Commission finding on FCDA
The October 1999 Commission of Assembly required the FCDA
to disband. In response, the FCDA sent a communication signed by over
thirty ministers who were office-bearers of the FCDA, indicating that
the FCDA does not intend to disband at this stage and, further, expressing
their support for the editors of Free Church Foundations magazine.
The response of the Commission, in a lengthy finding, has been to call
for all signatories of that document who fail to withdraw their support
from the FCDA to be libelled. The significant point at issue is that
their alleged offence seems to be one of disobedience to an order of
Commission; no argument has been given as to why membership of the FCDA
should not be considered legitimate, in terms of the Church's Constitution.
Some of the points raised in the letter merit consideration.
1. The finding argues that it is wrong for "the office-bearers
of the FCDA to pledge themselves to continue the same course of conduct
which has been repeatedly condemned by the General Assembly and its
Commissions" but ignores the fact that in the 1843 Free Church such
was the declared intention of Dr. James Begg. In 1867 he not only dissented
but protested and pledged himself to use all legitimate means to have
unconstitutional findings reversed. The Commission has not demonstrated
that membership of the FCDA is contrary to the Constitution of the Free
Church of Scotland; in fact the FCDA exists to promote adherence to
the Constitution.
2. Those FCDA office-bearers present were summoned there and
then to the bar of the Commission (ie. placed "in the dock"). It is
very much a moot point as to whether those who were taken from the public
benches were validly summoned.
3. The Commission described the FCDA's response to the October
Commission's demands for the disbandment of the FCDA as being made "under
the cloak of submission" - such a statement implies ill motivation
or deceitfulness on the part of the FCDA and is unworthy of the Commission
of Assembly. The Commission appear to be using contumacy as a catch-all
charge which will avoid the need for examination of the legitimacy of
their instructions. The points which should be at issue are the constitutional
legitimacy of belonging to the FCDA and the right to publish the statements
which appeared in Free Church Foundations.
4. Dealing with the matter at the Commission of Assembly effectively
denies those charged the right of appeal to a higher court and is contrary
to the general practice of the Church and to natural justice. The precedents
for such action are slim and are at best questionable.
5. The Commission directed that a "pastoral letter" should be
sent to those whose names had been appended to the statement from the
FCDA. In that "letter" they draw attention to what they describe as
"what has been done by various General Assemblies and their Commissions
to address the concerns that have [been] expressed regarding matters
that have been recently controverted among us". There is no evidence,
however, that the various General Assemblies or Commissions have done
anything meaningful to address such concerns - rather the opposite,
in that many of those who have attempted to bring those matters before
the Assembly and its Commissions have experienced sanctions, censures,
attempts to remove them from office or prevent them gaining office,
and obstruction in bringing forward their concerns in legitimate ways
and appropriate form. The letter draws attention to the ways in which
it is alleged that the Church has addressed concerns on certain matters.
The 1995 Finding
This has been used to preclude discussion of an undefined "matter".
The basic point at issue here is whether the Finding of 1995 was judicial
or not. A judicial finding is (to put it simply) one in which someone
is formally libelled (charged with an offence) and tried on those charges.
Once a verdict is reached the individual cannot be tried again on the
same charges. If the 1995 Finding were a judicial finding, then it would
have to stand, unless there were some significant new evidence or evidence
that the matter had been seriously mishandled. No charges were ever
laid, however, in the matter to which the 1995 Finding related and the
individual involved was never libelled. He has therefore not "tholed
his assizes" and the finding cannot be considered a judicial finding.
It is therefore quite proper to raise again the matters referred to,
providing it is done in the appropriate manner spelled out in the Form
of Process which forms part of the Constitution of the Free Church
of Scotland.
There is, however, another matter which relates to the 1995 Finding.
It cannot possibly be considered to be binding in relation to matters
which had not yet arisen at the time of the finding, yet it has consistently
been used in an attempt to stifle any attempt to investigate allegations
against the individual involved, even although the substance of those
allegations occurred after 1995. These facts indicate that, sadly, the
Free Church has not handled this matter in a way which is in accordance
with its own Form of Process or indeed with natural justice.
Allegations of Conspiracy
The letter states that "ministers in good standing are precisely that
- ministers in good standing, and as such, welcome in the church". Such
a statement, however, does not address the root of the problem. In Edinburgh
Sheriff Court in June 1996 Sheriff John Horsburgh declared that several
named ministers and elders of the Free Church of Scotland had conspired
against the accused in the case before him. Sheriff Horsburgh's remarks
and finding were on the basis of evidence given by at least two Free
Church ministers and several Free Church elders. Much of the evidence
related to alleged procedures and statements at meetings of the General
Assembly's Training of the Ministry and Admissions Committee. Those
so accused had never been seen by Sheriff Horsburgh or allowed to testify
in court. Had they been permitted to testify they would have been able
to point to documentary evidence to prove that the testimony against
them was false and contrary to the facts. After the trial, the accused,
who had been declared not guilty, called in the public press for the
alleged conspirators to be dismissed from office in the Church. The
reaction of the Finance, Law and Advisory Committee was to attempt,
without trial, to dismiss the Clerk to the Training of the Ministry
and Admissions Committee and several further attempts have been made
so to do, the latest this year. Since the conclusion of the trial several
of the alleged conspirators have been censured without trial and removed
from Committees and two of them have been placed under such pressure
that they have felt it necessary to leave the Church. Nothing has been
done to investigate whether or not the allegations of conspiracy made
against those men are true or false. A fama clearly exists against
them. Efforts (largely successful) have been made to exclude them from
the power structures of the Church. Yet the principal action of the
Church has been to order the destruction of the evidence which would
prove them either guilty or innocent.
Liberty of conscience
The letter states that "if any individual feels that it is impossible
for them to live with the decision of the majority, the church acknowledges
that the honourable course in such matters is to leave the church".
This, however, does not represent the historical Free Church point of
view. It is true that a competent judicial finding cannot be revisited,
but in the case of a non-judicial finding it is not only the right but
the duty of office-bearers to work towards the repeal of a finding which
is contrary to the Constitution of the Church as Dr. Begg's protests
make abundantly clear. If the Free Church of 1999 denies the right of
protest in this form, then it is different from the Free Church of 1843.
It has not been demonstrated that the FCDA have done anything contrary
to the Constitution of the Free Church of Scotland. The action of the
Commission in proscribing the FCDA is therefore one which denies liberty
of conscience and liberty of expression within the limits of the Constitution
of the Free Church of Scotland.
Unwanted
The letter recognises that some within the Free Church feel unwanted
and claims that over the years the Free Church has consistently acted
to respect the concerns of the minority. The reality, however, is that
the minority have been very pointedly excluded from the power structures
of the Church and denied fair opportunity to contribute to the Monthly
Record and Free magazines and to represent the Church on
the wider Christian scene.
The letter concludes by claiming with regard to anyone who is not swayed
by the "facts" it brings forward, that the Commission is duty-bound
to take action against him. This amounts to a declaration of contumacy
- without any opportunity to prove the relevance of that charge and
without any argument to that end. It is a complete fallacy, therefore,
to argue, as the "pastoral" letter does, that "this Commission of
Assembly is duty-bound for the honour and well-being of the Church to
take action against you".
6. By citing those proceeded against to appear at the bar of
the Commission of Assembly the accused are denied basic justice in that
the court hearing the case is also the body making the charges. Furthermore
there is no defined method of appeal from whatever finding the court
may reach. The Commission clearly recognised that their actions may
well be seen as unfair treatment of ministers. They felt obliged to
state: "The Commission, whilst not accepting that ministers of the Free
Church are employees, do not accept that any of its actions are in any
way unfair or unjust". The FCDA are well aware that ministers of the
Free Church are regarded as office-holders, but argue that some of the
actions of the General Assembly, Commissions of Assembly and other courts
of the Church have been both unfair and unjust. Moreover, even ministers
have rights granted to them that they will be treated in accordance
with the Church's Form of Process and with the law of the land.
The statement that "the Commission are especially aware of the concern
expressed by many within the Church that men who make their living from
the Church are continuing to attack and undermine the very organisation
which provides for them" is unworthy of the Commission. It implies
an exploitation of the denomination by those who seek to bring it back
to its Constitution. It is precisely because the FCDA hold the Constitution
of the Church in such high esteem that they believe that all decisions
of the courts of the Church must be assessed in terms of the Constitution.
No court of the Church has a right to make a decision which is contrary
to the Constitution and any such decision is not one which can properly
be obeyed.