CIVIL PARTNERSHIPS

The General Assembly of 2006 had given initial approval to draft legislation guaranteeing freedom from disciplinary action to any minister or deacon who conducted a religious service that recognised a civil partnership. However, on the initiative of its opponents, the proposed Act was submitted to presbyteries under the Barrier Act of 1697 – a measure used in several Reformed Churches, which ensures that no significant legal change in the area of the Church's spiritual jurisdiction can be made without consultation with the wider Church. Predictably, given the uneven size and spread of presbyteries, the measure received insufficient support and could therefore not be brought back to the 2007 General Assembly for final enactment.

The consequential question was: what was the resulting legal position? The legal advice received by the General Assembly, and formally minuted at their request, was that the lack of approval of the measure could not alter the pre-existing position. Since the status quo had been an absence both of explicit permission and of explicit proscription of such services, the failure of presbyteries to endorse the proposed guarantee of immunity from censure could not be taken to imply any guarantee in the opposite direction. ‘There is no law of the Church specifically authorising ministers to mark civil partnerships and no law specifically forbidding it’.

At the time of writing, no test case has been raised; it is probably a matter of local policy whether any presbytery would attempt to bring disciplinary proceedings in such circumstances.

SAME-SEX RELATIONSHIPS

Meanwhile, the Mission and Discipleship Council of the General Assembly produced a major report on more general theological issues on human sexuality.Footnote ¹ The Report was prepared by a Working Group including representatives from the whole spectrum of doctrinal opinion on the issue. The Group's achievement in producing a substantial Report on which they could all agree was commended throughout the Church; and its quality commends it as a resource for other denominations (not only those in the Reformed tradition) struggling with similar issues.

Recognising that Biblically based conclusions on issues of human sexuality are largely determined by underlying approaches to Biblical interpretation and authority, the Group acknowledged that any attempt to resolve the deep-seated differences of opinion on the issue in a single direction was likely to end in denominational division. The Report took the unity of the Church as its priority; the tensions would have to be retained within the Church for the foreseeable future, and not forced to resolution. This position is very broadly (though not universally) welcomed in the Church, and is seen to constitute a positive decision despite its being apparently founded on inaction. The Report gives a clear indication that there was a universal acceptance amongst the very diverse Group of the genuineness of the possibility of homosexual orientation, with the area of disagreement confined to questions of lifestyle and relationships.

DISCRIMINATION LAW

In common with other denominations, the Church is involved in an exercise along with the Department for Business, Enterprise and Regulatory ReformFootnote ² intended to satisfy the Department that it offers its clergy ‘equivalence of protection’ in comparison with secular employment protections; if it succeeds, it hopes to enjoy continued exemption from the relevant civil law in respect of its parish ministers.

A major element was the enactment of two pieces of legislation. The Act anent Bullying (Act IV 2007) seeks to improve the conduct of individuals and organisations within the Church, and clarifies the kind of moral censures available to the courts of the Church. The Act anent Discrimination (Act V 2007) is targeted at official bodies within the Church (and their agents), gives a more formal legal protection in areas that include appointment to paid and unpaid offices, and is designed to provide more concrete penalties – including financial ones. Since that would involve expanding the existing powers of censure currently available to presbyteries, the Barrier Act has again been used to consult the whole Church on this one element of innovation, while the remainder of the measure has been enacted containing the lesser censures currently available.

Since the protected grounds listed in the anti-discrimination Act reflect those of civil law, the conclusions of the Report on same-sex relationships were important in achieving a properly inclusive piece of legislation.

FINANCING OF CASES IN THE CHURCH'S JURISDICTION

The Church has been anxious to ensure that the quality of justice and process in Church proceedings is equal to that in the civil law, and, as there is no legal aid available in Church courts, it is important to ensure (especially in disciplinary cases where ministerial status may be at stake) that parties are provided with the necessary legal representation.

The Church had previously leaned so far in the direction of generosity that Respondents to disciplinary charges were able to recruit legal teams far more senior or numerous than their cases merited, all at the expense of the central funds of the Church. The General Assembly has amended the relevant legislation to bring its system more into line with the practice for awarding expenses in the Sheriff Courts in civil actions.

FUTURE DEVELOPMENTS

The next substantial piece of legislation is likely to be a major reform of the Church's ministry. Anomalies and inconsistencies beset the offices of Auxiliary Minister (a non-salaried minister who is ineligible to be inducted to a charge and whose theological qualifications may be lower than those of full-time ministers) and of Reader (unordained preachers with lower requirements in theological education than Auxiliary Ministers but who, for reasons of historical accident, often enjoy better income than the latter through eligibility to receive fees for the provision of occasional pulpit supply). The Church's Ministries Council is exploring the possibilities for simplifying these parts of the ministry of the Church, perhaps into ordained ministries recognised nationally or locally depending on status and legal competencies. The policy debate is by no means concluded, however, and so the relevant legislative drafting awaits a later stage.