Special Commission Report/ Edinburgh Presbytery Overture


This was the second major item at the Commission. The Special Commission was set up by the 1998 General Assembly with the task of maturing proposals for bringing about reconciliation and peace within the Free Church. The Overture from the Presbytery of Edinburgh and Perth was printed in our July issue and amounted to a drastic attempt to secure peace by forcing compliance with a certain understanding of the 1995 finding regarding allegations against Professor Macleod. As they overlapped these two items were debated together. The Commission of Assembly passed an amended version of the Special Commission's Report, adding to it the Edinburgh Overture from which the three threatened libels against the Rev's Maurice Roberts, William Macleod and David Murray had already been dropped.
Below we give a very brief commentary on these proceedings. Many of the Special Commission's proposals were unexceptional and without controversy and for that very reason are unlikely to contribute anything towards solving our problems. The Commission's approving of the Edinburgh Overture however is of such significance constitutionally and practically that we give the text of each finding followed by a short comment and the relevant section of the lengthy dissent and protest that was submitted at the Commission by those who disagreed with its finding.

Special Commission
It was obvious to all that the Special Commission had not been able to tackle the major problem in the Church. The Commission of Assembly followed the Edinburgh Presbytery's agenda to ensure that "peace" would prevail. Critical references to the FCDA were inserted in the deliverance and all references to Principal Macleod were deleted from the Report by ruling that they were outwith the remit of the Special Commission. An Overture from the Presbytery of Edinburgh and Perth called for a line to be drawn under the whole matter, destroying the documents and stifling the FCDA. No more mention must be made of the controversy surrounding Principal Donald Macleod and anyone who does so will be disciplined. This ill thought-out Overture was then accepted. Immediately a 32-point Dissent was registered by members of the Commission who support the Free Church Constitution alleging the Church had departed from that Constitution in a number of important areas. No longer can these vital matters be raised anywhere. Men are not even allowed to defend their own good name. The younger men ruled the day and the folly of Rehoboam sprang to our minds. The "Peace Commission" Report ended up by producing a finding which had little to do with peace.

Leadership but no Peace
Certainly the Church has lacked leadership recently. Caught between a rock and a hard place it has struggled on because there has been little willingness to address the real problem. At last a form of "leadership" has emerged. Sadly though, it involves the denial of liberty of conscience and of free speech. It means the abandonment of the Establishment principle and tyranny in the Assembly, which must be obeyed on pain of censure. Leadership it certainly is, but peace it is not. When the Edinburgh Overture was adopted, a protest was lodged by several members of Commission which concludes with these words, "For these and other reasons, we protest, that we and all other office-bearers and members of the Church shall not be committed by the said resolution to any action that may be taken thereupon, and shall be at liberty to oppose all such action by every competent means" (The words of Dr James Begg, 1867).

Overture from the Presbytery of Edinburgh & Perth
  1. The Commission of Assembly note the finding of the General Assembly of 1995 on the Supplementary Report of the Training of the Ministry and Admissions Committee concerning Professor Donald Macleod. They note that, four years having passed, no one has sought, in terms of that finding, to pursue the matter in the Church Courts at the risk of being themselves censured as slanderers; instead, there has been a great deal of agitation by some and there have been attempts to raise the matter with reference to the 1996 Sheriff Court trial of Professor Macleod in a way found to be incompetent by the Presbytery of Edinburgh and Perth and the Southern Synod. Therefore, the Commission of Assembly declare that any opportunity for private action in regard to this matter in the courts of the Church now ceases. They instruct all officebearers and members to abide by the 1995 finding, and furthermore not to pursue this matter now or henceforth in any form whatsoever.

    Comment. That such drastic action is deemed necessary indicates that something fundamental was wrong with the 1995 finding. Attempts are being made to apply the consequences which flow from a judicial finding to what was surely only an administrative one, for the Assembly in 1995 did not act as a court of justice in this matter but simply adopted the report of a committee without examining any of the evidence. If Professor Macleod had been tried and found not guilty by a church court then that would have been the end of the matter legally (although even then, if new evidence was discovered, a further case might be warranted). It is an indisputable fact that many individuals have sought to pursue this matter in church courts over the last four years but have found themselves blocked, usually on technicalities. The 1995 finding has been improperly employed to prevent the proper examination by due process of many matters arising after that date. There is simply no provision in our Constitution for the closure of matters in such an arbitrary and absolute way as this.

    Dissent
    1.1 It is incompetent in that the Finding of the General Assembly cannot properly be construed as covering matters unknown at the time of that finding or arising subsequent to that finding or not directly relating to the subjects forming the background to that finding. 1.2 It is incompetent in that if an individual be alleged to have slandered another, then there is provision for dealing with this in terms of the Form of Process and a person so accused is entitled to the protection of a trial carried out in terms of the Form of Process. 1.3 It is incompetent in that the 'Matters' referred to in paragraph one of the finding are not clearly defined and are therefore capable of various constructions. 1.4 It is incompetent in that it is not true to say, in relation to the matters relating to allegations against Professor Macleod prior to the Assembly Finding that 'no one has sought, in terms of that Finding, to pursue that matter in the Church Courts at the risk of being themselves censured as slanderers'. 1.5 It is incompetent in that many of the matters which arose out of the Sheriff Court trial arose or first became evident after the finding of the General Assembly in relation to allegations against Rev. Professor Donald Macleod. In particular, Professor Macleod's allegations of conspiracy were not before any Court or Committee of the Church prior to the finding of the General Assembly. 1.6 It is incompetent in that there are serious allegations that the ToM did not thoroughly examine all the available evidence and no primary witnesses were called re Australia. (Special Commission Report 1999, 4.2). 1.7 It is incompetent to close a case for all time without it being judicially heard as there is always the possibility of fresh evidence or concern over possible defects in the original administrative finding arising. No case has been judicially dealt with and no evidence has been before any court of the Church. 1.8 It is incompetent in that it is improper and unconstitutional for the Commission to impose a prohibition or interdict on any action to which the Form of Process gives a right.

  2. The Commission of Assembly note the finding of the Commission of Assembly meeting on 21st June 1995 that "The Commission of Assembly direct the Training of the Ministry Committee to forward all papers relating to the allegations made against Professor Macleod to the Principal Clerk of Assembly, who shall hold them in retentis for four years. To this end the Training of the Ministry Committee are instructed to recall all such papers circulated to past and present members of the Committee". Ample opportunity, therefore, having been given for any new evidence to emerge, and none having been forthcoming, the Commission of Assembly now instruct the Clerk of Assembly to destroy all these papers forthwith.

    Comment. This is a move at once decisive and yet vain. Why destroy evidence which presumably favours Professor Macleod's case? And what does "destroy all these papers" amount to when in most cases they can be easily resurrected and when significant details they contain are already in wide circulation privately and publicly?

    Dissent
    2.1 It is incompetent in that the finding of June 1995 was a finding of the Commission of Assembly which finding was declared by the General Assembly of May 1996 to have been questionable legally and which was superseded by a finding of the said Assembly to have the papers referred to gathered in and held in retentis by the General Assembly Clerk, and to note a finding which has itself been superseded is improper and in the context indicated, unconstitutional.
    2.2 It is incompetent in that no evidence has been adduced that no new evidence has emerged in relation to allegations against the Rev. Professor Donald Macleod.
    2.3 Destruction of the papers referred to would leave the Church defenceless against allegations of improper and/or illegal behaviour in the event of a civil or criminal legal action in the courts of the land or in relation to the European Convention on Human Rights.
    2.4 It is incompetent in that it is questionable whether the Church has clear legal title to all the papers held by the General Assembly Clerk in terms of the General Assembly Finding of May 1996.
    2.5 Destruction of the papers held by the General Assembly Clerk is likely to be counter-productive in that many of the papers are merely copies of originals not in the possession of the Church and destruction of the Churchıs copies would tend to provide an incentive for publication of fresh copies.
    2.6 Destruction of the papers held by the General Assembly Clerk would be liable to be construed by the general public as 'destruction of the evidence'.

  3. The Commission of Assembly, acknowledging that the Free Church of Scotland holds to the Establishment Principle and accepts "the magistrate's just and legal authority...from which ecclesiastical persons are not excepted" (Confession of Faith, chap. XXIII, para. iv), recognise that the proceedings of the 1996 Sheriff Court case concluding in the acquittal of Professor Donald Macleod are, like the proceedings in any State court, under the sole jurisdiction of the State, and that the Church has no jurisdiction in those proceedings. Wherefore, the Commission of Assembly resolve not to comment upon or raise any matter in connection with the proceedings of the said Sheriff Court Trial.

    Comment. The conclusion does not follow from the premise. The separate jurisdiction of civil courts should never prohibit the church from commenting upon or raising any matters in connection with their proceedings when proper, particularly when those proceedings have been prejudicial to her own interests, the interests of her ministers and members, or the interests of truth and justice. In adopting the Special Commission Report, the Commission of Assembly requires "all within the Church to desist from making such allegations (as conspiracy) unless they do so by means of due process" yet here it contradicts itself by resolving "not to comment" on matters connected with Professor Macleodıs trial in which the defence of conspiracy was led by his counsel and upheld by the Sheriff. Our Constitution does not bind us to silence but to speak up against injustice.

    Dissent
    3.1 It is incompetent in that if it be drawn to the attention of the Church or alleged to the Church, that any of its officebearers is guilty of bearing false witness or making untrue allegations, the Church has a duty to act.
    3.2 It is incompetent in that no matter where false witness may have been committed, it is proper to bring allegations thereanent, which can be properly substantiated, in terms of the Form of Process.
    3.3 It is incompetent in that Act 28,1978 states "The General Assembly accept the following statement of principle in regard to disciplining procedures. It should be recognised that Church discipline is not of precisely the same order as civil, and the Church cannot therefore divest itself of the responsibility of ascertaining facts and their relevance. No proceedings or judgement of a civil (or criminal) court can be regarded as a substitute for due ecclesiastical process though such judgements may help in determining whether a process is required. Church courts must form their own judgements independently of proceedings in other courts". The finding implies the Erastian tenet that Church Courts are subordinate to Civil courts in their own province.
    3.4 If the Church be aware that any of its office-bearers or office-holders or employees have borne false witness in testimony in a Court of the land and the Church conceal that fact those guilty of concealment are themselves liable to be found guilty of a criminal offence.
    3.5 It is incompetent in that the Church has a duty to protect the good name of its employees, office-bearers, office-holders and Committee members from unjust and untrue allegations in relation to their duties on behalf of the Church, especially when the Church itself is in possession of the documents which prove their innocence.

  4. The Commission of Assembly require that if any church court receives information regarding an individual under its jurisdiction to the effect that he has not complied with the foregoing instruction to all members and office bearers of the Free Church of Scotland to abide by the 1995 finding and the foregoing instruction not to pursue this matter now or henceforth in any form whatsoever, then that church court shall, after duly citing and hearing parties, determine if contumacy has been proved. The Commission of Assembly is hereby granted full powers to hear and dispose of such references, appeals, petitions, dissents and complaints as may arise from the above proceedings, both at its stated meetings and at any other meetings which have been called with due notice.

    Comment. How pervasive is this "ban" intended to be? Are private conversations or correspondence to be reported to church courts? Is certain literature now placed on an Index of banned materials? It would seem that those ministers and members who are still labelled as liars and conspirators can now expect no help but only discipline if they try through church courts to clear their names as the ninth commandment requires them to do. The above is more suited to a police state than a branch of Christ's church.

    Dissent
    4.1 It is incompetent in that the construction placed on the Finding referred to is unconstitutional.
    4.2 It is incompetent in that there is no such 'foregoing instruction to all members and office-bearers of the Free Church of Scotland' (as is referred to in 4).
    4.3 It is incompetent in that the 'matter' referred to in paragraph 4 is not defined.
    4.4 It is incompetent in that it is contrary to the Form of Process to require Church Courts to act on "information" received, and the Commission in issuing such a requirement is giving a "gossip's charter" to all and sundry.

  5. The Commission of Assembly deplore the fact that the organisation known as the Free Church Defence Association (FCDA) has canvassed this matter outwith the Courts of the Church. They declare that the FCDA has no authority to use the name "Free Church" and has no locus whatsoever in the properly constituted proceedings of the Courts of this Church. They instruct all officebearers and members of this Church involved with the FCDA, or any similar organisation, to cease canvassing outwith the Church matters properly dealt with by church courts, and to devote their energies to the work of the gospel within the Church. The Commission of Assembly require that if any church court receives information regarding an individual under its jurisdiction to the effect that he has not complied with the foregoing instruction, then that church court shall, after duly citing and hearing parties, determine if contumacy has been proved. It is understood that reference to the FCDA above includes reference to any similar organisation canvassing this matter outwith the Church. The Commission of Assembly is hereby granted full powers to hear and dispose of such references, appeals, petitions, dissents and complaints as may arise from the above proceedings, both at its stated meetings and at any other meetings which have been called with due notice.

    Comment. The FCDA would dispute that they have been "canvassing" church matters outwith the courts of the Church. Rather they have sought to inform our people regarding matters not allowed for discussion and investigation within our church courts. Professor Macleod has assiduously "canvassed this matter" in the media since October 1994 and done all that he could to keep the same out of church courts. Furthermore, we note that "this matter" referred to in the first sentence has grown into "matters" by the third sentence; such a finding could be used to "gag" the discussion of anything at all outwith church courts! The denial of free speech accomplished here would mean that we are no longer able to speak the truth and thereby we are forced by intimidating threats into a sinful silence. Is it really "contumacy" to raise a voice on behalf of truth and righteousness? What God commands no power on earth may lawfully forbid.

    Dissent
    5.1 It is incompetent in that the 'Matter' referred to in paragraph 5 is not defined, nor is the manner in which the Free Church Defence Association are alleged to have canvassed this matter outwith the Courts of the church. Moreover the allegations of a conspiracy were being very widely canvassed outwith the Courts of the church long before the Free Church Defence Association made their first public statements since 1900.
    5.2 It is incompetent in that it is said that anyone canvassing matters outwith Church Courts will be disciplined. The finding of Commission implies that in the Free Church a person cannot speak about or discuss anything therefore outwith Church Courts.
    5.3 It is incompetent in that the effective proscription of any organisation without it being conclusively demonstrated that its constitution is at variance with the constitution of the Church is unconstitutional, moreover the Free Church Defence Association has existed for most of the lifetime of the Free Church itself, the raison d'etre of the Association being to defend the Constitution of the Free Church of Scotland. The method by which it is proposed to deal with alleged offences by alleged members of the Free Church Defence Association is contrary to the Form of Process and therefore unconstitutional.
    5.4 The Commission has failed to take note that the real divisive influence in the Church was the emergence of Free Concern with its Memorial in Oct. 1996. The Free Church Defence Association has not been proactive, but reactive, first to the emergence of Free Concern and then to various events/findings of Church Courts which could be construed as posing a possible serious threat to the Constitution of the Church.
    5.5 It is incompetent to find the Free Church Defence Association guilty of misconduct without trial and therefore without trying the officebearers for following a divisive course from the discipline and government of the Church. If it be established that canvassing these matters outwith the courts of the Church is against the constitution of the Church, and if the Free Church Defence Association is suspected of guilt therein, then the remedy is to try the office-bearers of the Free Church Defence Association in terms of the Form of Process.

  6. The Commission of Assembly instruct all ministers in pastoral charges to give notice of these findings (1-5 above) to their congregations by pulpit intimation before 31st July of this year.

    Comment. This dictatorial instruction obliges men to do what their consciences before God may not allow them to do, believing that the findings arrived at by the Commission are incompatible with the Word of God and the Church's Constitution: "Although the General Assembly is invested with the power of regulating the whole action of the Church in its Synods, Presbyteries and Kirk-Sessions, still it is not regarded as having any lordly or absolutely binding authority. It is expected to act ministerially under Christ, and to carry out such rules as appear to harmonise with His own instructions in His Word". (Practice, p.82)

    Dissent
    6.1 It is incompetent in that the giving of such Findings by way of pulpit intimation is totally unconstitutional and inappropriate in the context of public worship in view of the subject matter and the length of the Findings.

  7. It is incompetent in that the actions of the Commission will not bring peace in that:
    7.1 The fama surrounding Professor Donald Macleod was not quietened by the 1995 finding and can only be increased by the Church's perceived unwillingness to allow any open trial of Professor Macleod to take place under any circumstance whatsoever.
    7.2 The proposed requirement upon Church Courts to investigate all "information" reported in the proposed legislation would lead to the existence of a network of "informers". It would create a climate of bitter suspicion and hostility, exacerbating present difficulties.
    7.3 The way for bringing about peace in the Church is to allow the proper disciplinary procedures laid out in The Form of Process to be followed without them being frustrated by some within the Church.

    Furthermore, we, the subscribers, for ourselves, and on behalf of all others who may adhere, do protest against the resolution relating to the Overture from the Presbytery of Edinburgh and Perth moved as an addendum to the Report of the Special Commission now adopted by this Commission, and that on the following, among other grounds:
    lst, because the resolution, as adopted, implies an abandonment and subversion of a constitutional principle of the Free Church of Scotland and is contrary to the Form of Process.
    2nd, Because the resolution, as adopted, is ultra vires of this Commission.

    For these and other reasons, we protest, that we and all other office-bearers and members of the Church shall not be committed by the said resolution to any action that may be taken thereupon, and shall be at liberty to oppose all such action by every competent means.

    Any comments or questions please E-Mail me or Rev William Macleod the editor.

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