Alastair McIntosh reveals some little-known sectarian pillars of UK constitutional law that fuel the Orange Order’s “loyal” opposition to Scottish independence.


It wasn’t just Question Time a few weeks ago with Nigel Kirk Hanlin of Inverness – “the Braveheart of the Better Together campaign” – going viral as he raised his fist for the Union, for Highland regiments, and for Jesus. “British forever!” – and that from someone who was, by his own account, first militarised in childhood as a boarding school boy at Glasgow’s fee-paying Academy. So much for the impression that Nigel had breezed in straight off the croft.

On a mass scale it’s also the Orange Order and behind them, groups that drive an authoritarian theology that owes more to Paul on his off-days and the war-God chapters of the early Old Testament than to the pacifist gospels of Jesus.

On the Saturday immediately preceding the Referendum the loyal Order hopes to send 15,000 of its members marching through the streets of Edinburgh as “a celebration of Britishness.” Last month on this website J. Simon Jones berated the Kirk’s silence on such matters. The issue that I want to explore in this essay is that in terms of existing UK constitutional law, it’s the Orange Order that’s in the right. It’s we, the advocates of Scottish independence, who are out of order! While everybody understands that the monarch apparently has to be a Protestant to head the established Church of England, what’s much less well-known is how very deeply anti-Catholic sectarianism runs through British constitutionalism. Especially from its Scottish antecedents.

Rule, Britannia!

Some background. The Union was not primarily driven by English aristocrats wishing to give charity to their Scottish cousins who they’d tripped up on the Darien Scheme. More to the point, England needed to bolt the barn back door through which Scotland, with our Auld Alliance, risked letting in the French.

The Union, says Linda Colley, was:

… an invention forged above all by war. Time and time again, war with France brought Britains, whether they hailed from Wales or Scotland or England, into confrontation with an obvious hostile Other and encouraged them to define themselves collectively against it. They defined themselves as Protestants struggling for survival against the world’s foremost Catholic power. They defined themselves against the French as they imagined them to be, superstitious,militarist, decadent and unfree.
(Britons: Forging the Nation, 1707-1837, Yale University Press, 1992, p. 5)

Protestantism was not just a “protest” religion that courageously protested the medieval Roman Catholic church’s corpulent abuses of power in favour of “the priesthood of all believers.” Protestantism was also hijacked as a political locomotive by Europe’s rising capitalist bourgeoisie bent on a new world order facilitated by the technological and navigational advances that would drive global imperial expansion.

As a project initially off the Renaissance and later, of the hubristically-styled Enlightenment, freedom of thought conflated into free trade and the freedom to conquer “lesser” races. Thus the British Empire became, in the words of its own anthem – Last Night of the Proms and all that – “the dread and envy of them all.” This presumption of a God-given manifest destiny, the sense of being God’s “chosen people” was nothing less than “the charter of the land.” It was to this, “at Heaven’s command,” that the “guardian angels sang this strain: Rule, Britannia!”

Colonialism of the Soul

State sanctioned Protestant religion (as distinct from Protestant spirituality and many of its “nonconformist” churches) was therefore central, not an optional add-on, to the making of the British Empire. Like Rome was to medieval and early modern Catholic states on the European continent, the imputed word of God was the basis by which emerging modern power was legitimised. The religious imperative was the means by which the state lubricated the articulation of psychological energy from the inner lives of its subjects to the outer-life projection of power, including military force.

Narratorial control over religion was also the means by which subjugated people’s could be held colonised from within, both as internal colonisation geographically within the UK and as the inner colonisation of a spiritualised Stockholm effect complete with gratitude for our “happy constitution” in the process.

None of this is an argument against religion or even, necessarily, against state-sanctioned religion. Much good has come out of what, for example, the Church of Scotland Act (1921) speaks of as the “mutual duties” that church and state owe to one another and its consequences for dignity, education and the expression of a more complete human potential. What it is an argument against is the idolatrous hijacking of religion. Religion as the inner or spiritual life socially expressed in membership one of another in community – and that, hijacked for manipulative, self-seeking and very often, violent ends. Indeed, liberation theology views much of Jesus’ activism as having been about engaging such powers in his time.

Sectarianism on all sides in Britain was born of brutal civil wars, the violent theologies of violent men of violent times. It can be understood and necessarily forgiven in terms of the norms of those times and human failings, but to carry sectarian ideologies forward into the present only tightens the spiral of violence.  “Those days are past now/ And in the past they must remain.”

Britain’s Constitutional Sectarianism

It is all the more remarkable, therefore, that anti-Catholic sectarianism remains a bulwark of the Treaty of Union. This is especially explicit article XXV (the final article ) of both the English parliament’s Union with Scotland Act (1706) and the old Scottish parliament’s corresponding Union with England Act (1707).

As is well-known, both acts carry forward the provision of the English Act of Settlement (1701) that ensures a Protestant succession of the throne. Both acts also ratify for Scotland “the true Protestant religion” – that is to say, Presbyterianism or church government by elders rather than bishops – “to continue without any alteration in the people of this land in all succeeding generations.” What is not well known is that article XXV of the Scottish Act of Union explicitly and fully incorporates the old Scottish Parliament’s Act Ratifying the Confession of Faith and Settling Presbyterian Church Government (1690), also known by its short name as The Confession of Faith Ratification Act (1690) and colloquially as the “Revolution Settlement”. (The latter is in reference to the self-styled “Glorious Revolution” of 1688 when William of Orange invaded Britain from Holland at the invitation of the English Protestant factions. He was granted the throne along with his wife, Mary, whose father, James VII & II (thus “Jacobites” because James is Jacobus in Latin) William had just usurped.)

We Scots appear to have overlooked the continuing legal traction of this 1690 Revolution Settlement in our comfort at pointing the finger of sectarian blame at England’s Act of Settlement. Speaking at the Institute of Economic Affairs in 1999 the former Scottish Secretary, Michael Forsyth, said: “The Act of Settlement is the British constitution’s grubby little secret: nobody wants to tackle it.”

In pointing out the mote in our English neighbour’s eye we ignore the beam in our own. The language of the 1690 act is choice. As can be seen on the website as linked to above, William and Mary did “… hereby revive, ratify and perpetually confirm all laws, statutes and acts of parliament made against popery and papists … for the true church of Christ within this kingdom.”

Moreover, the Revolution Settlement itemises in full and re-ratifies the Westminster Confession of Faith, thus why it is a confession of faith ratification act. This renders the faith “confession” of Scotland in current law a doctrinal creed that was drawn up by a group of mainly English and Scottish divines (gathered initially at Westminster Abbey) as ratified by the General Assembly of the Church of Scotland in 1647. The Westminster Shorter Catechism that some of us will remember learning in school (and may even draw some benefit from) is a summary of this.

Scotland’s Grubbier Little Secret

Here, however, the sectarian secret gets even more “grubby”.

It feels uncomfortable to say that – the Presbyterians amongst whom I was raised can be the finest of people – but we must be vigilant and seek to speak truth in love to what appears on our watch. The unexpurgated Westminster Confession states that Scots of “the true reformed religion … should not marry with Infidels, Papists or other idolators” (24:3). The Pope in Rome “is Antichrist, that Man of Sin and Son of Perdition (i.e. Hell)” (25:6). From the standpoint of “the Elect”, the “Popish Sacrifice of the Mass is most abominably injurious” (29:2).

Reference to “the Elect” is to the Calvinist principle of double predestination. The non-Elect, the “reprobates” with no prospect whatsoever of redemption, are by default the Damned. It may be an arcane theology, but not so in Ulster, or the American Bible-Belt, and our own 1690 act leaves such principles unrepealed in current UK constitutional law. To some double predestination is a core Christian doctrine, pivotal to the “5-point” interpretation of Calvinism. To others, it is a tragic historical heresy. It misrepresents and discredits the Christian faith because it is based on a theology of fear rather than on Christ’s repeated admonition, “Fear not.”

Put another way, Project Fear has form. I hope that I am not succumbing to the temptation of facetiousness in so suggesting. Nagging anxiety and the craving for security in all its material forms is not just in our genes. It’s also in our psychohistory, and if we don’t understand that in those with whom we might disagree we might win the Referendum in September, but we’ll fail to transform our society because we’ll fail to take others with us in seeking to tackle the aetiology of disempowerment.

Legitimacy of the Orange Order

Where does the above constitutional theology leave such groups as the Orange Order? It is what they see themselves as protecting. Their loyalty is to the law of the land as it has stood for over 300 years. If we are to seek to understand, dialogue, persuade and not merely push them into corners, it is important to appreciate that the Order, in its own words, views the 1688 Glorious Revolution’s conquest of Britain by William of Orange as an event that “laid the foundation for the evolution of Constitutional Democracy in the British Isles.” Indeed, Calvin’s Institutes of the Christian religion has been described as “the seedbed of democracy” because, when first published in Switzerland in 1536, it was, in relatively speaking, precisely that.

The Reformed (i.e. Calvinist) church principles by which a congregation “calls” its minister and kirk sessions of elders take shared decisions was very democratic compared with imposition of clergy from above by an oligarchy of bishops.

Like Nigel the Highlander, the Orange Order see their defence of hardline Protestantism as the bulwark against the erosion of “Christian” values and creeping despotism. Whilst not to be confused with the Orange Order or with the Free Church of Scotland from which it broke away in 2000, the Free Church of Scotland (Continuing) expresses this principle very clearly in a recent report; one that carries a very helpful theological history of British constitutional principles. It summarises: “The Union, with its key provisions of a Protestant throne and Protestant church establishments, has been foundational to the values and freedoms which have characterised the British nation since 1707 and has functioned in both Scotland and England as a strong bulwark against the constant menace of Popery.”

Sectarianism and the Kirk Today

There we see the spirit of 1690’s Revolution Settlement carrying through into 21st century Britain. But where does this leave today’s Church of Scotland, the Kirk as “by law established”? This is a Presbyterian church that, at least as I observe the rhythms of its parish life, is wrestling valiantly to develop a progressive Christian spirituality for the third millennium. How does it deal with having the Westminster Confession written into British law as its “subordinate standard” – meaning, subordinate or second only to the Bible?

The answer is that in 1986 its General Assembly wrestled with the angel out of a growing acceptance that parts of its Confession had become too “time conditioned”. Its subsequent declaration stated that it now “dissociates itself” from the crassly sectarian parts of Westminster such as those cited above. The position now is that it “does not require its office-bearers to believe them.”

Sectarianism and Scotland’s Constitution

In law the Act of Settlement has, as of 2013, been partly repealed to allow the monarch to marry a Roman Catholic.

So far there has been little pressure (or awareness) from within Scotland to repeal the Westminster Confession’s sectarianism as it continues to stand in the Revolution Settlement. However, section 35 of the Scottish Government draft constitution published in June states that (in the event of a Yes vote): “The Union with England Act 1707 is repealed.” With it would go the sectarian bootstrap of Article XXV.

The white paper, Scotland’s Future, proposes “no change to the legal status of any religion or of Scotland’s churches” in the event of a Yes vote. As such, the 1690 Revolutionary Settlement would presumably remain as a freestanding piece of old Scots legislation. However, its privileged position within the Union would fall and thereby hasten its drift to desuetude. It would be up to a future Scottish Parliament, perhaps encouraged by the Kirk working ecumenically, to take matters the whole way to repeal.

The draft Scottish constitution makes no explicit provisions for religion other than as part of equality safeguards. This has stirred fears amongst some church leaders that an independent Scotland would further slide towards secular materialism. I would like to think that this might be mistaken. One constitutional proposal has much greater implicit or symbolic significance for religion that most people might be aware of. Namely, “The national flag of Scotland continues to be the Saltire or Saint Andrews Cross” (8:1)

This throws an anchor line back to Scotland’s constitutional charter text, the Declaration of Arbroath of 1320, with its affirmation of the “most gentle” Saint Andrew as the nation’s patron saint. There is nothing in the Bible about Andrew having been martyred on a decussate (or X-shaped) cross. The notion derives from early Christian traditions. These hold that the disciple was executed for having encouraged the wife of the Roman proconsul in her sex strike against her husband’s nightly drunken rooster-like advances and also, for encouraging Roman soldiers to lay down their arms in accordance with the standards of early Christian pacifism.

The Parish has a Saint’s Name

The draft Scottish constitution emanates from St Andrew’s House in Edinburgh, the heavy metal doors of which beautifully portray Andrew as one of the first-called “fishers of men”. The gospels additionally describe his interfaith role in arranging for visiting (pagan) Greeks to have talks with Jesus, and also, in being instrumental in the feeding of the multitudes. Liberation theologians point out that the feeding of the five thousand and its variants is the most frequent miracle in the gospel, recurring six times. Why such emphasis?

Because, they argue, it was the Roman emperor’s role to put on bread and circuses as part of keeping the people “doped on religion, and sex, and TV.” Here was Jesus usurping that role: inspiring a miracle that was probably not of magic, but more magically, of love, of community, of the willingness of the lad with bread and fishes to share. That is what subverts the power of empire, just as it was disarmingly subversive to ask of the empire’s currency: “Whose image and inscription is this?” (Matthew 22:17-22). To fly the Saltire of Saint Andrew is thereby to symbolise equality, nonviolence, interfaith relations social justice and emancipation from imperialism. Oh really? Well, as the Welsh poet R.S. Thomas observed, “The parish has a saint’s name time cannot unfrock.”

As for September 18th, my vote’s in Andrew’s net.