Court of Session (Day 11)
Thursday 28th October 2004
On the 6th day of his submission, Mr Dawson for the FC (Continuing) continued on his 4th part, the Continued Right of Protest (CROP), and then proceeded to 5th part, Departure from the FC constitution and 6th part, Matters raised by Miss Charteris for FC.
7. Barrier Act
Mr Dawson submitted that this showed that the General Assembly cannot have lordly authority over the Church in the legislative sphere, and he held that this is consistent with the pursuer’s position on the power of the Assembly in the judicial sphere – due process is given a high importance so that a majority cannot impose its will on a minority.
8. Historical material
In this section he sought to show from what the Defenders (the FC) admitted were historical facts (such as the fact that James Begg protested in 1867 etc.) that the CROP was a fundamental principle of the FC.
He showed that Begg etc opposed the proposed Union with the UP Church on constitutional grounds (the abandonment of the Establishment Principle), that an FCDA was formed, that public meetings were held, that magazines were published, that protests were made and that Begg etc. were not disciplined by the Church. He argued from this that not only did the church know what a protest was but that this showed that there was a recognition within the church that protest was an essential part of the fabric of the FC.
Conclusion
He then summed up his 4th part (on CROP) by outlining 12 principles and 5 conclusions
Principles
1. An analysis of the history and the documents demonstrates the CROP is a right fundamental to the constitution of the Free Church of Scotland.
2. The right to be heard when one’s conscience dictates that one should speak is at the very heart of the historical documents.
3. The CROP is inherent in the constitution, it being essential to the nature and fabric of the Church and its development.
4. Such a conclusion can be reached not necessarily by isolating a single constitutional document, but by looking at the totality of evidence available which is expository of the constitutional significance of the CROP.
5. Such an approach mirrors that taken by their Lordships in Bannatyne.
6. The CROP is linked to the ordination vows of office bearers to assert, maintain and defend the constitution of the Church.
7. The ordination vows when read together require that the constitution be defended to the extent that lawful decisions of Church courts are not disobeyed by so doing.
8. The CROP derives from the importance of the recognition in the Free Church’s ideology of the Headship of Christ and the liberty of conscience.
9. The character of the CROP involves continuing one’s protest where the dictates of conscience compel one to do so.
10. The character of the CROP also involves making efforts to persuade others to your point of view in defence of the constitution.
11. the 1851 Act referring to abuses after 1711 could hardly be more clear in identifying the unjust denial of the right of protest for the exoneration of individual conscience. The Court should characterise these utterances as an indication that the right of minorities were properly to be safeguarded within the Church of Scotland and the concept of protest was an essential element.
12. Given the scope of this examination, one wonders whether Lord President Couper would have reached the same decision as he did in Mackay vs. MacLeod were he to have presided over the present debate with the present proceedings. [Lady Paton remarked dryly this was an “interesting” point.]
Conclusions
1. The right of the minority to protest unless that right were specifically excluded by constitutional process is fundamental to the nature of the Free Church.
2. The concept of protest can be distinguished from that of dissent. The nature of protest though also rooted in the Free Church’s ideological understanding of liberty of conscience involves the duty actively to speak out to maintain the constitution.
3. He reiterated his earlier emphasis that their Lordships in Bannatyne warned against dismissing a principle as no-fundamental.
4. It is difficult to see how protest can be anything other than a continuing duty and right. This is because, assuming the protest to be properly conscientious and not vexatious, frivolous or contrary to a decision of a Church Court properly and judicially arrived at, a protest, by its very nature must be persisted in. Withdrawal of a protest or limitation to a single utterance would be cancellation of the protest.
If there is a continuing wrong in the departure from constitutional standards, there ought to be a continuing protest until the matter is brought to a head by judicial determination.
Here Lady Paton asked a series of questions to clarify the precise meaning of the CROP. Lady Paton: Would the protesters be silent after a judicial investigation where they did not agree with the result? Would they leave and claim they were the true Free Church? Is that the right of protest?
Dawson: Yes
Lady Paton: So it continues beyond the judicial decision of the General Assembly?
Dawson: Yes
5. In a situation where there is a difference of view between a majority and a minority, it cannot be maintained, given the historical analysis, that the peace of the Church is paramount. This would result in a charter for compromise of principle and would effectively allow the majority to rule over the conscience of the minority.
Part 5 – Departure from the Free Church constitution
Mr Dawson contended that the issue before the Court related to the response of a majority to a minority wishing to have further discussion of the due process of discipline. The majority from an early stage set its face against further discussion and felt it appropriate to impose their own view. The complaint is that the majority insisted that there be no further discussion by anyone of matters considered by the TOM Committee. Neither this insistence nor the TOM Committee’s view was a judicial determination, and not being so, could not be made immune from review.
Lady Paton queried what immunity from review meant. What review was envisaged?
Dawson: Further investigation.
Lady Paton: Is judicial review by civil court considered?
Dawson: More time required to answer that.
Mr Dawson continued. The result of this response was to make the constitutional exercise of the CROP on a constitutional matter a bar to communion.
Lady Paton: What does bar to communion mean? It never got to the stage of the 22 ministers being told they couldn’t attend services?
Dawson: They were entitled to attend, but not take communion. [This is completely mistaken. But see below.]
Mr Dawson then drew 11 points from the agreed pleadings.
1. An issue was raised and sent for investigation.
2. The Sub-committee of the TOM recommended a libel in 1993.
3. The TOM rejected this in December 1993
4. The 1994 General Assembly told the TOM to review this decision after considering the advice of the Church’s Law Agent and the Clerk of Assembly.
5. The matter was closed by the 1995 General Assembly, and all talk must cease [?]
6. There was no chance for the Courts of the Church to hear anything further except in the context of the prosecution of a private libel.
After lunch, Mr Dawson sought to answer questions raised by Lady Paton.
(1) Judicial review by civil Court. The Pursuers have not reached a concluded position on this question.
Lady Paton: There has been no judicial review of Church decisions in my knowledge.
(2) What would review within the Church consist of? This is not laid down.
Lady Paton: One example is the General Assembly asking the TOM to review its decision. The General Assembly has overall power of review, but there is no rigid method.
(3) Private libel. This would be a difficult procedure for an individual to take, he would not have recourse to the full range of material on which to base a libel, and he would have to do it at the risk of being censured as a slanderer.
(4) Bar to communion. The suspensions of the ministers was suspension from acting as ministers. However, its effect would be a bar to communion, because the ministers who were suspended constituted the entire ministry of the minority and therefore in being suspended they would effectively not have anywhere to go to take communion.
Disclaimer
This only takes us up to lunchtime. I am now scunnered and going to bed! If I feel like it I will give the rest of this interesting material tomorrow. John Wright QC might get a look in tomorrow afternoon, if he’s lucky, to sum up for the Free Church.
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After lunch Mr Dawson continued his eleven points from what he asserted were the agreed articles in the Record.
7. No judicial procedure had been gone through at this stage to entitle the General Assembly to close the matter in this way.
8. The General Assembly is only entitled to close a matter in this way where a judicial determination has been made.
9. In closing the matter in this way they were effectively denying the minority the opportunity to oppose by lawful means the decision reached by a Committee which could not be binding upon them.
Lady Paton: There is a subtle distinction between being open to review and saying that a review has to take place.
Dawson: But in a non-judicial finding, those who wish to protest must not lose their right to do so. By closing the matter, the protesters were denied that right.
10. A dissent was recorded by 27 commissioners and the minority of the TOM from the finding.
11. the dissent stated that the matter had been closed without basic evidence being examined, without basic presbyterial procedures whereby a fama clamosa can be quietened and the innocence of the innocent established. Therefore the minority, in light of the matter being closed, were given no means by which the matter could be reviewed by Church Courts.
Mr Dawson then referred to The Practice (the Blue Book) quoting particularly from p.91, para. 4, “The investigation of a rumour (or fama, as it is called) is notoriously difficult because though rumour may be rife people may be unable or unwilling to bear relevant testimony. But the undoubted difficulty does not absolve the Church court from endeavouring to arrive at the truth.”
Lady Paton pointed out that the paragraph he read also stated that the Church court “may decide” it is required to act. The discretion lies with the court.
From p.106-7 of The Practice Mr Dawson deduced that a scandal against a minister is a matter of some severity given the damage it may do to the good name of the Church. It is incumbent on those charged with responsibility to carry out a careful preliminary investigation.
He then elaborated on his point 7 by engaging in a lengthy and subtle legal argument which concerned the right to take the weaker of two alternative and inconsistent averments. It related to the question as to whether the 1995 finding had been a “judicial” finding. On the one hand, the Defenders (the Free Church) had given a general denial of a section of the Pursuers’ pleadings that the 1995 finding was non-judicial, but on the other, the defenders had not shown any judicial process had been undertaken. The relevancy of the whole case is to be judged on the relevancy of the weaker. Where alternative statements of fact are put forward by a party, their case falls on the weaker of the two and where that weaker is irrelevant, the case is irrelevant in its entirety.
Lady Paton: It is the case that the right of review lay with the General Assembly, but you are saying that when taken together with the CROP this means a channel of enquiry has been cut off?
Dawson: Yes. The importance of CROP relates to the fact that a different GA at a later date could come to a different view on whether matters should be investigated or not.
In referring to the rescinding of the “censure” of the “1997 TOM Three” by the 1998 GA, he said that this points to a realisation that the 1995 finding was non-judicial and that formal censure for the actions of those submitting the Minority Report was not possible as by protesting against the decision they could not be deemed to have contravened the rules of the Assembly.
Lady Paton: That’s surmise.
Mr Dawson continued by saying the Defenders’ pleadings reveal that events subsequent to 1995 were consequent on the 1995 finding which professed to close the matter once and for all. The 1996 finding relating to the allegations against Professor Donald Macleod was the kernel of it all.
Part 6: Matters raised by Miss Charteris This deals with the 3rd chapter of Miss Charteris’ submission in 12 parts.
1. “The Pursuers have failed to aver what is meant by CROP. The action ought to be dismissed for this alone.” Mr Dawson answered this by indicating that in his view the Defenders’ pleadings showed that they knew what it was, and Miss Charteris made various suggestions from the Pursuers’ pleadings as to what it might be. As an example of the former he quoted “Dissents with reasons (and protests, if recorded) do continue by virtue of being engrossed in the records of a Church Court, and will in that sense, continue long after the dissenter is dead.” As an example of the latter, he said that Miss Charteris had suggested that protest may equate to disobedience of Church courts. He said this is not the case. The right to protest is only exercisable where the decision of a Church court has not been taken in accordance with the requirements of the process laid down in the constitution.
Lady Paton: Is the CROP protest come what may, or is it protest until there is a judicial finding of the Assembly?
Mr Dawson indicated he required time to consult on this issue.
He continued: Since the Defenders refer to various examples of protest, they ought to be able to understand that protest is a concept that can be described in a variety of senses. Also in Mackay vs. MacLeod, their Lordships had difficulty in locating a definition of the concept of protest in constitutional documentation, because they were restricted by the terms of the trust to looking at specific documents only. Also they were looking for a specific definition of protest which allowed one to protest against a judicial finding of the Supreme Court, but which would not automatically separate one from the Church. This is not the case here.
2. “The pursuers have failed to show that CROP is a fundamental principle.” The Pursuers’ answer is that in Bannatyne it was said that once a principle had been identified, one should be slow to account it as non-fundamental. One must take account of the totality of the constitutional and historical sources to come to a conclusion as to whether there is a fundamental right of CROP.
The Court adjourned until 10.30 am on Friday.
Alex MacDonald
Media Officer |
