Court of Session (Day 3)

Thursday 14th October 2004

Today Ruth Charteris (Free Church Junior Counsel) completed the first part of her submission, ie. the examination of the law relevant to the departure from fundamental principles of a non-established church; and she began to examine the FCC’s “continued right of protest” and how they see that the Defenders (the Free Church) departed from the Constitution.

She first concluded her examination of the Mackay vs. MacLeod Case (the Inverness Manse of the FP Church). The principles she drew from the case were:
1. Where an accusation is made that a church has interfered with liberty of conscience, it needs to be stated fully and clearly with distinct and specific averments.
2. The Court could not find any intelligible statement in documents referred to in Court as to what exactly Protest is, or that it was a fundamental right.
3. If the Synod erred about the right to protest, it didn’t involve a departure from the Constitution.
4. The Westminster Confession doesn’t give a right to protest.
5. One has to look at how the donors of the Trust have defined the Trust purposes and ask if they had made the question of the attitudes of beneficiaries to the effect of protests the touchstone by which to test their right or entitlement.

She then proceeded to the final case, Brentnall vs. the FP Church. This case illustrated: 1. The limited jurisdiction of the Civil Courts in dealing with matters of ecclesiastical discipline.
2. The remedy open to individual ministers who say they have been wrongly disciplined.
3. The nature of contumacy – wilful disobedience of a Church Court.
4. The range of views within the FP Church as to the meaning and extent of Protest and its effects. Even the most liberal view is that it is simply a way for a minister or member to salve his conscience by dissociating himself from a decision of the Synod, without challenging the its authority or showing disrespect to it.

She next gave a number of points to draw the various cases together
1. Craigdallie, Craigie, Couper and Mackay all involve trusts for congregations where a trust for a congregations is based on adherence to a particular Church as opposed to the governing body. The issue is the same as in the present case.
2. Apart from Mackay and Brentnall, all are concerned with purported unions with other Churches. Although refusal to join might have involved a refusal to obey the Church’s governing body, there is no support for departure because of a course of conduct, far less because of a case of discipline.
3. None of the cases apart from Brentnall are discipline cases.
4. Where it has been alleged that there has been a departure from the original purposes of the trust, the onus is on the party making the allegation to make clear averment to the original standards and principles of their association, and how it is that the defenders have departed from them.
5. The Civil Court is concerned with what the fundamental principles of the Church are, only to the extent that this enables it to resolve the question of patrimonial right.
6. But the Courts have been concerned to clearly identify the principles to which the founders gave fundamental and essential status (eg. The Establishment Principle and adhering to the Westminster Confession in Bannatyne). A fundamental principle must be expressed. Alternatively, at the very least it must be an implication which has been accepted and has been made fundamental from the outset.
7. The cases won’t help at all in identifying the question of Protest as a fundamental principle. In the search for fundamental principles in Bannatyne, Spiritual Independence is mentioned, but that is all. Mackay casts extreme doubt as to the existence of a right of protest, far less a continued right of protest.

Next came Stage 2 – an examination of the FCC’s “continued right of protest” and how they see that the Defenders (the Free Church) departed from the Constitution. In this she intended to bring together 4 things:
1. What the Pursuers (FCC) say about the meaning of the right of continued protest.
2. What they say about the fundamental principles of the Free Church.
3. Where the Pursuers say a fundamental right of continued protest is to be found.
4. How they say the Defenders (Free Church) departed from it.

At this point she also pointed out that the Pursuers had given no explanation in two of their conclusions as to why they should be granted.

1. Meaning of the right of continued protest. The FCC say:
· It is a fundamental, essential and distinctive principle.
· It can be exercised by a minority or a majority.
· Faithful adherence to ordination vows involves a requirement to protest continually against error by all lawful means, until the Church acknowledges and remedies its error.
· It is not to be equated with actions which disturb the peace of the Church.
· It is not a dissent with reasons.
· It has to be on constitutional grounds. However, the Pursuers take considerable trouble to detail disciplinary breaches.
· It is accorded to any member of the Free Church.
· It is not exhausted by tabling a Protest.
· It is not equated with defiance of Church Courts.
· It is addressed not to man but to God.
· The concept of an explicit right of continued protest falls to be distinguished from the on-going duty to protest against error and sin in the Church as conferred by the solemn engagement between the Church and its office bearers at their ordination, which is itself a constitutional principle.
· It does not inherently entitle one to disregard or disobey the directions of Church Courts.

2. What are the fundamental principles of the Free Church? The Pursuers list the following as constitutional documents of the Free Church:
· The Formula
· The Westminster Confession
· The Larger and Shorter catechisms
· The Directory of Public Worship
· The Form of Church Government
· The Claim, Declaration and Protest 1842
· The Protest 1843
· The Act of Separation and Deed of Demission 1843
· The First and Second Books of Discipline
· The Form of Process
· The Acts of Assembly of the Church of Scotland prior to 1843

3. Where do the pursuers aver the right of continued protest is found?
· The Westminster Confession
· The Formula
· The Ordination vows
· The Constitution of the Free Church
· It is inherent in the Constitution
· It is an implication from the right to protest given in The Practice

At this point the Court adjourned to meet tomorrow (Friday 15th) at 10.45 am.

Alex MacDonald
Media Officer