parliament refused to approve the draft Measure. I suggested rather diffidently that, if the legislation were rejected, the Church of England would have to think very hard about its relationship with the state and that the result might look something very like the Disruption. To my astonishment, their reaction was one of blank incomprehension, so I told them the story with which Lord Rodger begins these lectures.

In a prearranged gesture at the opening of the General Assembly of the Church of Scotland in St Andrew's Church in 1843, the retiring Moderator, Dr Andrew Welsh, led the assembled fathers and brethren in prayer before reading them a long Protest. Following this, he led some 200 ministers of the evangelical party down to Tanfield Hall, where they declared themselves ‘The Church of Scotland Free’ and appointed Dr Thomas Chalmers as Moderator of what they regarded as the ‘true’ General Assembly. Eventually, almost two-fifths of the ministers of the Kirk joined them; and the schism was not finally resolved (and even then not wholly so) until the reunion of the Church of Scotland with the majority of the Free Church in 1929. But though the effects of the Disruption can still be seen and felt today, very few people outside Scotland have ever heard of it; and Lord Rodger sets out both to tell the story in considerable detail and to disabuse readers of any notion that it is merely a mildly interesting and obscure historical byway.

The Disruption marked the culmination of an increasingly bitter disagreement that had its origins in the Church Patronage Act 1711, which was so deeply resented by the Church of Scotland that it was the subject of an annual Protest by the General Assembly until 1784. The dispute as to whether the right to call a parish minister lay with the patrons or with the local congregation was rooted in conflicting views of the nature of the Church: what the evangelicals declared to be ‘the Crown Rights of the Redeemer’ against what the moderates regarded as order and good government. However, it also had a strong constitutional element, with what Lord Rodger describes as ‘a series of decisions … in what would nowadays be described as judicial review proceedings’ (p 2). In 1834, the General Assembly passed the so-called Veto Act, under which a majority of the male communicant heads of families in a parish could reject the patron's presentee to a vacant charge. When the validity of the Veto Act was challenged in the courts, the Church argued – unsuccessfully – that the effect of the Treaty of Union was that the secular courts did not have jurisdiction over ecclesiastical matters; the Act was overturned and, ultimately, the Disruption was the result.

Lord Rodger's book expands his Jean Clark Memorial Lectures at the University of Aberdeen in 2007. The first lecture traces the events that led up to the Disruption, while the second looks at the reaction of the courts. Scotland is a small jurisdiction now and was an even smaller one then; and several members of the judiciary were also members of the General Assembly – with the result that, in the first Auchterarder case,Footnote ⁴ Lord Moncreiff found himself sitting in judgment on the validity of the very Veto Act that he had helped promote in the General Assembly.

Useful though it is to have the history set out in an accurate, accessible and readable form, for the non-specialist the most interesting lecture is the third: ‘The long shadow of the Disruption’, which continues the story through the Free Church case,Footnote ⁵ the Churches (Scotland) Act 1905 and the eventual reunion in 1929. The crux, however, is the Percy case.Footnote ⁶ Ms Percy was an associate minister in Angus accused of improper sexual conduct. Instead of undergoing trial by libel before her presbytery, after a process of mediation she agreed to resign her post and demit status as a minister. She then had second thoughts and went to an employment tribunal, alleging unfair dismissal and sex discrimination contrary to the Sex Discrimination Act 1975, section 6. The facts are set out at the beginning of the third lecture: suffice it to say that the House of Lords finally held that Ms Percy had been contracted ‘personally to execute any work or labours’ for the Church for the purposes of section 82(1) of the Sex Discrimination Act 1975 and that the issue was not a ‘matter spiritual’ within the exclusive cognisance of the Church.

Lord Rodger expresses surprise that Percy passed totally unnoticed by the mainstream legal journals:

He regards Percy as a significant development in an area which, it was thought, had been settled by the Church of Scotland Act 1921. Those who framed that Act would have assumed that the only remedy for alleged unfairness in the proceedings of a presbytery or in the actions of a board or committee would have been an appeal to the General Assembly – whose decision would be final. In modern practice, however,

Moreover, though the appearance was entered in the name of the Board of National Mission, Ms Percy was, in fact, complaining about the actions of her presbytery. So, if Percy is symptomatic of anything, it seems to be pointing to a gradual change in the relationship between the courts and the churches: for example, since Percy it is now much harder than before for a church to claim that it is not in a contractual relationship with an individual stipendiary cleric.Footnote ⁷

For anyone specialising in Scottish church or legal history over the long nineteenth century this book is essential reading; but it should also be of value to those with a more general interest in issues of church–state relations. ‘The bookcase of many a Scottish household’, notes Lord Rodger, ‘used to contain a copy of Brown's Annals of the Disruption – that most sentimental of books’. (p 2) Mine still does: and I am delighted to have The Courts, the Church and the Constitution as an unsentimental companion to set alongside it.