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Ecclesiastical Case Reports
Free Church of Scotland (Continuing) v General Assembly of the Free Church of Scotland
(Outer House: Lady Paton, March 2005)
Scotland - church property - schism - adherence to constitution - jurisdiction
In January 2000, the Commission of Assembly of the Free Church suspended 22 dissident ministers pending a decision by the General Assembly about their conduct. They then withdrew from the Free Church and constituted themselves as the Free Church of Scotland (Continuing), whereupon the General Assembly endorsed the Commission of Assembly's actions and declared the dissidents' charges vacant. The pursuers sought declarator that they were entitled to all the property and assets held in trust for the Free Church or, alternatively, that they were entitled to the property and assets "in such proportion and upon such conditions as the court shall determine". They averred that the right of continued Protest was fundamental to the nature and Constitution of the Free Church and that the defenders had abandoned that principle in 1995 and had thereby broken their ordination vows.
The Lord Ordinary ruled that she had only limited jurisdiction, quoting with approval Lord President Cooper's dictum in Mackay and others v MacLeod and others 10 January 1952 (First Division, unreported) that the court should be concerned with matters of belief and doctrine "only for the purpose, of informing themselves as to the essential and distinguishing tenets of the church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence". She concluded that the supposed right of continued Protest did not constitute a fundamental constitutional principle of the FC -but that even if it were a fundamental principle it had been satisfied in the circumstances of the case. She therefore held that the defenders had not departed from the fundamental tenets of the Free Church and that they were entitled to the assets and property held in trust for the Church. However, she also held that the pursuers had not departed from any fundamental tenet of the Church and had not, therefore, forfeited any entitlement to the assets and property held in trust for the Church. But because there were at least prima facie grounds for concluding that at least some of the pursuers had failed to comply with the discipline and government of the Church, she concluded that it would be inappropriate to rule on any possible apportionment of property between the parties.
Case summary provided by Frank Cranmer. The Opinion is available at www.scotcourts.gov.uk/opinions/2005csoh46.html. At the time of writing, an appeal is pending.
[JG]
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