Should the Government break the law? Scottish Churches say it would be disastrous

Yesterday Scottish
Church leaders wrote a joint letter to Scottish MPs and Peers on the UK
Internal Market Bill expressing four major concerns about the proposed

The Bill is currently going through the House of Lords this
week, before returning to the Commons and an expected round of ping pong.

The Bill’s aims are to do what it says – after the end of the Brexit transition period to create a new Internal Market within the UK to allow for trade in goods and services.  But the devil is in the detail: the Government admit it will break the EU Withdrawal agreement signed just a year ago, and there are a number of intended or unintended consequences…

Respect for Devolution

The Church of Scotland played a significant role in the work
of the Scottish Constitutional Convention which paved the way for devolution.
As part of this work the Church endorsed the principles of devolution set out
in the 1989 Claim of Right, namely that the Church will

acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs.

Following the 2014 referendum on independence, the cross-party Smith Commission Report on devolution emphasised the Claim of Right (para. 20).

The Smith Commission also recommended that the Sewel Convention, requiring Scottish Parliament consent to the UK Parliament making law in devolved areas, should be placed on a statutory footing (para. 22). This happened as part of the 2016 Scotland Act, which said “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

But not it seems that ‘not normally’ basically means when
the UK Parliament wants to exert its authority over the Scottish
Parliament.  Here we have a constitutional wrangle. Which Parliament is
sovereign?  For the Church, and Claim of Right, there is surely an
argument to be made that Scottish politicians should make laws in Scotland that
are devolved.

Either legislative consent needs more teeth, or it will be
another reason for the increasing support for Scottish independence.

It is the political tradition of Scotland that sovereignty
lies with the Scottish people, which (as we in the Church would say) is under
the supreme authority of God, who created us all equal. The authority to govern
must be rooted in a respect and recognition of the history, culture and
understanding of all the peoples of these islands.

This letter from the Scottish Churches is a warning that there is a growing democratic deficit: the people of Scotland consistently choose one political path, only for these objectives to be denied or overturned by others.

In my view this is a moral injustice and it relates to the
wellbeing and cohesiveness of our society; it is the calling of the Church of
Scotland to lay out their concerns on these questions.

There have been widespread concerns expressed about the
impact of the Bill on the operation of the devolution settlement in Scotland.
In the past, changes to devolution have come about following a process of
consideration, consultation, community liaison and discussion. In the process
leading up to the 1997 devolution referendum, and with both the Calman
Commission (which led to the Scotland Act 2012) and the Smith Commission (which
led to the Scotland Act 2016), civic Scotland had a voice and role in shaping
the future of how Scotland’s constitutional framework fitted in with our place
in the United Kingdom. The UK Internal Market Bill has, by comparison, excluded
civic and non-party voices from the conversation and the process risks
undermining trust in politics.

Take one example: a particular concern has been raised about
the impact of the Bill on teacher qualification standards in Scotland. 
Education in Scotland is devolved (and has in fact been distinct since before
the Union of 1707). The Church of Scotland played an instrumental role in the
establishment of Scottish education and we continue to be involved directly and
indirectly in various ways.

We are represented on the General Teaching Council for
Scotland, the statutory body which among other things maintains a register of
teachers in Scotland and sets professional standards expected of teachers. They
have asked that the teaching profession is excepted from the provisions of the
Bill in the same way that the legal professions are. Ken Muir, Chief Executive
and Registrar of GTC Scotland said,

The Bill means that GTC Scotland would seem to be expected to give full registration to teachers from any of the jurisdictions in the UK, irrespective if they are highly qualified or unqualified.

The whole point of devolution is that the nations of the UK
can set their own qualification standards for their teachers. Whereas in
England, decisions have been taken to make it easier for people with no formal
education qualification to teach, this approach is not shared by policy makers
in Scotland.  Education in Scotland – including the standards of
qualification for teacher registration – should remain a matter for the
Scottish Parliament to control.

Baroness Bennett of Manor Castle is tabling amendments to seek
to exempt the teaching profession – but it is odd that statutory organisations
like the GTCS have to lobby and have not had their views taken into
consideration at an earlier stage.

The process has denied engagement and contemplation from
many organisations that will be directly affected by the Bill.

Breach of International Law

A lot has already been written and said about the admission
by the UK Government that the Bill breaks international law, so I won’t add
much further, only that it is obvious that breaking an agreement made only
months ago with our closest partners and allies is hugely detrimental to the
UK’s reputation and undermines our wider work internationally to uphold the
rule of law.

The statement made a few weeks ago by the Anglican primates
of Ireland, Wales, Scotland and England said

This has enormous moral, as well as political and legal, consequences.
We believe this would create a disastrous precedent.

Northern Ireland Peace

The Anglican primates also highlighted a real fear and
anxiety about the repercussions of the Bill for the Northern Ireland peace
process, and the commitment to avoiding a hard border on the island of Ireland.
A hard border between the two jurisdictions creates practical and emotional

The views of the Anglican leaders:

The UK negotiated the Northern Ireland Protocol with the EU to ‘protect the 1998 Agreement in all its dimensions’. One year on, in this Bill, the UK Government is not only preparing to break the Protocol, but also to breach a fundamental tenet of the Agreement: namely by limiting the incorporation of the European Convention on Human Rights in Northern Ireland law.
If carefully negotiated terms are not honoured and laws can be ‘legally’ broken, on what foundations does our democracy stand?
We urge lawmakers to consider this Bill in the light of values and principles we would wish to characterise relationships across these islands long after the transition period.

The Queen

There is also the rather awkward question whereby the Queen, who in Scotland is a member of the Church of Scotland and who swore an accession oath to uphold the rights of the Church in Scotland, will be asked by the Government that rules in her name to sign her name to a Bill which breaks international law. Generally the Church does not condone law breaking. (Though it does recognise that civil disobedience against unjust laws or practices might be allowed, the circumstances are in protest against war and militarism or legislation which curtails human rights – but surely not a position that the Sovereign would ever be in).  Whatever you feel personally about the role of the Crown or the position of Queen Elizabeth, if Parliament sends this Bill to her it places her in a very awkward position.


When Churches speak with one voice on a public issue it carries more weight and significance. It means that, despite doctrinal and liturgical differences, the conclusions and practice that we have come to are shared; and where there is an injustice, a wrong or a concern for the wellbeing of society, it is part of the calling and purpose of the Church to highlight it and draw attention to it. I don’t pretend for one moment that the Churches have all the answers or solutions to every matter of legislation or policy. And we don’t have more right than any other organisation to speak out. But we do have values, principles and experience – and the same right as every other organisation to speak about what’s important to us. Devolution has been part of Scottish Churches’ political engagement for decades. Devolution was described by the Welsh politician Ron Davies as being a ‘process not an event’. This Bill will have an impact on this process, and with Scottish elections just round the corner we will have to see what the future of this process will be.


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