Court of Session (Day 5)

Tuesday 19th October 2004

The day began with Ruth Charteris, Junior Counsel for the Free Church completing her submission showing the irrelevancy of the FCC’s case.

9. The FCC’s claim is inconsistent with the principle of Spiritual Independence. Spiritual Independence is an essential doctrine of the Free Church of Scotland and an admittedly fundamental principle of its constitution. It is perhaps most clearly expressed in the Question put to office bearers before ordination. It was of course in protest at the civil court’s intrusion in matters spiritual that the Disruption took place. She then read the from the Questions, the Claim, Declaration and Protest of 1842 and the Protest of 1843. She said that the defenders (the Free Church) were not submitting that the pursuers (the FCC) were not entitled to bring an action of this kind, but she did submit that this particular action involves precisely the type of enquiry that the Court has set its face against (in “Mackay vs. Macleod”). She was also not challenging that issues about the extent of the constitution as a matter of fact can be brought before the civil court. These issues can arise in this type of action and also in actions by individuals, although the courts are careful to limit their enquiry into the constitution so as to avoid entering into spiritual or doctrinal issues.
She did submit, however, that the assertion of the right and fundamental principle of continued protest as apparently asserted by the pursuers, is inconsistent with the principle of spiritual independence. This inconsistency and, to a large extent, incompatibility casts further doubts on the existence of a continued right of protest (CROP) as a fundamental principle. The pursuers are asserting a right on the part of any member of the Free Church to go on and on complaining about a perceived failure of the Free Church to apply spiritual principles as incorporated into the Church’s rules and practices about government and discipline. The say that they have a right whenever they believe that the actions of the Church, such as decisions about proceeding against Professor Donald Macleod, are inadequate, not to accept the decision, and to campaign against it in conduct which would fall into the category of divisive acts and disobedience. The assertion of this right must lead eventually to questions of discipline and government being raised in the civil court. This is because either:
(1) The Church courts discipline them for their actions and they come to the civil court to complain, or
(2) Supposing they prevail and decisions are changed to their satisfaction, those of the opposing view can then start their campaign. In other words the Church can never reach finality or have peace from civil warfare without the civil court adjudicating on the spiritual decision and the spiritual principles underlying them.
The principle of the CROP eventually involves going to the civil court with matters that the principle of spiritual independence takes to the officers 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. The issue is that the minority ministers say that they were not contumacious and from Brentnall we know that contumacy connotes wilful defiance of a church court. There is not doubt room for argument as to what form of defiance is required, but that is a matter for the Church court. The pursuers are asserting a right to be disobedient. Whether this amounts to contumacy is a matter for the Church courts. The pursuers aver that any unconstitutional instruction need not be obeyed. But who is to decide, particularly where the definition of constitutionality depends on Scripture?

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. It is obvious from the pleadings that all manner of things were going on in that period which might be considered breaches of discipline, which are matters for Church courts, for example, the setting up of a rival congregation because you didn’t like the minister who had been invited to preach at the communion. The actions of the resulting Stornoway Reformed Fellowship were approved by the FCDA. Church courts were entitled to consider the exercise of their jurisdiction concerning the activities of the FCDA who organised meetings, published magazines and raised funds separate from the Free Church.

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 (Brentnall). Such cases would involve breaches of the Church’s rules or breaches of natural justice.

The defenders were asking that the pursuers’ action be dismissed and the defenders be granted absolvitor. The relevant materials as to the existence of a fundamental principle relied on by the pursuers have been fully considered in arriving at a decision as to whether there was such a principle. The establishment of a principle laid down 160 years ago, could not have more documentary proof.

FCC’s Alternative Claim
She then proceeded to deal with the FCC’s alternative claim. This says that the FCC have not departed from the constitution of the Free Church and therefore they have not lost title to Free Church property. Therefore they are entitled to a share of the property with any others who may hold to the constitution.
1. There is no support for this claim in the authorities. In Craigdallie, it was specifically stated that those meeting separately had forfeited their title. The present case is modelled on Bannatyne, but by implication a similar alternative claim was rejected by the Court. She then read extracts from that case and from others.
2. If the pursuers (FCC) are unable to establish a fundamental CROP then the pursuers are not maintaining the whole principles of the Church as they are claiming an additional one. To add a fundamental principle which was not there originally means that you are not adhering to the constitution. The church they adhere to has an additional badge. They are not acting consistently with the fundamental principle of Spiritual Independence.
3. There is no basis advanced for asking the Court to impose sharing.
4. If neither party has departed, would the donor of the trust expect it to be necessary to provide that a member withdrawing from the voluntary association chosen by him as the object of his favour is still entitled to share? There are no averments that there is any such agreement or practice.
5. The minority here admit themselves that even if they had been expelled it would not change the position with regard to ownership or possessing of property.
6. The Model Trust Deed. While not relying on this with regard to the principal claim, this is an indication of what was in view at the time of the founding of the Church. If there was a separation by at least one third of ministers in charges, then local congregational property was to be disposed of in a certain way. But it is clear that in relation to general property, the majority rules in the General Assembly.

Defenders’ Secondary Motion
This was to exclude certain passages from the Record for probation (if the case went to proof) on the grounds of irrelevancy. These included the passages relative to events from 1863-1900, as these are irrelevant and lacking in specification. Also the passages relating to the events between 1990 and 7th October 1990. These are irrelevant because they show no departure from the claimed CROP. These events arise out of one sustained attempt to have an individual disciplined. This is not a matter for this Court. It is as objectionable in this case as it was in relation to the similar history in Mackay vs. Macleod.

The FCC’s Submission
Mr Dawson, Junior Counsel for the FCC, opened by saying that the pursuers would not dispute the legal background which Miss Charteris had outlined. He would make no detailed reference to these cases.

His submission would be in 8 separate parts.

1. A number of preliminary matters which became important during the Free Church submissions.
(1) Introduction to the nature of this action and the pursuers position. Mr Dawson proceeded to read the details of who the pursuers were and who were the defenders. He indicated that the Free Church was a voluntary or non-established church. And he stated that the present action was raised following a division in the Free Church on 20th January 2000. He also stated that the essential doctrines and principles of the Church need not be written, or expressed in constitutive documents. In the present action, the pursuers lay claim to being the true representatives of the Free Church. The defenders, by their actings, have departed from the essential principles of the Church and have thereby formed themselves as a new denomination separate and distinct from the Free Church of Scotland.
The defenders (the Free Church) have abandoned a particular principle. This principle is fundamental to the nature and constitution of the Free Church. The defenders abandoned this principle by making a particular decision abut a disciplinary matter in the 1990s. the defenders denied a dissenting minority the right to continue their protest against this decision. They deemed the matter to be closed. They did so without due constitutional process, and by doing so they abandoned the constitution. As a result, the pursuers are the true Free Church of Scotland. As such, they claim in this action the beneficial interest in the property and assets held for behoof of the Free Church.
This Court has jurisdiction to determine respective parties’ rights in the Church’s property. In so determining the Court will be required to ascertain which party adhere most closely and faithfully to the essential and fundamental principles of the Free Church. Further, such determination will clarify which party is the true Free Church of Scotland.
The CROP. The issue for the Court is the determination of the identity of the Free Church. This determination rests upon an interpretation of the church’s constitutional principles. The Court will require to address the issue of whether the CROP is a fundamental and essential principle of the Free Church.
At this point the Judge drew attention to the fact that certain of the pursuers’ pleas in law had not been printed in the Closed Record. This was in addition to certain documents (such as the Confession of Faith) not having been included in their productions. These matters will be sorted out.
Mr Dawson resumed by saying that the pursuers assert that the defenders’ pleadings justify this matter being disposed of at this stage on the basis they disclose an abandonment of this fundamental principle.
(2) Disposal of the case. The pursuers are asking the Court to find the defenders’ averments irrelevant and lacking in specification and to grant decree de plano (ie. to give judgement in their favour without further procedure).
(3) The pursuers are a minority. Mr Dawson summarised the numerical position at the time of the division. There were 26 ministers (including those retired) in total suspended around the beginning of the year 2000. this was out of a total in the Free Church of 173 – 15% of the total. The FCC has currently 34 congregations in Scotland while the Free church has over 140.
(4) Trust property. The subject of the current litigation is the property held in trust for the free Church of Scotland by the General Trustees. This includes various buildings, including the Free Church Offices, the Free Church College as well as pension funds and share holdings. The outcome will have no direct outcome on congregational properties. Congregational trustees will have to take advice after the outcome of this case. There is a tacit understanding that the status quo will be maintained as far as the use of churches and manses is concerned. Certain undertakings have also been made by the General Trustees that money held in trust for the Church will not be applied for the expenses of this litigation. However, the division has led to great depth of feeling throughout the church. There have been instances where the pursuers have sought the protection of the Court in relation to particular congregational properties.

2. Pleadings. Mr Dawson indicated that it was his intention to work through the Record. It would be helpful to see the pleadings as comprising two factual narratives. The first relates to the historical development of the Free Church, and the second relates to the events leading up to the division. It is the Pursuers’ contention that the defenders’ pleadings on Record demonstrate an abandonment by the defenders of a principle fundamental to the Free Church constitution – the CROP. He then worked through the various conclusions which the pursuers are seeking.

The Court then adjourned until tomorrow (Wednesday 20th) at 11.30 am.

Alex MacDonald
Media Officer