RECENT ATTEMPTS TO BROKER A SETTLEMENT IN THE DISPUTE BETWEEN THE FREE CHURCH OF SCOTLAND AND THE FREE CHURCH OF SCOTLAND (Continuing)

1.October 2000 Meeting of Commission of Assembly of Free Church (Continuing)

A Special Meeting of the Commission of Assembly of the Free Church of Scotland (Continuing) was convened on 31st October 2000.

At the meeting it was moved, seconded and agreed that:

“The Commission of Assembly affirm that the Free Church of Scotland (Continuing) is willing to attempt to settle any difficulties over church property by negotiation rather than resort to civil litigation.”

This was formally conveyed in a letter dated 7th November by the Clerk of Assembly to his counterpart in the Residual Body. On 30/11/00 the Commission of Assembly of the Free Church (Continuing) instructed the Assembly Clerk to respond to a communication from the Rev. James MacIver dated 24/11/2000 in the following terms inter alia:

“3) If there is a just and equitable settlement will the Free Church (Continuing) then give up its claim to be the Free Church of Scotland?

3 No. The position of the Free Church of Scotland (Continuing) is made clear in the Declaration of Reconstitution.”

This response was considered by the Commission of the Residual Free Church on 13th December 2000. Their Finding was inter alia:

“The Free Church of Scotland do not move to discussions with the self styled Free Church (Continuing) on the grounds 1) They have not given an undertaking that they will not take the question of the status of individuals in the Church to the civil court, 2) That the Free Church (Continuing) do not accept that they are not the Free Church of Scotland.”

In the light of this response it was formally proposed to the residual body that the parties agree to utilise the process known as Judicial Arbitration to settle their differences. In August 2001 Law Agents advised the Free Church (Continuing) that agents for the other side had intimated that their clients were not willing to consider such a procedure. The Free Church (Continuing) Legal Advice and Property Committee accordingly concluded that there was now no alternative to raising an action for Decree of Declarator in the Court of Session.

2 Mediation

In August 2004 delegations from both sides to the dispute met at Carberry Towers, a conference centre near Edinburgh, for discussion under the auspices of a jointly agreed professional mediator. This series of meetings was helpful in reaching some understanding of the position held by the respective parties and some progress was made. Regrettably, however, the delegation from the residual Free Church were not prepared to contemplate the setting aside of the purported suspensions of our ministers ab initio. They were able only to offer to declare our men as being in good standing if we were to forego any claim to the historic witness and testimony of the Free Church of Scotland.

In a Press Release dated 14/9/04 the Free Church stated:

“The agreement, worked out over 4 days of talks at Carberry Towers, included the proposal for the two churches to recognise each other as separate Christian Churches. Consequently, the Free Church would recognise the FCC ministers as ministers in good standing in a Christian Church, and as a result their ministers would no longer be regarded as suspended ministers.”

In addition, although asserting that they wished to ensure that “none of our ministers would be without a roof over his head and that every congregation had a place of worship,” they were prepared only to lease or to sell redundant properties to us. Title to leased properties would remain in their hands in perpetuity. These proposals were not acceptable to our Commission of Assembly to whom our delegation reported on 5th October 2004.

A Statement to congregations dated 24/9/04 from the (Residual) Church’s Legal Group stated:

“It is also clear now that the FCC want only one thing: they want to be the Free Church of Scotland, but only on condition that those who disagree with them, and Principal Macleod in particular, will not be part of the new Free Church. They want to rerun all the events of the 1990’s. They are now attempting in the Civil Courts what they could achieve in neither the Church Courts nor the Sheriff Court.”

A report in the Press & Journal of 12/10/04 stated:

“They [FCC] are asking the civil court to determine whether the matter of the right of continued protest, with clearly defined limitations, is enshrined in the constitution of the Free Church. The Free Church position is that the FCCs insistence on ‘the right of continued protest’ means the right of a dissentient minority to decide which issues are unconstitutional, to go on refusing to submit to decisions of church courts, and to go on campaigning until the majority agrees with them.”

3 Legal Debate in the Court of Session

Commencing on 12 October 2004, four weeks of Legal Debate by Counsel for the parties took place before Lady Paton in the Court of Session in Edinburgh. Her Determination was issued on 24th March 2005. Although the Residual Body, despite their previous claims to the contrary, conceded that the 1995 finding was non-judicial Lady Paton was not persuaded that a right of continued protest is a fundamental principle of the Free Church of Scotland. She concluded that in the present case there had been no departure from the fundamental principles of the Free Church on the part of the defenders sufficient to render them no longer the true Free Church. She reached the view that the residual Free Church continued to hold to the fundamental tenets of the Free Church and that they were thus fully entitled to the assets and property held in trust. She also concluded however that the Free Church (Continuing) continued to hold to the fundamental tenets of the Free Church and, on that view, had not forfeited any entitlement to the assets held in trust. On an examination of the ordination vows taken by ministers and office bearers she suggested however that “there are at least prima facie grounds of failure by the pursuers (or some of them) to comply with the discipline and government of the Church.” She concluded that in these circumstances it would be inappropriate for the Court to rule that we have exclusive right to a portion of the assets of the Free Church. The Counsel of the Free Church (Continuing) took the view that there were fundamental flaws in this Determination and prepared grounds for appeal.

4 Meeting of Parties in aftermath of the Determination

On the basis of an approach made by the Moderator of the 2004 residual Free Church Assembly a further meeting of the parties took place Free North Church, Inverness, on 3rd May 2005. In presenting his opening statement, the Convener of the residual Free Church delegation detailed what he characterised as his side’s ‘Offer’. This was effectively a reiteration of what they had proposed during the mediation talks at Carberry Towers in August 2004 but with the removal of any commitment to ensuring availability of properties for worship or as manses. There are other situations where the majority of local congregational trustees are loyal to the Free Church (Continuing) and they hold title to properties in trust on behoof of the congregation. The Free Church (Continuing) General Assembly on 26th May 2005 took note of but rejected the terms of the ‘Offer’.

5 ICRC Meeting in Pretoria October 2005

The sixth meeting of the International Conference of Reformed Churches was held in Pretoria from 12th to 19th October 2005.The Free Church of Scotland (Continuing) had applied for membership of the ICRC.

The following appeared on the Free Church web site on 20/10/05 as part of the finding of the ICRC re FCR and FCC:

“The FCC are currently engaged in civil action against the FCS. No Church should be accepted as a member church of the ICRC whilst it is engaged in taking a member church to a civil court on a matter of church discipline for the following reasons.”

Did the ICRC make reference to taking a member church to court on a matter of church discipline?

The following was agreed at Carberry in August 2004:

“We both believe that the Civil Court has no locus in relation to the intrinsic merits of what may be claimed to be the fundamental principles of the FCOS. However in determining questions of temporalities the Civil Court may be asked to determine what are the fundamental principles of the constitution of the FCOS and who adheres to them – the ‘right of continued protest’ is one such issue.”

In other words the Residual Body accepts the authority of the civil magistrate in disputes of this kind. Was this stated at Pretoria?

“a) Taking a member church to court is contrary to the Reformed foundations of the ICRC in that it contradicts the teaching of Scripture to which we are bound. 1 Cor. 66-7 ‘But instead one brother goes to law against another – and this in front of unbelievers! The very fact that you have lawsuits among you means that you have already been completely defeated already. Why not rather be wronged? Why not rather be cheated?’ ”

The Rev. Fergus MacDonald, as spokesman for the Residual Free Church delegation at Pretoria, endorsed this position.Was it made clear at Pretoria that in so doing Mr MacDonald had repudiated the history of the Free Church of Scotland? Was the Conference not reminded that the Free Church of Scotland, many of whose properties and much of its assets were secured by legal action in 1900, was a founder-member of the ICRC?

Bear in mind that two other delegates to Pretoria, the Revs Alex MacDonald and James MacIver, were members of the Free Church (Residual) delegation at Carberry and agreed with the Carberry statement. Did they dissociate themselves from Mr MacDonald’s position?

This paper deals with this issue in 3 sections:

the Proposals for Extra Judicial Settlement of the Dispute

the ONE CHURCH/TWO CHURCH proposals

recent talks and developments in Skye

On Tuesday 7th March 2006, the Commission of the Free Church of Scotland (continuing) resolved to instruct their Legal Advice and Property Committee to fall from their appeal against the judicial decision of Lady Paton in the Court of Session on 24th March 2005.

They also resolved to submit the following Proposals for Extra-judicial Settlement of the Dispute between the present subsisting bodies of Christians known as:

THE FREE CHURCH OF SCOTLAND (CONTINUING).

AND

THE FREE CHURCH OF SCOTLAND

The General Assemblies of both bodies, humbly conscious of the damage that has been done to the Cause of Christ by the dispute that has divided the Free Church of Scotland  in recent years and desirous that the rift be healed to such an extent that both bodies can exist in harmony with each other for however long organic reunion continues to elude them, hereby agree to the following provisions for settlement of their dispute without further recourse to the civil magistrate.

1.  Whereas the Free Church of Scotland (Continuing) assert

1.1that the right of continued protest in the Courts of the Reformed Church in Scotland against defections from constitutional principles and the rights of a dissenting minority against an oppressive majority have both ever been constitutional principles of the Free Church (General Assembly Act IX, 1851 and Act IX 1852)

1.2that no charge may be laid against any member of the Church of Jesus Christ which is not a breach of Biblical requirement ( Free Church Practice Part III 1.5) and that no member of the Church can be deprived of his privileges except by the establishment of his guilt with reference to a relevant charge, proved by competent evidence, before a competent Court and by means of a regular and fairly conducted trial ( Free Church Practice Part III 2.10)

1.3that the foregoing premises are founded upon the principle that Christ alone is the Head of the Church and that office bearers in the Courts of the Church must govern ministerially according to the laws of Scripture rather than magisterially by exercise of oppressive rule; and that faithful exercise of the constitutional right of continued protest enables office bearers to assert, maintain and defend the doctrine , worship, discipline and government of the Church , thus preserving the unity of the Church of the Church against error and schism; and that office bearers cannot be declared to be in violation of their ordination vows in the absence of due process.

Mark 10 : 35 - 45

And,

Whereas the Free Church of Scotland assert……………

This part needs to be filled in by the Free Church of Scotland.

And,

Whereas the Civil Magistrate has declared that neither the Free Church of Scotland nor the Free Church of Scotland (Continuing) have departed from the fundamental tenets of the Free Church of Scotland,

Wherefore

4.     For the sake of peace and the restoration of ecclesiastical relations between brethren, it is

hereby agreed and enacted by the General Assemblies of the Free Church of Scotland and the Free Church of Scotland (Continuing) that they will adhere to the following terms of settlement:

4.1.  Title.

For the purposes of distinguishing between the separate bodies, each claiming unbroken succession from the Disruption fathers, the Free Church (Continuing) is content to be known by that title for as long as organic reunion eludes us.

4.2    The Suspensions.

The “suspensions” imposed by the Commission of Assembly upon 22 ministers of the Gospel on 20 January 2000 and subsequently by a number of Presbyteries on other ministers adhering to the Free Church of Scotland (Continuing) are hereby recognised as being void.

4.3    Property.

The overriding principle that each congregation has a suitable place for worship and no minister of the Gospel is without appropriate accommodation for his needs will regulate the approach of both bodies to resolution of property matters.

The general principle will be that current occupancy will be accepted as the appropriate occupancy for future regulation.  Where possible, and subject to the agreement of local congregations, adjustments to currently prevailing conditions of occupancy that are likely to make for more efficient use of places of worship may be arranged.

Title to those properties held under the terms of the Model Trust Deed and now to be occupied as of right by or for congregations adhering to the Free Church (Continuing) will pass to the Free Church of Scotland (Continuing) by means of the Free Church General Trustees renouncing any interest in the affected properties in favour of General Trustees appointed by the Free Church of Scotland (Continuing).  The terms of the trust under which these properties are held will remain unchanged in principle by this process and any proposed future change in these terms will be subject to agreement by both the Free Church of Scotland and the Free Church of Scotland (Continuing).  In like manner, title to properties held by local trustees will pass where goodwill prevails between the parties under the supervision of Law Agents for both bodies and of a joint Committee appointed for the purpose.  In those cases where agreement on the basis of goodwill cannot be reached the status quo will continue to prevail and the matter will continue to be kept under review by the joint Committee until a resolution can be found.

Oversight of these arrangements will be undertaken by a joint committee to be known as the Committee anent Settlement Arrangements.  The Committee will have a complement of 6 persons, 3 from each of the two Denominations, appointed by their respective General Assemblies and chosen with regard to their gracious disposition and aptitude for administration.  Both bodies will have the right to nominate one of their number to the office of Convener of the Committee.  Chairmanship of meetings will alternate sequentially between the Convener representing both bodies.  The terms of membership and rules of procedure will be as laid down in the Standing Orders of General Assembly in respect of Standing Committees prior to the division.  Both bodies will have the right at their exclusive discretion to nominate one independent observer to membership of the Committee.  Any such observer will be a minister or ruling elder from a Denomination or ecclesiastical body with which the Free Church of Scotland or the Free Church of Scotland (Continuing) has fraternal relations. 

4.4   Finance.

In those local situations where there are frozen bank accounts, resolution of the entire   situation will involve an amicable settlement of all property and financial matters, including that of funds held for behoof of the local Free Church congregation, now in frozen bank accounts.  Under supervision of the Committee and the Law Agents for both bodies, these financial matters will be resolved in such a manner as will be to the satisfaction of the relevant Bank for release of frozen funds.  Where funds are held for behoof of the local congregation in the Free Church Share Pool or in other centrally held funds, the Committee and the Law Agents will take this into consideration in their proposals for settlement.  Any other funds generated, for example, by sale of local properties, in which the separated sections of a local congregation can each reasonably claim to have an interest, will also be incorporated into the proposals for settlement.

In proposals for resolution of property matters, as provided for under paragraph 4.3 hereof, the General Trustees of the Free Church will undertake to give due consideration to release of funds held in trust for behoof of local congregations.

4.5    Free Church Pension Fund.

It has become clear that the Stewardship and Policy Committee of the Free Church of Scotland and the Trustees of the Pension Fund are faced with an immense problem due to the significant shortfall in funding.  This is an issue that the members of these bodies are currently giving urgent attention to in collaboration with independent professional advisers.  The Trustees of the Pension Fund hereby give an undertaking to ensure, that whatever course of action is deemed to be prudent in the light of advice received, they will seek to guarantee equity and equality to all members, irrespective of denominational affiliation.  Subject to satisfactory arrangements being put in place in respect of the other matters dealt with in this agreement, as well as an equitable share of centrally held material assets being made available to them, the Free Church of Scotland (Continuing) give an assurance that they will give diligence to providing whatever financial help is deemed to be equitable to assist in resolving this difficult problem.

4.6   Ecclesiastical Records.

The general principle will be that the status quo will continue to prevail but, with goodwill prevailing on both sides, efforts will be made to ensure that neither side is disadvantaged by the absence of records.  Where possible and desirable, this will be effected by exchange of copies to maintain continuity.  A Joint Working Party anent Annals of the Free Church will be re-appointed to take this project forward in a sensitive manner.

4.7Library Access.

It is hereby agreed that access on the part of ministers and divinity students of the Free Church of Scotland (Continuing) to the library held at the Free Church College will be equal and equivalent to that of ministers and divinity students of the Free Church.  It is also hereby agreed that the terms of access to the New College library, governed by the provisions of the Churches Scotland Act 1905, is taken to include all ministers and divinity students of the Free Church of Scotland (Continuing).

5.   Implementation of these provisions.

5.1The provisions of this draft agreement, subject to such adjustment as may be agreed between representatives of the Legal Group of the Stewardship & Policy Committee of the Free Church of Scotland and of the Legal Advice & Property Committee of the Free Church of  Scotland (Continuing) will be tabled at Commissions of Assembly of both bodies indicted to meet in March 2006.  Subject to the terms of this agreement being approved in principle by both Commissions of Assembly, the Free Church of Scotland and the Free Church of Scotland (Continuing) each undertake to fall from further legal process for resolution of the difficulties between them.

5.2On the terms of the agreement being approved in principle by both Commissions of

Assembly, a joint Working Party will be appointed to finalise the detail of this agreement for approval and implementation by the General Assemblies of both bodies indicted to meet in Edinburgh in May 2006.  The Free Church and the Free Church Continuing will each appoint 3 of their number to the Working Party to confer with each other and with their respective Committees for final resolution of out standing matters for incorporation into a jointly approved Report to the General Assembly of both Denominations.  In the event of any matter not being satisfactorily resolved by negotiation in advance of preparation of the joint Report to General Assembly, it will be competent for the Committee of either Denomination to requisition the calling of a Special Commission of their Assembly for resolution of any such matter.

5.3Both bodies humbly resolve, in prayerful dependence upon God’s grace and help, to seek to strive with energy, diligence and mutual respect to resolve this dispute between them in a manner that is becoming of brethren in the Lord Jesus Christ.

THE RESPONSE OF THE FCOS TO THE ABOVE PROPOSALS

The Commission of Assembly of the FCOS met on Thursday 23rd March  2006. They did not debate in public the above Proposals for Extra Judicial Settlement of the Dispute between the two Church factions. They did however welcome the FCC’s instruction to their Legal Advice Committee to abandon their appeal against Lady Paton’s decision. They also proposed either a ONE CHURCH SOLUTION or a TWO CHURCH SOLUTION to the dispute.

The ONE CHURCH SOLUTION

Under the ONE CHURCH SOLUTION proposal the following terms would apply:

The FCOS would “receive back” into membership those members and adherents of the FCC who would acknowledge that they “left” under the misapprehension that they were remaining in the FCOS.

Office bearers who had been “suspended from office” as a result of their having “walked out of the Commission of Assembly” on 20th January 2000 – as well as those others who had subsequently been suspended for similar reasons – should be invited to return to the Courts of the Church in order to have their suspensions “dealt with on the basis of Biblical procedures laid down in the Practice of the Free Church of Scotland – the purpose for such disciplinary procedures being the restoration of the offender, on repentance.”

The TWO CHURCH SOLUTION

The Finding of the Commission of the FCOS continues as follows:

“While it is our heartfelt desire that the “One Church Solution” would become a reality, we recognise that for some this may prove impossible. Whether because of views strongly and conscientiously held, or simply because “too much water has gone under the bridge”, some may feel they cannot return to the Church of their fathers, and would prefer a “Two Church Solution”. While still urging them to consider the One Church Solution, we recognise that at least in the meantime a Two Church Solution will be desirable for some. If it becomes clear that there remains a group who wish to remain as the Free Church of Scotland (Continuing), separate from the Free Church of Scotland, we are prepared to offer the following five proposals, with the proviso that all five must be accepted together:

The Free Church of Scotland recognises the Free Church of Scotland (Continuing) as a separate denomination, and while making clear that their ministers remain suspended from the ministry of the Free Church of Scotland, the Free Church of Scotland recognises them as office bearers of another denomination, which must make clear by its name that it is not the Free Church of Scotland.

The Free Church of Scotland asks Free Church of Scotland (Continuing) to recognise that they do not have legal title to property held on behalf of the Free Church of Scotland and therefore to return all property which Free Church of Scotland congregations require. The Free Church of Scotland for its part will give an undertaking that where this is done, arrangements for the renting or sharing of church buildings for services will be implemented, where possible and desirable, and for copies to be made of relevant ecclesiastical records.

With regard to buildings which the Free Church of Scotland does not at present require, the Free Church of Scotland is prepared to rent, lease or sell these to the Free Church of Scotland (Continuing).

A joint committee would be appointed to oversee these arrangements in consultation with local congregations.

The Free Church of Scotland expects the Free Church of Scotland (Continuing) to cooperate fully in the removal of any outstanding legal process related to this dispute, and in the release of funds held in suspense, including those held in congregational bank accounts as well as those on joint deposit with our respective law agents..

b) The FCC Commission of Assembly have, by abandoning their Reclaiming Motion (Appeal) in the Court of Session, effectively accepted the decision of that Court in Lady Paton’s Opinion that the FCC is not the Free Church of Scotland and is not therefore entitled to any of the assets of the Free Church.

c) Many members of the Free Church of Scotland (Continuing) may have been under the misapprehension that they, by identifying with the Free Church of Scotland (Continuing) were remaining in the Free Church of Scotland.

2) The Free Church of Scotland invites those office bearers of the Free Church of Scotland (Continuing) who were suspended from office by the Courts of the Free Church of Scotland around the year 2000 to return to the Courts which suspended them in order to have their suspensions dealt with according to the principles of Scriptural discipline as laid down in The Practice of the Free Church of Scotland. This for the following reasons:

a) One of the main purposes of church discipline is the recovery of the offender and restoration on repentance. If our Lord could restore Simon Peter after he denied him (John 21:15ff), surely it is not beyond the bounds of possibility (and of grace) that there could be restoration in this case! The Apostle Paul similarly speaks of the importance of restoration (2 Corinthians 2:5-11). This is a most sensitive issue with great sensitivities on both sides. This is not a time for triumphalism – “There is no place for a spirit of rivalry in any disciplinary process” (The Practice, p.89).

b) This is the time to seize a historic opportunity to do what has seldom been achieved before in Scottish Presbyterianism – to heal a church split.

c) This is consistent with Lady Paton’s opinion [76]: “…it seems to me that some or all of the pursuers in the present case may be in breach of promises or undertakings made on joining the Free Church. Matters have still to be ruled upon by the General Assembly, but in my view there are at least prima facie grounds of failure by the pursuers (or some of them) to comply with the discipline and government of the church.”

3) While it is our heartfelt desire that the “One Church Solution” would become a reality, we recognise that for some this may prove impossible. Whether because of views strongly and conscientiously held, or simply because “too much water has gone under the bridge”, some may feel they cannot return to the Church of their fathers, and would prefer a “Two Church Solution”. While still urging them to consider the One Church Solution, we recognise that at least in the meantime a Two Church Solution will be desirable for some. If it becomes clear that there remains a group who wish to remain as the Free Church of Scotland (Continuing), separate from the Free Church of Scotland, the Free Church of Scotland is prepared to offer the following five proposals, with the proviso that all five must be accepted together:

a) The Free Church of Scotland recognises the Free Church of Scotland (Continuing) as a separate denomination, and while making clear that their ministers remain suspended from the ministry of the Free Church of Scotland, the Free Church of Scotland recognises them as office bearers of another denomination, which must make clear by its name that it is not the Free Church of Scotland.

b) The Free Church of Scotland asks Free Church of Scotland (Continuing) to recognise that they do not have legal title to property held on behalf of the Free Church of Scotland and therefore to return all property which Free Church of Scotland congregations require. The Free Church of Scotland for its part will give an undertaking that where this is done, arrangements for the renting or sharing of church buildings for services will be implemented, where possible and desirable, and for copies to be made of relevant ecclesiastical records.

c) With regard to buildings which the Free Church of Scotland does not at present require, the Free Church of Scotland is prepared to rent, lease or sell these to the Free Church of Scotland (Continuing).

d) A joint committee would be appointed to oversee these arrangements in consultation with local congregations.

e) The Free Church of Scotland expects the Free Church of Scotland (Continuing) to cooperate fully in the removal of any outstanding legal process related to this dispute, and in the release of funds held in suspense, including those held in congregational bank accounts as well as those on joint deposit with our respective law agents.

The Commission of Assembly instruct the Clerk of Assembly to send this finding, together with the Report, to the Clerk of Assembly of the Free Church of Scotland (Continuing) with an invitation to appoint, consequent on the acceptance in principle of these proposals by the FCC Commission of Assembly, five representatives to meet with a similar number of representatives of the Free Church to discuss the implementation of these proposals.”

RESPONSE OF THE FREE CHURCH OF SCOTLAND (C) TO THESE ONE CHURCH/TWO CHURCH PROPOSED SOLUTIONS

The Report of the Legal and Property Committee of the Free Church of Scotland (Continuing) contains these words: “The Committee is requesting approval from the Assembly for a letter to be sent by the Committee in suitable terms to the other side’s General Assembly formally rejecting both of the proposals emanating from the meeting of their Commission.” The General Assembly received and adopted the Report.

The Legal Report to the General Assembly of the Free Church (Continuing) stated inter alia:

2.2 As an alternative to the proposals approved by our Commission of Assembly, the other side offered as their preferred option what they euphemistically characterised as a ‘One Church Solution.’ Amongst other things, this proposed as a potential resolution of the purported suspension of our ministers, a return to the Courts of the Church that had suspended them and, on the basis of evidence of contrition and repentance for divisive behaviour there was prospect of them being restored. There is the scent of amnesia in this proposal because it was not with divisive behaviour that the men at the Bar of the Commission on 20 January 2000 were charged but the alleged sin of contumacy. This device was of course used more than once during 1999/2000 to ensure that there was no defence available to those summoned to the Bar of Assembly. The cynicism of such a proposal is breathtaking. We can only assume, surely, that the proposal was made in the clear expectation of rejection on our part; in short, a public relations exercise in contrast to a genuine attempt to resolve the dispute in a manner becoming of brethren in Christ. Were they expecting us to abandon the principle of the right of continued protest and accept that it is constitutionally competent for men to be disciplined in the absence of due process? In this connection it must be noted that at the meetings at Carberry Tower in August 2004 both sides agreed the following which was proposed by the other side:

We both regret that no reunion can take place at the present time while the issue of the ‘Right of Continued Protest’ is in dispute between us.

They have therefore already acknowledged that the ‘right of continued protest’ is an insurmountable barrier to reunion between themselves and the Free Church (Continuing).”

The Residual Report also contains contradictions. It states:

“c) This is consistent with Lady Paton’s opinion [76]: ‘…it seems to me that some or all of the pursuers in the present case may be in breach of promises or undertakings made on joining the Free Church. Matters have still to be ruled upon by the General Assembly, but in my view there are at least prima facie grounds of failure by the pursuers (or some of them) to comply with the discipline and government of the church.’ ”

How can the suspended ministers return to the courts of the Church to have their suspensions dealt with on the basis of repentance for matters which Lady Paton says that the General Assembly has still to rule on?

RECENT DEVELOPMENTS IN SKYE

Following on from discussions which had taken place at a local level between representatives of the Free Church of Scotland (Continuing) and the Free Church of Scotland regarding a possible settlement of property issues there, a Petition from the Free Presbytery of Skye and Uist (continuing) was brought to the attention of the Bills and Overtures Committee appointed by the General Assembly of the Free Church of Scotland (Continuing) of May 2007. This Petition was deemed to be unreceivable on procedural grounds, but, in order to bring the substance of that Petition to the attention of the Assembly the following addendum was introduced:

“The General Assembly reiterate their desire to achieve, if possible, a constitutional and equitable negotiated settlement to the dispute between the Free Church (continuing) and their former brethren.

The General Assembly note that some discussions have taken place within the Bounds of the Free Presbytery of Skye & Uist regarding a local settlement.

The General Assembly direct the Legal Advice & Property Committee, in consultation with the Assembly Clerks’ Department, to consider how the General Assembly’s desire for a potential negotiated settlement could possibly be effected, whether on a local or a national basis.

Further the General Assembly direct the Legal Advice & Property Committee to consider the relative merits of any such potential methods of settlement and report to the October meeting of the Commission of Assembly.”

After debate, this became a Finding of the General Assembly of the Free Church of Scotland (continuing) anent the Report of their Legal and Property Committee.

When the Legal Committee & Property Committee met on Tuesday 19th June 2007, they took up consideration of the aforesaid Assembly Finding. This is an extract from the Draft Minute of the Legal Advice & Property Committee of that date – viz:

Extract from Draft Minute of the Legal Advice and Property Committee  Meeting of   June 2007.

At 85 Old Edinburgh Road, Inverness on Tuesday   June 2007 the Legal

Advice & Property Committee of the Free Church of Scotland

(Continuing) met and was constituted.

Inter alia

Local Settlement.

The Committee took up consideration of a communication from the Assembly Clerks Department in the following terms:

“Negotiations  with the Residual Free Church in Skye.

As you may be aware, the Petition from the Free Presbytery of Skye & Uist anent Local Property Negotiations was deemed by the recent General Assembly not to be receivable, but a way was found for the substance of the Petition to be debated during the Report of the Legal Advice & Property Committee. In a vote at the conclusion of the aforementioned  debate, the General Assembly refused by an overwhelming majority to encourage the Presbytery to facilitate local property negotiations with those connected with the Residual Free Church. Instead the General Assembly noted that discussions had been taking place and, because there are issues of fundamental principles involved as well as civil legal concerns, instructed the Legal etc Committee to consider how a local or national property settlement could be effected in an constitutional and equitable way, requesting them to make comment on the relative merits of any possible methods of settlement, the Committee to report to the October Commission of Assembly.”

It was moved, seconded and agreed to note that the Committee agreed  to note the communication and resolve to be guided by its terms. A copy of the communication was circulated to members. The Committee also took note of a communication from Rev K. MacDonald, Snizort, in this connection, and this was also circulated to members. After various discussions it was moved, seconded and agreed that the local representatives  currently engaged in talks in Skye be advised to focus any investigatory discussion with their counterparts in the Residual Body of the Free Church of Scotland on seeking to establish principles which would in due course form the basis of a Church wide settlement; that they seek to establish the following:

that both parties clearly state their position relative to the dispute in the Free Church of Scotland;

that they seek to establish a principle of reciprocity whereby our constitutional rights are safeguarded.

These local discussions would not be with a view to a local settlement initially, but should act as a springboard towards an equitable Church-wide settlement.

It was further moved, seconded and agreed that Rev John Macleod (Duthil Dores, retired) would liaise with the local representatives in Skye at any future meeting they might have, in accordance with the Assembly remit.

SOME F.A.Q’s

Does the use of the designations Free Church of Scotland and Free Church of Scotland (continuing) indicate that the body referred to throughout this document as the Free Church of Scotland is the true Free Church of Scotland and that the body referred to as the Free Church of Scotland (continuing) is a separate denomination distinct from the Free Church of Scotland?

No, the name Free Church of Scotland (continuing) is used purely for purposes of administration to distinguish the reconstituted Free Church of Scotland from any residual body claiming that title. See Appendix: Declaration of Reconstitution of the Historic Free Church of Scotland.

What are the particular merits of the Proposals for Extra-Judicial Settlement of the Dispute document?

This document would allow each side to state clearly the principles that have determined the position they have taken in this dispute and yet seek to deal with the settlement of property as a separate matter in a practical and realistic manner.

Why did the Free Church of Scotland (continuing) reject a) the ONE CHURCH proposal and b) the TWO CHURCH proposal?

The ONE CHURCH PROPOSAL called on office-bearers of the Free Church (Continuing) to repent regarding the actions they had taken. This they could not do because they believe their actions have been determined by a faithful adherence to truth and principle.

The TWO CHURCH also required something that could not be conceded , namely that the Free Church of Scotland (continuing) is a separate denomination, distinct from , and not part of the Free Church of Scotland.

APPENDIX:

DECLARATION OF RECONSTITUTION OF THE HISTORIC FREE CHURCH OF SCOTLAND

We the undersigned Ministers and Elders of the Free Church of Scotland,

Considering that the constitution of the said Church is contained in the Scriptures of the Old and New Testaments, the Westminster Confession of Faith as approved by the General Assembly of the Church of Scotland in 1647, the First and Second Books of Discipline, the Larger and Shorter Catechisms, the Claim, Declaration, and Protest of 1842, the Protest of 1843, the Act of Separation and Deed of Demission executed in 1843, the Formula appointed to be subscribed by probationers before receiving licence and by all office-bearers at the time of their admission together with the Questions appointed to be put to the said parties at ordination and admission, and the Acts of Assembly of the Church of Scotland prior to 1843; and now seeing:

(1st)That Commissioners exercising a majority in voting in the General Assemblies and Commissions of the Free Church of Scotland, and purporting to enact and make findings in the name of the Free Church of Scotland and by authority as office-bearers according to the rule of Christ and the constitution of the Church, have of late years applied in an arbitrary and tyrannical way the resolutions of its General Assemblies and Commissions, establishing these as ultimate rules of conduct, and treating as contumacious any conscientious inability to give obedience to edicts of the said Assemblies and Commissions, contrary to Chapter XXXI Section IV of the Confession of Faith, which states: “All Synods or Councils since the Apostles’ times, whether general or particular, may err, and many have erred; therefore they are not to be made the rule of faith or practice, but to be used as an help in both”; and Chapter XX Section II which states: “God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it, in matters of faith or worship, so that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring of an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also”: by, inter alia:

(a)deeming it censurable to refuse to obey instructions of a Church Court which are in violation of the Word of God and the constitution of the Free Church of Scotland, regardless of whether obedience could be rendered in conscience or not;

(b)bringing disciplinary processes against ministers and elders in respect of matters which have not been declared censurable in Scripture;

(c)treating as potentially contumacious any suggestion to revisit an administrative decision of the General Assembly notwithstanding that such decisions are not unalterable and are open at all times to review, and instituting disciplinary processes against ministers who called for such review;

(d)appointing general assessors to a Presbytery in order to impose the will of the General Assembly and its Commission on the will of the substantial majority of the Presbytery conscientiously expressed;

(e)declaring sinfully schismatic, without proof before the Courts of the Church, the action of a body of believers who withdrew from their local congregation for conscience’ sake  and out of concern for the correct observance of the constitution of the Free Church of Scotland, and forbidding ministers and office-bearers, under pain of censure, to preach to or have fellowship with the said body of believers notwithstanding that they have not departed from the constitution and principles of the Church;

(2nd)That Commissioners purporting to exercise lawful judicial authority in the name of the Free Church of Scotland have breached fundamental principles of equity and natural justice, contrary to Chapter XIX, Section V of the Confession of Faith, which states: “The moral law doth for ever bind all, as well justified persons as others, to the obedience thereof; and that not only in the matter contained in it, but also in respect of the authority of God the Creator, who gave it; neither doth Christ in the gospel anyway dissolve, but much strengthen this obligation”: by, inter alia:

(a)forbidding office-bearers and members now or henceforth to pursue matters arising from a particular fama, involving serious allegations against a minister, in any form whatsoever;

(b)ordering the destruction of documents relating to the aforesaid fama notwithstanding that issues arising therefrom remain unresolved, thereby prejudicing the rights of interested parties to secure a fair and proper resolution of the said issues;

(c)imposing requirements on ministers and office-bearers additional to their ordination vows, and  thereby, in particular, infringing their civil rights to freedom of assembly and association by forbidding them, under pain of censure, to hold office in an association professedly aiming to assert and defend the constitution of the historic Free Church of Scotland; 

(d)annulling the licensing of, and withdrawing recognition as a candidate for the ministry from, a divinity student who had been accepted by the Training of the Ministry and Admissions Committee after due examination of his credentials and then licensed by his Presbytery in accordance with the law of the Church, and against whom no disciplinary proceedings had been brought, and directing the Presbytery to expunge the decision to proceed to license from its minutes;

(3rd)That albeit the Form of Process enacted by the General Assembly of the Church of Scotland in 1707, and being a constitutional document of the Free Church of Scotland, is binding and obligatory on all Courts of the said Church, Commissioners purporting to exercise lawful judicial authority in the name of the Free Church of Scotland have adopted findings and conducted procedures at variance with, and subversive of, the principles of church discipline set out in the said Form of Process and reflected in the authorised practice and procedure of the Free Church of Scotland, by, inter alia:

(a)endorsing a finding of the Training of the Ministry and Admissions Committee, in relation to the aforesaid fama, without judicial examination of the evidence and without enquiry to ensure that the precognition in the case had been properly conducted and that all relevant witnesses had been duly examined, contrary to the requirement of the Form of Process that when such a matter comes before a church judicatory it ought not to be “negligently inquired into” (Chapter VII, paragraph 2);

(b)treating the said decision as judicial notwithstanding that the procedure adopted by the judicatory was not conducted under the Form of Process and the decision was therefore no more than administrative;

(c)purporting to terminate the bringing of private libels in relation to the aforesaid fama, thereby seeking to prohibit a course of action to which the Form of Process (Chapter VII, paragraph 3) gives a right;

(d)conducting disciplinary processes against ministers before the Commission of Assembly as a court of first instance, in violation of the requirement in the Form of Process (Chapter VII, paragraph 1)  that all processes against any minister are to begin before his Presbytery, and using the said Commission to institute such processes without authority from the General Assembly:

And that Commissioners exercising a majority in voting in the General Assemblies and Commissions of Assemblies, purporting to act lawfully therein in the name of the Free Church of Scotland, have, by the aforementioned actions, passed acts and resolutions under which the constitution and standards of the Free Church of Scotland can be, and are violated, and have refused to countenance petitions and other requests for redress of the same; whereby the said persons have ceased to constitute authoritative courts of the historic Free Church of Scotland.

In consequence whereof:

We claim our right and profess our duty, according to our ordination vows thereanent, to administer discipline and government consistent with the requirements embodied in the constitution of the Free Church of Scotland and stated in our ordination vows, which vows bind us to maintain the said discipline and government “notwithstanding of whatsoever trouble or persecution may arise”;

We protest that by our engagement to the constitution of the Free Church of Scotland, our office in the said Church prevents, and has always prevented, our being bound by any acts or resolutions (including, but not confined to, the foregoing) of the said persons purporting to act lawfully in the name of the Free Church of Scotland, which are contrary to the authorised standards of the Free Church of Scotland;

We declare that in accordance with the Word of God and the authorised standards of the Free Church of Scotland, we are not and can never be under the jurisdiction of individuals and courts purporting to act in the name of the Free Church of Scotland, yet against the said Word and standards, without doing violence to our consciences and our faithfulness to our ordination vows.

Wherefore -

We have resolved to declare that the Free Church of Scotland is separate from all church courts seeking to impose acts and findings contrary to the constitution of the historic Free Church of Scotland, and we claim still to be the true bona fide representatives of the original protesters of 1843 and to be carrying out the objects of the Protest more faithfully than the majority.

In order the more formally and effectually to carry out the said resolution, we, the Ministers and Elders of the historic Free Church of Scotland under-subscribing, for ourselves and all who may now or hereafter adhere to us, affirming that we and they now adhere as we and they have heretofore done to the constitution and standards of the historic Free Church of Scotland, declare that we hereby disassociate ourselves from any residual subsisting body claiming the title of the Free Church of Scotland; and we further specially provide and declare:

That we for ourselves, and all who may now or hereafter adhere to us, in no degree abandon, impair or waive the rights belonging to us as ministers of Christ's gospel, and pastors and elders of particular congregations, to perform fully and freely the functions of our offices towards our respective congregations, or such portions thereof as may adhere to us;

That signature of or adherence to this Declaration shall in no way prejudice our right to maintain the doctrines and principles of the historic Free Church of Scotland as set forth in her authorised standards and authoritative documents and to take all steps that may be necessary to vindicate the said doctrines and principles;

That we are and shall be free to exercise government and discipline in our several judicatories according to the Word of God and consistent with the constitution and standards of the historic Free Church of Scotland;

That henceforth we are not and shall not be subject in any respect to the ecclesiastical judicatories of any residual subsisting body claiming the title of the Free Church of Scotland;

That meanwhile, to distinguish the reconstituted Free Church of Scotland (solely for purposes of administration) from any residual body claiming that title we may be called the Free Church of Scotland (Continuing); 

That the rights and benefits accruing to the ministers subscribing, or who may hereafter adhere hereto, from the pension and other funds of the Free Church of Scotland are hereby reserved;

That this Declaration shall in no way be held as a renunciation on the part of the said ministers of their rights to the ownership, enjoyment and occupation of the property and funds of the Free Church of Scotland, including but not limited to churches, manses, halls and other heritable properties, nor of any rights which may be found to belong to such ministers or to their congregations or to the office bearers of such congregations or to existing or future trustees on behalf of such congregations or their kirk-sessions in regard to the same;

That there is hereby  reserved to us, the subscribers hereto, and to all who may now or hereafter adhere to us, power and authority to take all steps that may be necessary or expedient to declare, vindicate, enforce and preserve the status, rights and privileges of every kind, both ecclesiastical and civil, of and attaching now and in the future to us and all who may now or hereafter adhere to us, as those remaining faithful to the doctrine, government and principles embodied in the supreme and subordinate standards of the historic Free Church of Scotland.

The subscribers call to witness the Christian people of this land, and of the Reformed fellowship throughout the world, that this action is not lightly entered into.  It is taken in sorrow at the enforced parting from brethren with whom we have had fellowship in the Lord, but also in defence of truth and justice and of the historic principles and practice of the Free Church of Scotland.  We declare that if any residual body continuing to claim the title of the Free Church of Scotland is prepared to return to the constitution and standards of the historic Free Church of Scotland, and to practise and adhere faithfully to the same, we will see it as our duty to seek reconciliation with our brethren within that body.

In witness whereof these presents are subscribed by us at Edinburgh on 20th January 2000 before the undersigning witnesses.