Court of Session (Day 4)

Friday 15th October 2004

Junior Counsel for the Free Church, Ruth Charteris, continued Stage 2 of her submission by dealing with:

4. How the Pursuers (FCC) say the Free Church departed from the Right of Continued Protest.
(1) By their suspending ministers from the whole duty of the ministry on full pay.
(2) By their refusal to give members their lawful rights in the administration of Church discipline.
(3) By their continued insistence that the minority submit to decisions of the Courts of the Church, and on their refusal to do so, suspending 22 ministers.
(4) By their refusing to allow James Gracie to dissent against the appointment of the Principal of the college.
(5) By their proscribing membership of the FCDA by the vote of a passive majority

She then moved on to tying up Stages 1 and 2.

She said the pursuers’ averments are not capable of proving their principal claim that they are, and that they only are, the lawful representatives of the Free Church of Scotland and that the present Free Church is not.
Further the pursuers averments disclose that they and those adhering to them have voluntarily separated from the Free Church and accordingly have no right or title to the funds belonging to or held on behoof of the Free Church.

She made these submissions for 12 reasons (1 and 2 of which are the longest):
1. The pursuers have failed to aver what is meant by the continued right of protest (CROP). The action ought to be dismissed for this reason alone.
In the Mackay vs. Macleod case the Lord Ordinary said that a charge should be stated fully and clearly so that those against whom if is brought may have fair notice of the accusation and be enabled to meet it in arguing and in proof.
One of the difficulties in this case is that the defenders (Free Church) quite simply don’t know what the pursuers mean when they talk about the right of continued protest and it has been extremely difficult for them to meet the charge against them.
In Mackay vs. Macleod two judges complained that in the documents referred to them they couldn’t find any intelligible statement as to what exactly a protest is. The “continuing” part is easier to define. Whatever a protest is, it must continue until a majority see the error of their way at which point someone of the opposing point of view can take up the gauntlet and so it goes on!
The real difficulty in definition is with the word “protest”. The pursuers’ possible meanings range from the right formally to register disagreement, to the right to go on protesting without limitation to the means, including disobedience to the Church courts.
The Pursuers refer to protests at the time of the Reformation and the Disruption, but it is not clear what characteristics the pursuers intend to apply to the internal protests of the Free Church today. One might also take from the Disruption that a protest is a formal statement of disagreement preparatory to or in the course of separating.
The pursuers seem to be saying that the subject matter of the protest must be constitutional, but they give very little clue as to the means of exercising a protest. They say that protest against error is by all lawful means. But is it lawful according to the law of the Church or the law of the land?
She also noted two peculiarities where the pursuers equate protest with dissent with reasons. At this point the Judge noted that the only reference to protest in The Practice was to the Protest of 1843.
Miss Charteris also indicated that the pursuers made no attempt to define the CROP of to rank it with reference to other obligations which might compete with it. There is no intelligent statement of what a protest is far less a CROP. It is impossible for the defenders to meet the accusation against them. The pursuers’ action fails to get off the ground.

2. The pursuers have failed to identify the CROP as a fundamental principle of the Free Church.
a. She looked at 5 key guidelines in case law as to how one identifies fundamental principles.
(1) The test is to ascertain the intentions of the original donors of the Trust.
(2) The onus is on the pursuers to clearly identify the principle and where it is allocated fundamental status. There is a particular onus where a minority are seeking to establish a fundamental principle which they don’t even aver has been previously recognised. It is admitted by the pursuers that there has been no overt change to the constitution.
(3) In order to ascertain the intentions of the donors, one must look at what the donors have themselves said.
(4) Where, in the particular case of the Free Church, do we look to ascertain the intentions of the donors? There is a common thread in the cases – Dr Chalmers’ Affectionate Address, Claim of Right (1842), the Protest (1843), the Formula and a Pastoral Address.
(5) Where we don’t look to ascertain the intentions of the donors – the intentions of the donors must be gathered from the time the Church was set up and not later. We must also look to the authoritative declarations of the Church and not the opinions of individuals.

b. She then proceeded to apply these 5 key guidelines to the pursuers’ averments.
(1) The Protestant Religion. The averment that the CROP is a principle of the constitution of the Free Church because the fact the Free Church is part of the Protestant religion is a hollow averment. One is unable to deduce that by being part of the Protestant religion one has a CROP against internal church disciplinary decisions. There is no specification of where one can find this right. The general origin of a Church in protest tells us nothing about the right to go on protesting against the decisions of ones own church. It in fact indicates the opposite – it tells of dissatisfied members leaving to set up their own church.
(2) The Protests of 1842 and 1842. the pursuers give no indication as to where to look in these documents. These documents illustrate protests, but as the pursuers themselves aver, it is protest by the Church against the State, not a dissatisfied minority against the rest of the Church.
(3) Formula & Questions (Ordinations vows). There is clearly an obligation to defend the discipline of the Church, but that is one obligation among many and the promise to do so must be taken in context. There is also a promise to submit and not to follow a divisive course, to submit to several judicatories, to submit willingly and humbly in the spirit of meekness to the admonitions of the brethren and to maintain the unity and peace of the Church. There is no indication that the obligation to defend discipline is in a character of its own. There is no basis for saying that it amounts to a CROP which overrides all the other obligations.
(4) Form of Process. Even if the Form of Process were a constitutional document and even if you could identify a breach of the Form of Process, it doesn’t follow that this is a departure from fundamental principles.
(5) Act of Assembly IX 1851. The pursuers admit that this is not part of the constitution.
(6) Westminster Confession of Faith. Chapters 31.4 and 20.2. There is no mention of Protest or the CROP in either place.
(7) The Practice. The Practice isn’t part of the Constitution.
(8) James Begg and the FCDA (19th Century). This is irrelevant. They cast no light on the intentions of the founders of the trust as to fundamental principles. The Courts have been clear that it is no assistance to consider the activities of individuals. It is not averred that that there was any assertion of CROP as a fundamental principle in that period. The fact that the majority allowed protest doesn’t go to show that protest was a fundamental principle.

3. The pursuers failed to aver any obligation to answer reasons for dissent

4. The Pursuers fail to aver the Free Church did not accord the right of protest or dissent. Instead the pursuers make numerous averments that they dissented and protested against decisions. They were allowed to lodge dissents and protests.

5. There is insufficient material from which an actual or proposed alteration of the constitution of the Church can be inferred. There is no new or different church, no new name. The operation of her courts have not changed. It is not averred that there is any alteration or proposed alteration of the constitution or her formularies. No adoption of new principles. No decision to depart from the constitution. This is contrasted with the 1900 situation. In 1891 if a Free Church minister had preached against predestination, he would have been in breach of discipline, but in the UF church in 1901 he wouldn’t. However in the present situation, a disciplinary matter in 2004 would still be treated according to the same rules as in 1994.

6. There is a failure to aver any actual or proposed diversion of trust property. There is no averment that the defenders are putting funds to a different church or are mixing the funds.

7. A failure to proceed in accordance with the constitution does not equate with 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.

The court adjourned until Tuesday 19th at 10.45 am.

Alex MacDonald
Media Officer