THE remains of individuals buried beneath Scottish churches may be prevented from resting in peace because of the controversial sale of Scotland’s historic kirks, it has been claimed.

Around 500 kirks across Scotland have an uncertain future as the cash-strapped national church considers selling them because of dwindling congregations – but their disposal has raised questions over the status of the dead entombed within and beneath the buildings.

The issue has recently received more attention from heritage bodies as the Church of Scotland applied to Edinburgh Sheriff Court for permission to exhume nine individuals from beneath the kirk in Morham, East Lothian (below).

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Interred in the church crypt are the remains of Sir David Dalrymple, the Lord Advocate who oversaw the 1707 Act of Union with Westminster, and his grandson, the historian Lord Hailes, and other relatives.

One of their descendants robustly opposed the removal of his ancestors and the case was due to return to court last month but has been suspended while the parties involved negotiate the matter further.

“When it came to this tomb, the Church of Scotland seemed to be arguing that coffins simply occupy a space within the church and – like any other property in the church, be it a pew or a table – they can remove them once they have obtained legal permission,” said Dr DJ Johnston-Smith, the director of Scotland’s Churches Trust, a charity which is racing against time to record the contents of Scotland’s closing churches.

Not yet for sale but also considered to be at risk is another East Lothian kirk at Saltoun (below) which houses beneath it the remains of Andrew Fletcher, who opposed the 1707 Act.

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Dr Johnston-Smith says that the attempt to exhume the Dalrymples – apparently in order to sell the church at Morham – has raised concerns about the future of Fletcher and others “People like Andrew Fletcher are of course key figures in Scottish history, so there is a great question mark hanging over whether they, along with other far less well-known individuals, will be left where they currently lie,” he said.

“Fletcher, his descendants and forebears – like many others across Scotland – are buried in a vault beneath the church. What legal protections will human remains such as these have as the church above them is sold?”

Dr Johnston-Smith acknowledged society had changed but pointed out that the buildings and their contents were once thought to be permanent fixtures.

“You were buried there and it was generally believed that the deceased would be there until the Resurrection, according to the prevailing Christian belief of the time,” he said.

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Scots law around the protection of the dead is “complicated” and dates back 2000 years to Roman times when final resting places were regarded as sacred. This was incorporated into the Scots law of violation of sepulchre which means that it is a crime to remove the remains of anyone from what was intended as their final resting place.

However, the remains can be removed if permission is granted by the courts. The problem is that if no-one objects to the application for permission – for example, if there are no living descendants – then it is likely to be granted.

It is not just the remains of people buried within crypts and mausoleums beneath churches that are at risk, Dr Johnston-Smith added, but also those in nearby local authority graveyards.

Recent legislation, currently being considered by the Scottish Parliament, is looking to overhaul the exhumation process and the manner in which councils maintain historic graveyards.

“Across Scotland, we have the most incredible and really unique collection of 18th-century ‘memento mori’ stones with skulls and crossbones, Adam and Eve and all sorts of wonderful things carved on them,” pointed out Dr Johnston-Smith. “These are all works of art but they are all well over the 100-year safeguard offered by this latest legislation and are very unlikely to have relatives to protect them. Are they just to be removed and disappear?”

Dr Jonathan Brown of Strathclyde University, who has been researching the status of the dead in Scotland, said the issue was “complicated”.

“The Church’s view seems to be that the spirit has already left the body so the bones are no different to the pews in the church,” he said. “That may be the theological position but it is not the legal one.

“If you steal a body from a funeral home, that is the crime of theft, but if you dig up a body and run away with it, you are committing the specific crime of violation of sepulchre. That is a legacy of the belief that you are not simply taking a profane object – you are committing an altogether different crime because you are interfering with a thing consigned to divine providence.”

Dr Brown explained: “If a murderer buries a body in a back garden and that body is subsequently dug up, that is not violation of sepulchre. Violation of sepulchre is removing remains from an intended final resting place – whether that is the result of a religious funeral or not.

“You can petition the court to exhume the bodies but this is almost entirely at the discretion of the sheriff on the bench that day.”

Potentially, the legal status of the dead could change under the provisions of the 2016 Burial and Cremation (Scotland) Act but as yet, the Scottish Government has made no move to deal with the issue.

“From a political perspective, they don’t need to get involved because the courts are currently dealing with it on a case-by-case basis,” said Dr Brown. “That works out in the sense that if there are good reasons for preventing it, the court can hear them, but if there is no-one out there with any reason to protect a particular gravesite, then the exhumation can go ahead.”

The National: Adam and Eve Stone at Lundie Church. 

However, Dr Brown said there was a risk of more and more litigation as church sales increase with all denominations now selling the buildings off.

“Most of these churches will have bodies buried quite literally somewhere on the grounds and what this means is the risk of litigation growing,” he pointed out.

“Controversy is likely to arise simply because many more churches are now being sold and I can’t speculate as to what form such controversies might take.

“Nothing sufficiently controversial has come up yet to make this a political issue but there are things I can’t even imagine that are going to come out of the woodwork on this. The idea that this would emerge as a problem would not have been contemplated even 60 years ago but society has changed.”

A church of Scotland spokesperson said: “Under the local Presbytery Mission Plan, the congregations of Saltoun, Humbie and Yester Bolton Churches united to become Lammermuir Parish Church at the beginning of this year. Saltoun and Bolton churches will be released with the Humbie and Yester buildings retained as places of worship.

“The congregation will maintain a presence in Saltoun by retaining the Session Rooms and Tithe Byre, and the stables in Humbie will also be kept.

“There is community interest in a buyout to maintain the Saltoun building for the village and the crypt is a separate property, which will not be impacted by the sale.

“The crypt is privately owned by the Fletcher family who are responsible for it and they have been informed of the plans to release the Saltoun church building.”

The spokesperson added: “In 2021, the General Assembly tasked the local church with creating five-year Presbytery Mission Plans to determine how finite resources are best used in the coming decades.

The Church owns thousands of properties and having fewer congregational buildings will reduce pressure on congregational finances, freeing up funds for other Church missional activities and a more sustainable future.

“Presbytery Mission Planning continues to be a live process as presbyteries and congregations consider whether their buildings are in the right place or best suited to best continue our work of mission and service to our communities, which means the situation among our congregations is always changing.”