Court of Session (Day 11)

Friday 29th October 2004

Mr Dawson first dealt with the Judge’s question as to how one might reconcile two apparently different positions about the CROP (see above). The answer, he said, is that there are two different types of protest:
(1) If there is a continuing wrong in a departure from constitutional standards, there ought to be a continuing protest until the matter is brought to a head by judicial determination.
(2) One must keep in protesting even if apparently appropriate motions have been gone through – as in the protest dealt with in Bannatyne.
In the present case, the protest was against proper constitutional procedure not being gone through in and investigation of a very serious matter. The matter protested against could therefore be resolved by a proper judicial investigation and a judicial decision according to the constitution being made. This is why the judicial decision limits the right of protest. This is because once the proper constitutional procedures have been adhered to and a judicial decision made, the need for protest can come to an end.

Lady Paton: So the nature and extent of protest varies from circumstance to circumstance.

Mr Dawson then returned to his answers to the Defenders’ 12 points.

3. “The Pursuers have failed to aver any obligation to answer reasons for dissent.” Mr Dawson pointed out that the Pursuers admitted in the Record that a Church court is not under obligation to give answers to reasons for dissent.

4. “The Pursuers fail to aver that the Free Church did not accord the right of protest or dissent. And if CROP is such a fundamental right it ought to have been mentioned.” He did not accept this. There was no requirement the CROP be invoked in any way when making one’s protest. The right of protest was denied to the minority by the majority.

5. “There is insufficient material from which an actual or proposed alteration of the constitution of the Church can be inferred.” He said that the Pursuers accept that there has been no overt change to the Free Church constitution. The Defenders have abandoned the constitution. The spiritual fabric of the Church was changed.

6. “There is a failure to aver any actual or proposed diversion of trust property.” He said that the use of the property for the benefit of the Defenders (the Free Church of Scotland) constitutes use of the property by a body of Christians that is not the Free Church of Scotland.

7. “A failure to proceed in accordance with the constitution does not equate with an abandonment of the constitution.” His answer was that the Free Church had abandoned its constitution. The purported alteration by majority in 1900 was an abandonment of the constitution.

8. “There is a failure to aver that the Free Church is associating under a constitution that does not uphold the constitution of the historic Free Church.” He answered that the fact that the Defenders did not allow the Church to continue its CROP, the bond of union essential to the existence of a body such as the Free Church was destroyed. The Defenders abandoned the historic constitution of the Free Church.

9. “The FCC’s claim is inconsistent with the principle of Spiritual Independence.” Mr Dawson reiterated again the Pursuers’ understanding of CROP and maintained it does not lead to the perpetual interference of the civil court in the ecclesiastical court. Rather it seeks to show that there has been a major departure from the very rights which can enable a minority to remind a majority of the importance of maintaining the standards and reputation of those involved in the ministry without which the success of the gospel would be severely prejudiced. Spiritual Independence by its very nature requires that a minority be able to speak up in support of matters which they believe to be a contravention of the constitution of the church.

10. “Questions as to the scope of Biblical sin and as to whether to exercise disciplinary jurisdictions are questions for the Church courts in exercise of their spiritual jurisdiction.” Mr Dawson answered by again reiterating the Pursuers’ position on the CROP. In the event that a church court has departed from the constitution, has deviated from the constitutional process of the Church and has denied a fundamental constitutional right, it can no longer be deemed to be exercising the authority given to it by the head of the Church.

11. “From the pursuers’ own averments it appears there was a basis on which the Free Church was entitled to consider the exercise of its jurisdictions.” He reiterated that the present case was not about church discipline. It concerns the Defenders abandonment of the constitution. The investigation into allegations against Prof. Donald Macleod are at the kernel of it all.

Lady Paton: In this case the General Assembly directed that the FCDA should be disbanded. Is the Pursuers’ understanding that this was part and parcel of the defenders’ abandonment of the constitution? Yes.

12. “Even if there were relevant averments that individuals have on any occasion been wrongly subjected to discipline, then the remedy lies with these individuals.” He said that whether there is a remedy available to individuals does not detract from the right of the body in the Pursuers’ position to raise an action alleging a departure from the constitutional principles of the Free Church.

Mr Dawson then dealt briefly with the Defenders’ conclusion that not only should the case be dismissed, but they should be granted absolvitor (decree in favour of defender). He refuted this.

Lady Paton: What is the Pursuers’ position regarding the case going to proof? What would be added by taking evidence? What would you put before a Court. How would proof run? Mr Dawson came back with an answer later, indicating that in the Pursuers’ view the defenders’ pleadings are sufficient at this stage to for the case to be disposed of and decree de plano granted (without going to proof).

7th Part: The Pursuers’ Alternative Claim (dividing up the property)

Mr Dawson sought to counter Miss Charteris’ arguments from Bannatyne and Craigdallie by emphasising that these authorities state that it is adherence to the constitution that is the determining factor in judging whether a party is entitled to property. The Pursuers have not lost title to the property.

Lady Paton: What about little splinter groups splitting off, without departing from the constitution, simply because they didn’t like some aspect of the organisation? Mr Dawson: This is not a problem we have to deal with in the present case.

In answer to a question of the Judge’s as to how the Court might deal with this matter if decided in favour of the Alternative Conclusion, he said that some consideration would have to be given to appropriate proportion in any division of properties. If the Court were minded towards a settlement in this manner, this matter should be put out for order for discussion as to procedure.

8th Part: Conclusions

1. The property of the Free Church is held for behoof of those who adhere to the whole fundamental principles of the Free Church.
2. In the determination of this dispute, the Court requires to determine which party is the true Free Church of Scotland. In order to do so, the Court must determine which party has adhered to the whole fundamental principles of the Free Church.
3. Determination of which party has adhered to the whole fundamental principles must be undertaken without regard to which is the minority or majority. It is adherence to the principles which counts, not numerical advantage.
4. The Court in seeking to determine the fundamental principles of the Free Church, for the purposes of this litigation, must have regard to the constitutional doctrines of the Free Church and to all relevant and credible material expository of the constitution which may be of assistance. In this case, the requirement for the Court is to undertake this search in order to determine whether the CROP is a fundamental constitutional principle of the Free Church.
5. The CROP is a fundamental constitutional principle of the Free Church. This can be demonstrated by looking at the documents admitted by the Defenders to be the constitutional documents and those expository thereof. This can further be demonstrated by an analysis of significant historical events in the Free Church.
6. The nature of the CROP is revealed by this material. The CROP is to continue to protest in accordance with the dictates of conscience. The CROP is to assert, maintain and defend the constitution of the Free Church. The CROP involves attempting to persuade others to one’s point of view. The CROP in the current context does not extend to lawfully taken decisions, but does extend to the right to protest against decisions which have not been taken in accordance with due constitutional process.
7. The Defenders’ pleadings reveal that they departed from the constitution by denying the minority their constitutional right to continue their protest.
8. As a result of this departure from the constitution the Defenders are no longer entitled to enjoy the benefit of the trust property held for behoof of the Free Church.
9. The Pursuers’ actions in the period in question amount to and assertion of their right to continue their conscientious protest against the unconstitutional imposition of the will of a majority.
10. On the basis of these submissions he moved the following disposal of the case:
a. To find the Defenders’ averments irrelevant and lacking in specification
b. To repel the Defenders’ pleas
c. To grant decree de plano in favour of the Pursuers, or alternatively to put the matter out to order for determination of what further procedure might be required for the Alternative Claim.

Here endeth Mr Dawson’s submissions (at 3.15pm on the seventh day).

Mr John Wright QC for the Free Church of Scotland

Mr Wright indicated that the arguments he would advance were in three broad areas – 3 reasons why the Pursuers should not be allowed to proceed.
1. the Pursuers’ proposed method of identifying fundamental principles of the Free Church of Scotland are not in accordance with the approach taken in Bannatyne which was firmly based on what the founders of the Church publicly expressed.
2. Even if the pursuers’ method were acceptable, their assertion that there is a fundamental principle of the Free Church of Scotland involving a right to continue protesting indefinitely within the Church cannot be accepted.
3. In any event, the Pursuers are unable to establish that the Defenders have departed from such a fundamental principle.

He resisted the decree the Pursuers were seeking. The Pursuers have not referred to the Defenders’ explanatory averments on admissions, far less the Defenders’ positive averments, so they do not have a proper basis on which to advance these pleas. Also the defenders are asking for absolvitor, because the Pursuers’ case fails before ever getting to 1995.

Introductory points
The Pursuers have to establish a CROP as a fundamental principle. It is not enough to establish a right of protest, or a constitutional right of protest, or even a CROP. They have to establish a CROP as a fundamental principle and they have to establish departure from that fundamental principle.
It should be remembered that the Pursuers’ argument could be made however small the minority and however minor the matter giving rise to the dispute. The argument is all based on freedom of conscience, and one person or a small handful may conscientiously consider a matter to be important. [Lady Paton suggested the colour of hymn books, to some hilarity in her Court.] This case does just show that the Pursuers’ view of the importance of matters is to rule. This was graphically illustrated earlier by Mr Dawson claiming the Defenders didn’t understand how important the Pursuers’ view was.
It is very surprising that in something more than 150 years of this Church, the pursuers have not been able to refer to anyone, not even themselves expressing this fundamental constitutional principle of the CROP! Particularly within a setting in which it is very evident there is a developed sense of legal procedure. The closest anyone comes is MacQueen and followers who claimed a constitutional right of protest.
The CROP appears to be a recipe for prolonged internal dissention to be resolved by the minority getting their way (which may create another minority who may disagree), or by the Court awarding the whole assets of the organisation to the minority! The duty is to go on protesting until the matter is settled to their satisfaction. “Getting their way” is getting the Pursuers to accept that their consciences are clear. In their view, error being remedied appears to mean, in this case, getting the sort of investigation that satisfied them. A Church which holds Spiritual Independence so highly wouldn’t consider such a fundamental principle as CROP, or if it did, would surely say so.
I mentioned awarding the whole assets, but there is also the Pursuers’ sharing situation. The Defenders say there is no legal basis, but even if there were, the prospect seems to be one of division and dissention followed by a damaging splits of assets. Donors would not donate with these possibilities in mind.
The Pursuers say this prolonged dissention is not their fault, because they are right. But the principle for which they argue is based on their conscientious view that they are right. Of course, from time to time there could be two opposing conscientious views (indeed there might be more that two). The Pursuers say that this has happened in the past, but what they have pointed to are the great historical divides on principle, not disagreement about the right to go on protesting because you think a disciplinary investigation hasn’t been sufficiently investigated.
Protest was the means of raising disagreement on principle. It was not the principle itself.

Lady Paton: The extent of protest in this case is to obtain a judicial ruling?
Mr Wright: The Pursuers are not saying they will stop at a judicial decision. They want remedy of error: “If the wrong protested against remains and is not remedied the right of and duty to protest remains otherwise the relief to conscience afforded by the right of protest is meaningless” and “It logically follows that faithful adherence to their ordination vows by the office-bearers of the Church requires them to protest continually against error by all lawful means until the Church acknowledges and remedies its error.”

The Court adjourned until Tuesday 2nd November at 10.30 am.

Disclaimer
An advert appeared in today’s Scotsman for a Head of External Relations for the Scottish CROP Research Institute. I deny all responsibility for the said advert.

Alex MacDonald
Media Officer