In January 2006, Cardinal O'Brien declared a need to "re-christianise" Scotland, much to the annoyance of other faith communities who are, today, part of that country. Scotland, as suggested by the Cardinal's declaration, presents itself as a modern secular country, yet Christianity continues to play a significant role that even atheist Members of the Scottish Parliament (MSP's) acknowledge.

On June 9, 2005, the Scottish Parliament passed the first piece of comprehensive charity legislation in Scotland. Entitled the Charities and Trustee Investment (Scotland) 2005, it sets out a new charity test. The first requirement is that a body seeking charitable status must be exclusively charitable; the second test states that it must provide "public benefit." The public benefit test developed out of Lord Macnaghten's declaration that, in addition to having a charitable purpose, that purpose must be "beneficial to the community" (see the Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531). Under the 2005 Act, the public benefit test has been made central to the granting of charitable status.

This test raises interesting questions concerning the intangible benefits of religion (as opposed to the more tangible benefits of poverty relief). Yet, perhaps more important is the concern expressed over the potential intrusion of the newly created Office of the Scottish Charities Regulator (OSCR) and the Court of Session, the highest civil court in Scotland, into the administration of religious bodies, most notably the Church of Scotland (or "Kirk").

The Articles Declaratory acknowledged in the Church of Scotland Act 1921 state that the Church of Scotland, "as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine." Based on this declaration, the civil authorities may not intervene in Church matters, which by their nature are broader than simply doctrinal matters -- for example, the provision of Church homes for the elderly. For many Scots, the fact that the Church of Scotland is a law-making, self-regulatory institution comes as a surprise.

At various stages of the legislative process -- both in the Communities Committee Hearing and in the Debating Chamber of the Scottish Parliament -- the spectre of the constitutional relationship between Kirk and Parliament was raised. A Green Party MSP applauded the Committee for agreeing to broaden the definition of "advancement of religion" to include "philosophical positions that do not have a supernatural basis," but argued both in Committee and in the Debating Chamber against exemption of "designated religious charities" from the scrutiny of the Court of Session and the OSCR.

In the Committee hearings and the Chamber alike, debates on the Draft Charities and Trustee Investment (Scotland) Bill blurred the line between civil and spiritual authorities, and the implications for post-devolution Scotland were fleetingly illuminated. The complex constitutional relationship between Church and state in Scotland is seldom publicly discussed. Concerns over the Church's status as a designated religious body were expressed forcibly in Committee together with a concern that the Court of Session would have new powers over the Church of Scotland, a move that would be unacceptable to the Church. The argument by the Church revolved around the terms of the 1921 Act declaring that the Church of Scotland has independent spiritual jurisdiction, making it the only religious body in Scotland to have this privilege set out in legislation.

One MSP argued that the Scottish Churches Committee's fear that the Scottish Parliament was "overstepping the line in the relationship between the church and the state" was untenable in a modern democracy. In a democracy, he argued, the civil, and not spiritual, authority should decide on this boundary. Another MSP argued that faith plays a less significant role in most Scots' lives in the twenty-first century, and that "religious charity should be valued, supported and regulated in the same way as any other charity." However, the role of Scottish religious history and the role existing religious charities play in civic Scotland were similarly acknowledged. A potential clash was prevented by the chairperson, who stressed that it was not the concern of the Parliament, when debating the Bill, to consider the place of the Church of Scotland or of religion more generally in Scottish society.

In Scotland as in the United States, the relationship between religion and law, church and state, is fraught with tension. Such tensions over charity legislation in Scotland speak to the complexity of the constitutional relationship between the Kirk and the Parliament, which will likely prove a field for further debates in the years to come.

Richard Whitecross is a lawyer and anthropologist, and is currently ESRC Research Fellow in Socio-Legal Studies at the University of Edinburgh's School of Social and Political Studies.