The Church of Scotland Ministry Disciplinary Proceedings, the New Testament, Natural Justice and Human Rights
I am grateful to the Ministries Council of the Church of Scotland for allowing me to undertake this short study leave project.
The Ministries and Education Committee of the Presbytery of West Lothian initially refused permission for me to do so.
Because of the understanding and support of the Ministries Council,
this study leave project was allowed to proceed.
(c) Robert Alexander Anderson 2011
Contents
Act III 2001
Introduction
1. Comparison with other Churches
2. How did the Church of Scotland come to discipline its ministers in the way that it does?
3. Secular Principles and Processes
4. Problems with and weaknesses in Act III and its modus operandi.
5. Act IV 2007 Section 2 anent bullying
6. Further Issues
7. Recommendations
Notes
III. ACT ANENT DISCIPLINE OF MINISTERS, LICENTIATES, GRADUATE CANDIDATES AND DEACONS (AS AMENDED BY ACTS III AND IX 2002 AND III 2003, X 2004, III 2005, XVI 2006, I AND II 2007, VII 2008, I 2009, III, 2010 AND III 2011) Edinburgh, 19 May 2001 Session 1 The General Assembly, with the consent of a majority of Presbyteries, enact and ordain as follows: Part 1 Introduction 1. (1) For the purposes of this Act: (a) “Disciplinary offence” shall mean (i) conduct which is declared censurable by the Word of God, Act of the General Assembly or established custom of the Church or (ii) a breach of a lawful order of any court of the Church. (b) “investigatory proceedings” shall mean those proceedings carried out in accordance with the provisions of Part 2 of this Act in respect of any disciplinary offence alleged to have been committed by a Minister, Licentiate, Graduate Candidate or Deacon. (c) “disciplinary proceedings” shall mean those proceedings carried out in accordance with the provisions of Part 3 of this Act in respect of any disciplinary offence alleged to have been committed by a Minister, Licentiate, Graduate Candidate or Deacon. (d) “Committee of Presbytery” shall mean a committee of Presbytery of three persons, of whom at least one will be a minister and one an elder. (e) “Presbyterial Panel” shall mean a list of ministers, elders or deacons submitted by Presbyteries in accordance with the following procedure. Every Presbytery, with the exception of the Presbytery of Jerusalem, shall be entitled to appoint one person in respect of every one hundred members, or part thereof, of the Presbytery, to form the Presbyterial Panel. Such appointments shall be made annually with effect from 1st July, shall subsist for one year and shall be intimated in advance to the Principal Clerk. Persons may be re-appointed up to a maximum of three times. Elders so appointed need not be members of the Presbytery, but shall be members of Kirk Sessions within the bounds of the Presbytery. Ministers or deacons so appointed shall be in full membership of the Presbytery. Where it is reasonable so to do, Presbyteries shall appoint equal numbers of men and women to the Presbyterial Panel. (f) “Presbyterial Commission” shall mean a body of five persons, three of whom shall be selected from the Presbyterial Panel randomly as provided for in terms of s.10( 2), but so as to ensure that at least one of the three shall be a Minister, together with a Convener and Vice-Convener appointed by the General Assembly on the Report of the Nomination Committee, both of whom shall be qualified to practise as a lawyer. An alternate Convener and Vice-Convener, qualified as aforesaid, shall be appointed at the same time, but if for any case a further alternate shall be required, the Secretary to the Commission shall consult with the Convener of the Nomination Committee for a further appointment. The Solicitor of the Church shall normally serve as Secretary to Presbyterial Commissions, but may appoint a Depute to act in his or her place in any particular case. The Secretary shall not be a member of the Commission. (g) “Respondent” shall for the purposes of this Act only mean the Minister, Licentiate, Graduate Candidate or Deacon (i.e. member of the Diaconate), as described in paragraphs (b) and (c). (h) “censure” shall mean one or more of: (i) reprimand, which shall be an expression of disapproval of particular behaviour with counsel regarding future conduct; (ii) suspension from the status and functions of ministry for a fixed period subject to automatic restoration by the Presbytery upon the expiry of the said period, upon petition by the Respondent. (iii) suspension from the status and functions of ministry without limit of time but subject to a minimum period of suspension to be determined by the Presbyterial Commission when passing censure upon the Respondent in terms of section 18(2) hereof and subject to restoration by the Presbytery, upon petition by the Respondent. (iv) removal of status, subject to restoration only by application in terms of Act IX, 2002. (i) “administrative suspension” shall mean an instruction by a Presbytery to an individual under its jurisdiction to abstain from the exercise of all the functions of his or her office as minister or deacon until proceedings under this Act are finally disposed of; it shall not constitute a form of censure. (2) Throughout this Act the singular shall include the plural where applicable. (3) For the avoidance of doubt it is declared that any proceedings under this Act are part of the exclusive jurisdiction of the Church and in accordance with the Articles Declaratory of the Constitution of the Church of Scotland in matters spiritual, as hereby interpreted by the Church. (4) For the avoidance of doubt it is declared that nothing in this Act shall reduce the general power of the Presbytery to impose an administrative suspension on any individual subject to its jurisdiction in terms of this Act at any time. 2. (1) All investigatory proceedings shall be initiated by the Presbytery having jurisdiction in terms of this section. (2) Ministers and Deacons shall be subject to the jurisdiction of the Presbytery of which they are members and that notwithstanding that they may reside beyond the bounds. (3) Ministers and Deacons who are not members of any Presbytery shall be subject to the jurisdiction of the Presbytery within whose bounds they normally reside. (4) Licentiates shall be subject to the jurisdiction of the Presbytery which licensed them or to which they have been regularly transferred. (5) A Graduate Candidate shall be subject to the jurisdiction of the Presbytery in whose bounds is situated the congregation of which he or she is a communicant member in terms of section 22 of Act X 2004. 3. (1) A Presbytery may initiate investigatory proceedings whenever there come to the notice of the Presbytery circumstances indicating that a disciplinary offence may have been committed. The Presbytery, or any Committee or individuals holding delegated powers from Presbytery so to do, shall be entitled at its or their discretion to suspend the Respondent immediately from carrying out the functions of his or her office and/or from undertaking ministerial functions generally, which suspension shall be administrative only, and the Presbytery shall be entitled, where appropriate, to appoint an Interim Moderator to the Respondent’s charge. This entitlement shall be without prejudice to the general power of Presbytery described in section 1(4) above. (2) Should circumstances indicating a possible disciplinary offence come to the notice of a Presbytery other than that having jurisdiction in terms of section 2, it shall communicate the same to the Presbytery having jurisdiction together with all information pertaining thereto in its possession. (3) It shall be a disciplinary offence for any member of Presbytery to issue press statements or otherwise talk to the media about an alleged disciplinary offence after the Presbytery receives notice of an alleged offence until the conclusion of any disciplinary proceedings and any appeals relating thereto. (4) A Presbytery shall initiate investigatory proceedings as soon as it comes to the notice of the Presbytery that the name of a person over whom it has jurisdiction has been placed on the Sex Offenders’ Register or included in the children’s list and/or the adults’ list kept under Section 1(1) of the Protection of Vulnerable Groups (Scotland) Act 2007. . Part 2 Investigatory Proceedings 4. (1) On receiving notice of circumstances indicating that a disciplinary offence may have been committed, a Presbytery shall appoint a Committee of Presbytery to consider the circumstances, and, if appropriate, to investigate and prosecute the case. In the exercise of any of its functions in terms of this Act, the Committee of Presbytery shall have all the powers of Presbytery. Except insofar as provided herein, the Presbytery shall have no further part in the proceedings. (2) In considering whether to carry out an investigation the Committee of Presbytery shall consider whether all or any of the allegations made are frivolous, vexatious and/or without merit. (3) Where the Committee of Presbytery decides that all or any of the allegations are frivolous, vexatious and/or without merit and that it is accordingly not appropriate to carry out an investigation in respect of all or any of the allegations made, the Committee of Presbytery shall report its decision to reject the complaint or parts thereof (as appropriate) to the Presbytery and shall advise the person or persons (if any) who made the allegation or allegations of its decision and the reasons for it. 5. (1) If the Committee of Presbytery decides to initiate investigatory proceedings it shall: (a) intimate in writing to the person who is the subject of the allegation (“the Respondent”) the nature of the offence alleged and the nature of the evidence purported to exist in support of the allegation and shall offer him or her the opportunity to make any answer thereto, provided that he or she shall not be obliged to answer; (b) give notice to the Presbytery of that decision and of the allegation or allegations which are to be investigated; and (c) give notice to the Legal Questions Committee, which shall appoint a legally qualified assessor to advise the Committee of Presbytery on matters of law and procedure. (2) On receipt of the notice referred to in section 5(1)(b), the Presbytery shall make such arrangements as appear to it appropriate for the provision of pastoral support for the Respondent and his or her family, for the person or persons who made the allegation and for any witnesses within the bounds of the Presbytery. 6. (1) The Committee of Presbytery shall carry out such investigations as it deems necessary to determine whether a disciplinary offence may have been committed. Such investigations shall normally be concluded within 56 days of the date on which notice is given to the Presbytery in terms of Section 5 (b) hereof but the Presbytery or any Committee or individuals holding delegated powers from the Presbytery so to do shall have power on cause shown by the Committee or the Respondent to grant a further period or periods for completion of the investigation. (2) In all cases under this Act the Presbytery shall keep a Record Apart of the investigatory proceedings. The Record Apart shall comprise all evidence obtained by the Committee of Presbytery including witness statements, and a transcript or recording of the evidence given at any hearing. 7. Before reaching any conclusion on whether a disciplinary offence may have been committed, the Committee of Presbytery shall make known to the person against whom the allegation has been made the substance of the complaint being considered by the Committee and the nature of the evidence existing in support of the allegation and shall offer him or her the opportunity to make any answer thereto; provided that he or she shall not be obliged to answer. 8. Upon consideration of the allegations and evidence submitted and of any answers given, the Committee shall be entitled to resolve that no further investigation shall be carried out if there is no prima facie case to answer. In that event, it shall report to the Presbytery which shall recall any administrative suspension imposed in terms of section 3(1). The Committee shall also advise the person or persons (if any) who made the allegation or allegations of its decision and the reasons for it. Without prejudice to its existing powers of superintendence the Presbytery may issue an instruction to the Respondent regarding his or her conduct. Any disobedience of that instruction may be treated as a disciplinary offence. 9. (1) In the event that the Committee of Presbytery decides to initiate disciplinary proceedings it shall prepare (a) a Notice of Complaint setting forth the alleged disciplinary offence or offences (hereinafter referred to as “charge” or “charges”) in respect of which it is proposed that disciplinary proceedings should be commenced, and (b) a summary of the evidence, whether from witnesses,
documents or otherwise, that is considered to support the charge or charges made. (2) The Notice of Complaint will run in the name of the Committee of Presbytery and will be in such form that, in respect of each offence, there is set out the time and place of the disciplinary offence and the facts necessary to constitute the disciplinary offence. . Part 3 Disciplinary Proceedings 10. (1) The Committee of Presbytery shall initiate disciplinary proceedings by lodging with the Solicitor of the Church: (a) a Notice of Complaint setting forth one or more charges; (b) a list of the names and addresses of the witnesses to be adduced by the Committee of Presbytery; (c) a list of the productions to be put in evidence by the Committee of Presbytery; and (d) a request to appoint a first diet and to grant a warrant to the Committee of Presbytery for service of the Notice of Complaint and to cite the Respondent to attend the first diet. (2) The Solicitor of the Church shall notify the Convener and Vice-Convener of the Legal Questions Committee and arrange for the selection of a Presbyterial Commission in terms of section 1(f) and shall, thereafter, in the name of the Commission, pronounce an Order – (a) fixing a date for the first diet, being a date not earlier than fourteen days after the expiry of the period specified for intimation and service; and (b) granting warrant for service of the Notice of Complaint on, and intimation of the first diet and a list of the names of those selected to serve on the Presbyterial Commission to, the Respondent within such period as he or she shall appoint. (3) The Committee of Presbytery shall, within the period fixed for intimation and service, intimate to the Respondent the date fixed for the first diet and shall serve upon him or her by recorded delivery post or personally by means of a Sheriff Officer – (a) the Notice of Complaint and lists of witnesses and productions; and (b) a summary of the evidence specified in section 9(1)(b). (4) In the event that service of the Notice of Complaint has not been timeously or regularly effected the Solicitor shall as aforesaid (a) grant warrant for the re-service of the Notice of Complaint as above; and (b) fix a fresh date for the first diet, being a date not earlier than fourteen days after the expiry of the period specified for the fresh intimation and service. 11. (1) The first diet will be held before the Presbyterial Commission. (2) At the first diet the Respondent may challenge – (a) the competency or relevancy of the Notice of Complaint; or (b) the constitution of the Presbyterial Commission: provided that in respect of any challenge to the competency or relevancy of the Notice of Complaint intimation of the ground of such challenge must be given to the Committee of Presbytery and the Presbyterial Commission not later than 24 hours before the diet is due to be held and any challenge made in terms of this sub-section shall ordinarily be disposed of immediately unless the Presbyterial Commission considers that the matter cannot be decided without proof. (3) The Presbyterial Commission may – (a) adjourn the first diet for whatever reason; (b) allow the Notice of Complaint to be amended by deletion, alteration or addition so as to cure any error or defect in it or meet any objection to it, on such conditions as it thinks fit; (c) sustain or repel any challenge to the competency or relevancy of the Notice of Complaint in whole or in part; (d) defer consideration of such challenge until after proof. (4) After disposal or deferment of any challenge referred to in subsection (2) above, the Respondent shall be required to state whether he or she admits or denies each of such individual charges, if any, which remain on the Notice of Complaint. (5) Where the Respondent admits all the individual charges brought the Presbyterial Commission shall, after hearing and considering any statement by the Committee, and any statement by or on behalf of the Respondent in mitigation, pass such censure upon the Respondent as appears to it appropriate or discharge the Respondent and shall record their decision in a document signed by the Convener. (6) Where the Respondent denies some or all of the charges brought, the Presbyterial Commission will appoint a date for the proof of those charges which are denied and defer consideration of the question of censure in respect of any charges which are admitted until close of the proof; provided that the Committee of Presbytery may – (a) accept any denial of any individual charge; or (b) accept an admission of an individual charge in part; in which case the proof will be confined to those charges which are denied and which denial is not accepted by the Committee of Presbytery. (7) The date appointed for proof shall be not less than 28 days nor more than 56 days after the first diet or any adjournment thereof, but the Presbyterial Commission shall have power, upon cause shown by either party to fix a date outwith that period, or to adjourn the proof diet. (8) Where the Presbyterial Commission has appointed a date for proof, it may make an Order requiring the Respondent to intimate to the Presbyterial Commission and to the Committee of Presbytery within such period as it shall specify a list of the names and addresses of the witnesses to be adduced and a list with copies of the productions to be put in evidence by him or her. (9) Where (a) the Respondent has intimated in writing to the Committee of Presbytery and to the Presbyterial Commission (i) that there is no challenge in terms of subsection (2) hereof and (ii) that the charge or charges on the Notice of Complaint are all denied, and (b) both the Committee of Presbytery and the Respondent intimate in writing to the Commission that there are no other matters which they wish to raise at the First Diet, it shall not be necessary to hold a First Diet and instead the Convener, Vice-Convener and Secretary of the Commission shall appoint a date for the proof of the charge or charges and make any order in terms of subsection (8) hereof. 12. The first diet and proof shall take place in public except (a) where either the Committee of Presbytery or the Respondent request that, and show cause why, the hearing, or part thereof, be held in private, or (b) where the hearing of evidence from any person, or narration of facts thereof, in the opinion of the Presbyterial Commission is likely to prejudice morals or public order, to affect adversely the interests of justice or the private life of the parties or in any other special circumstances where publicity would prejudice the interests of justice, provided that in any event the Presbyterial Commission shall restrict publicity only to the extent strictly necessary. 13. If a party fails to attend or be represented at the time and place fixed for the proof, the Presbyterial Commission may (a) adjourn the proof to a later date; (b) if that party is the Committee of Presbytery, dismiss the Notice of Complaint; or (c) if that party is the Respondent, proceed to hear the proof in his or her absence, to reach a decision thereon and if appropriate to pass censure. 14. (1) The rules of civil evidence in Scots law shall apply and the standard of proof shall be the balance of probabilities. Witnesses shall be required by the Convener to take the oath or to affirm prior to giving evidence. (2) The proceedings at the proof shall be recorded. The shorthand writer or technician shall be sworn by the Convener prior to the commencement of the hearing. (3) If produced by either party, the notices issued by the Committee of Presbytery in terms of section 5(1)(a) and/or section 7 hereof and any answers thereto by the Respondent shall be admissible in evidence. (4) In subsection (2) “The proceedings at the proof” shall, unless the Presbyterial Commission shall direct otherwise, mean the whole proceedings to the close of the proof, including, without prejudice to that generality (a) discussions on all matters arising in the course of the proof and the decision of the Presbyterial Commission on any such matter, (b) the evidence led at the proof and (c) the speeches of the parties or their counsel or solicitors on their behalf. 15. Each party shall be entitled to give evidence, to call witnesses, to question any witness and to address the Presbyterial Commission, provided that the Respondent shall have the right to speak last. 16. Subject to sections 14 and 15, the conduct of the proof shall be in such manner as the Presbyterial Commission considers most appropriate for the determination of the issues before it and to the just handling of the proceedings. 17. (1) No proof shall fail or the ends of justice be allowed to be defeated by reason only of any discrepancy between the Notice of Complaint and the evidence. (2) It shall be competent at any time prior to the decision of the Presbyterial Commission, unless the Presbyterial Commission see just cause to the contrary, to amend the Notice of Complaint by deletion, alteration or addition, so as to – (a) cure any error or defect in it; (b) meet any objection to it; or (c) cure any discrepancy or variance between the Notice of Complaint and the evidence. (3) Nothing in this section shall authorise an amendment which changes the character of the charge or charges, and, if it appears to the Presbyterial Commission that the Respondent may in any way be prejudiced in his or her defence on the merits of the charges by any amendment made under this section, the Presbyterial Commission shall grant such remedy to the Respondent by adjournment or otherwise as appears to the Presbyterial Commission to be just. 18. (1) At the close of the proof the Presbyterial Commission shall give its decision on whether and if so to what extent each charge on the Notice of Complaint has been established and the decision shall be recorded in a document signed by the Convener, provided that the Presbyterial Commission may take time to consider its decision and adjourn the diet of proof to a later date for that purpose. (2) Upon giving its decision and, in the event of any charge being found to be established or admitted (including, without prejudice to that generality, those charges admitted and deferred in terms of section 11(6)), after hearing and considering any statement by the Committee and the Respondent in mitigation, the Presbyterial Commission shall pass such censure if any upon the Respondent as appears to it appropriate according to the circumstances of each charge. (3) After giving its decision in terms of subsection (1), the Presbyterial Commission shall set forth in a document (a) those findings in fact which it has made, and (b) the censure if any which it has imposed, giving reasons for both elements of its decision. The Presbyterial Commission shall also record the majority by which its decision in respect of (i) each charge, and (ii) censure or absolute discharge was reached. (4) The Secretary of the Presbyterial Commission shall send the documents referred to in subsections (1) and (3) to each of the parties, the Presbytery Clerk and the Principal Clerk of the General Assembly and shall make them available for public inspection. Part 3A Accelerated Procedure where the Respondent desires to admit allegation(s) 18A (1) If at any stage of proceedings prior to the service of a Notice of Complaint , the Respondent indicates that he or she wishes to admit all or any of the allegation or allegations made against him or her, he or she shall be entitled so to intimate to the Committee of Presbytery. Said admission must be in writing and signed by the Respondent. It should include a statement by the Respondent that he or she has received legal advice on the matter. The admission shall not be accepted by the Committee in the absence of a statement that legal advice has been received. In the event that the Committee is willing to accept the said admission, either immediately or after making such other enquiries or investigations it considers appropriate, it shall as soon as practicable proceed to adjust and agree a Joint Minute with the Respondent or his or her Counsel or Solicitor. Said Joint Minute which shall be signed by or on behalf of both parties shall set out: (a) the disciplinary offence or offences which are admitted ; (b) an agreed summary of the material facts; and (c) such other information as it is agreed should be before the Presbyterial Commission to assist it in reaching an appropriate disposal of the case. In the event that the Committee is either unwilling to accept the said admission or, following upon discussions with the Respondent or his or her Counsel or Solicitor, it concludes that it will not be possible to agree the terms of the Joint Minute, it shall be entitled to resume its investigations, and if appropriate proceed to prosecute the case in accordance with the other provisions of this Act. (2) The Committee shall after signature thereof transmit the Joint Minute to the Solicitor of the Church who shall proceed to notify the Convener and Vice- Convener of the Legal Questions Committee and arrange for the selection of a Presbyterial Commission in terms of section 1(f). The Solicitor shall thereafter in name of the Commission pronounce an Order fixing a date for a diet before the Commission, being a date not earlier than fourteen days after the date of intimation thereof. The Solicitor shall intimate the said Order to the Committee and the Respondent and his or her Counsel or Solicitor. (3) At the said diet, the Presbyterial Commission shall, after hearing and considering any statement by the Committee and any statement by the Respondent in mitigation, pass such censure upon the Respondent as appears to it appropriate or discharge the Respondent and shall record its decision with brief reasons therefor in a document signed by the Convener. The Commission shall be entitled inter alia to take into account the fact that an early plea was made and mitigate any censure as it sees fit. (4) In the event that the Respondent at the diet withdraws or modifies to any extent the admission previously made to all or any of the disciplinary offences, unless this is accepted by both the Committee and the Commission, the diet shall be adjourned and thereafter the case shall proceed as directed by the Commission in accordance with the other provisions of this Act. Part 4 Appeals 19. (1) Subject to the provisions of sections (2) and (3), if either the Committee of Presbytery or the Respondent is dissatisfied with any decision of the Presbyterial Commission, they may appeal to the Judicial Commission at the conclusion of the proceedings. Appeals may be taken only on points of law or against severity of censure. For the purposes of this Act only, the parties before the Judicial Commission shall be the Committee of Presbytery and the original Respondent; and the Clerk of the Judicial Commission shall invite the Presbyterial Commission to furnish a report in writing on the case generally and in particular on the grounds of appeal contained in the Note of Appeal, for the assistance of parties and of members of the Judicial Commission. No right of appeal or dissent-and-complaint shall be allowed in respect of any act or decision done or taken in terms of this Act, otherwise than in accordance with the provisions of this Act. (2) Any appeal taken in terms of subsection (1) which relates to matters of doctrine shall be to the General Assembly in terms of Act II 1988 section 3 as amended.139 (3) For the purposes of this Act, an appeal on part of a case or on a procedural point shall not sist procedure except with the leave of the Presbyterial Commission. Failure to obtain such leave does not reduce the right to appeal, but such appeal shall be included when an appeal is taken at the conclusion of the proceedings in terms of subsection (1). (4) Any appeal in terms of this section shall be by way of Note of Appeal lodged with the Principal Clerk of the General Assembly within 21 days of the date on which the appellant receives intimation of the written decision of the Presbyterial Commission and shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed. (5) Appeals to the Judicial Commission shall be heard within 56 days of their being lodged, or within such further period as the Judicial Commission shall on special cause allow, by the Judicial Commission, but excluding any member (a) who has or has had any connection whatever with the case, (b) who is a member of the Presbytery, or a congregation within its bounds, which has initiated the proceedings which are the subject of appeal, or (c) who is objected to for cause shown by any party to the appeal and whose objection is sustained by the Judicial Commission. (6) The judgement of the Judicial Commission shall be final and shall be sent in writing to each of the parties and reported to the General Assembly in the form of a minute of its findings. (7) In the case of any appeal against the severity of censure, taken by any party, it shall be open to the Judicial Commission to vary the censure in the direction of greater severity or greater leniency. Part 5 Subsequent Process 20. The Presbytery shall meet within not less than twenty-one and not more than thirty-five days after receiving intimation of the written decision of the Presbyterial Commission or, in the event of an appeal being taken, after receiving intimation of the judgement of the Judicial Commission or the General Assembly and – (1) In the event that the decision has not involved suspension or removal from office, it shall (a) lift the administrative suspension upon the person; (b) relieve the interim moderator of duty; (c) undertake such steps of discipline against other individuals and superintendence of its members and congregations as it finds necessary. (2) In the event that the decision involved (i) a suspension of such length that, in the judgement of the Presbytery, the pastoral tie requires to be terminated, or (ii) the removal of the status of the Respondent. (a) any parish of which the person was minister shall be deemed to have become vacant on the date of the meeting of Presbytery and any other ordained appointment which he or she occupied shall terminate on that date; (b) the appointment of an interim Moderator shall be confirmed or a new appointment made; (c) the Presbytery shall undertake such steps of discipline against other individuals and superintendence of its members and congregations as it finds necessary. (3) In the event that the decision involved a suspension which is not of such a length that the pastoral tie is to be terminated (a) the appointment of an interim Moderator shall be confirmed or a new appointment made; (b) the Presbytery shall undertake such steps of discipline against other individuals and superintendence of its members and congregations as it finds necessary. (4) This section shall apply mutatis mutandis to Deacons. Part 6 Miscellaneous 21. The Committee of Presbytery and the Respondent may be represented by counsel and/or solicitor at any stage of the investigatory proceedings, disciplinary proceedings or appeal. 22. The expenses of the Committee of Presbytery and the Respondent in the conduct of proceedings under this Act and any appeal following thereon, and the necessary expenses of witnesses, as the same may be taxed by the Auditor of the Court of Session, after hearing parties, shall be met from the central funds of the Church, but only as follows: (1) Expenses shall be paid on the basis of the current Tables of Fees of Solicitors and witnesses in the Sheriff Court in civil causes on a party and party basis only. Any provision in such Table of Fees for a percentage or other increase in fees shall not apply. (2) The costs of legal advice or representation by a solicitor shall be payable in terms of sub-section (1). Counsel’s fees shall be paid from the funds of the Church only if, and to the extent to which, the employment of counsel has been sanctioned in terms of sub-section (3) or sub-section (4). (3) (a) When a Notice of Complaint has been lodged with the Solicitor of the Church in terms of section 10, and as soon as he or she has identified the Convener and Vice-Convener of the Presbyterial Panel to hear the case, the Committee of Presbytery or the Respondent may apply to the Solicitor for permission to employ counsel to advise or represent them. (b) On receipt of any such application, the Solicitor shall arrange for a hearing before one Convener and Vice-Convener of the Presbyterial Commission, not being the Convener and Vice-Convener who will serve on the Commission chosen to hear the case; and at the hearing all parties shall be entitled to be present and make representations. The Convener and Vice- Convener shall, after hearing parties, decide whether to sanction the payment of counsel and, if they do so, they shall specify whether it be for junior counsel only, senior counsel only, or both senior and junior counsel, and whether for the whole case up to the final judgement of the Presbyterial Commission, or only for part thereof. (c) Authorisation in terms of paragraph (b) above may be made retrospective, in respect of legal advice. (4) (a) When an Appeal has been submitted to the Principal Clerk in terms of s.19 of this Act, the Appellant or Committee of Presbytery may apply to the Principal Clerk for permission to employ counsel to advise or represent them. (b) On receipt of any such application, the Principal Clerk shall arrange for a hearing before one Convener and Vice-Convener of the Presbyterial 141 Commission, who may not be the Convener and Vice-Convener who served on the Commission which heard the case, but who may be the same Convener and Vice-Convener who heard an application in terms of sub-section (3)(b) above; and at this hearing all parties shall be entitled to be present and make representations. The Convener and Vice-Convener shall, after hearing parties, decide whether to sanction the payment of counsel and, if they do so, they shall specify whether it be for junior counsel only, senior counsel only, or both senior and junior counsel, and whether for the whole appeal or only for part thereof. (c) For the avoidance of doubt, the Convener and Vice-Convener acting in terms of subsection (4)(b) shall not have power to authorise any expenditure prior to the lodging of the Appeal”. (5) For the purposes of this section all references to ‘junior counsel’ shall be deemed to refer also to solicitor advocates. (6) There shall be no right of appeal against any decision made in terms of this section. 23. Where in the view of the Commission it is necessary so to do to ensure the interests of justice, on the motion of either party or ex proprio motu, the Presbyterial Commission shall have power to order either party to produce within such period as the Commission shall consider reasonable, any document or other article in that party’s possession and any such document or other article shall be a Production in the proceedings and may be founded upon. Such a power shall be exercisable at any time up to the conclusion of the Proof. 24. The Presbyterial Commission may relieve a party from the consequences of a failure to comply with a provision of this Act shown to be due to mistake, oversight or such other excusable cause on such conditions as the Commission thinks fit. 25. The Legal Questions Committee shall have power to make regulations to regulate and prescribe the practice and procedure to be followed in any proceedings brought before the Presbyterial Commission in terms of this Act, provided that such regulations shall be laid before and be subject to alteration, revocation, amendment or modification by the General Assembly. 26. No member of the Presbyterial Commission shall participate in any proceedings brought by a Presbytery of which he or she is a member or within the bounds of which there is a congregation of which he or she is a communicant member. This section shall not apply to the Solicitor of the Church. 27. Act II 1988 anent the Judicial Commission is amended as follows:- Amend section 3 to read as follows:- In terms of section 1 above, the Judicial Commission shall hear Appeals against the decisions of Presbyterial Commissions in cases relating to discipline of Ministers, Licentiates, Graduate Candidates and Deacons except in matters of doctrine. The findings and final judgement of the Judicial Commission in Appeals in terms of this section shall be incorporated in a written Report to the General Assembly, but shall not be subject to review by the General Assembly. Amend the Rules of Procedure rule 2 as follows:- After “Inferior Court” add “or Presbyterial Commission”. Amend Rules of Procedure rule 3 as follows:- Add at the end the words “, except as excluded by the Act Anent Discipline of Ministers, Licentiates, Graduate Candidates and Deacons [Act III 2001]”. Amend the first sentence of Rules of Procedure rule 4 to read:- “In Appeals arising under the Act Anent Discipline of Ministers, Licentiates, Graduate Candidates and Deacons [Act III 2001] the Secretary of the Presbyterial Commission shall within fourteen days of the receipt of the written statement of Appeal transmit to the Clerks of the Judicial Commission the written statement of Appeal, the Notice of Complaint, Notice of Special Defence, if any, productions, transcript of evidence, and the whole record of proceedings”. Amend Rules of Procedure rule 8 as follows:- In the second sentence delete the first occurrence of the word “The” and substitute “An”. Amend Rules of Procedure rule 10 as follows:- After “the Inferior Court” add “, the Presbyterial Commission”. 28. Act VII 1935 anent Trials by Libel is hereby repealed. Act XIX 1889 shall not apply in relation to proceedings under this Act.
Introduction
Does the Church of Scotland’s way of disciplining ministers reflect the spirit and intention of Christianity in general and of the New Testament in particular? Does the procedure of Act III fulfil natural justice? Will human rights legislation affect the way Act III is applied in future?
Other Churches’ discipline of their clergy is very different from that of the Church of Scotland and may be described as follows:
The Church of England - personal
The Methodist Church in Britain - familial
The Free Church of Scotland - spiritual
The Baptist Union of Scotland - Biblical
In comparison, the Church of Scotland may be described as -
legalistic.
The way the Church of Scotland disciplines its ministers is also different from the way government agencies and local authorities treat their staff and different from the way the Scottish courts work in relation to employment law and court procedure.
To be placed under the strictures of Act III is an overwhelming, frightening and intimidating experience. Andrew Herron wrote, “the word “discipline” has come to acquire a chilling sound”. 1 Ministers are daunted by the complex legalism. James L Weatherhead described Act VII 1935 without apology as “Trial by Libel” 2 commenting “ the conduct of the trial will follow the normal practice in the civil courts”. 3 This, wrote Weatherhead “refers to the ways in which the Church deals with offenders”. 4 This is the language of criminality. Is it appropriate in the Church of Jesus Christ? Is it proportional in all circumstances?
Act III 2001 is mediaeval in concept, tone, style, language and content. It is complex, authoritarian and legalistic. It is unBiblical and unspiritual. It has no theology. It is reflective of a Christianity on the margins of apostolicity and of a negligible understanding of Christian community. Its process is adversarial from initiation, through investigation committee to quasi-court procedures at Presbytery level and onwards to Judicial Commission.
Act III does not state at its outset or in its text any commitment to follow the teaching of the New Testament. The Act does not state at its outset or in its text any commitment to fairness or equal treatment. The Act does not state at its outset or in its text any commitment to natural justice. The Act does not clarify its relationship to human rights legislation. The Act emphasises the authority of Presbyteries and the Church but does not equally or fully express the rights of ministers subject to discipline. There may be an implicit expectation of an ecclesiastical form of justice but in 2011 and for the future what is implicit requires to be made explicit. Church of Scotland history is not known for singular and unexceptional justice.
In the Church of Scotland there is a long history of secession and of parties not wishing to resolve disputes; there is a history of non-forgiveness; there is a history of separation. There has been little culture of reconciliation at congregational level. Present investigative process conforms to and continues this tradition.
Comparisons with Other Churches
The Church of England - personal
The Church of England’s regulations have a personal and a pastoral aspect by virtue of having a hierarchy of bishops with authority over clergy.
“The disciplinary process is started by a formal written complaint of misconduct, which is made to the bishop (or archbishop, as the case may be). There are four grounds on which misconduct may be alleged, namely: acting in breach of ecclesiastical law; failing to do something which should have been done under ecclesiastical law; neglecting to perform or being inefficient in performing the duties of office; or engaging in conduct that is unbecoming or inappropriate to the office and work of the clergy. The complainant must produce written evidence in support of the complaint, and verify the complaint by a statement of truth. The complaint and evidence in support are referred by the bishop to the diocesan registrar for advice on (1) whether the complainant has a proper interest in making the complaint, and (2) whether the allegations are of sufficient substance to justify proceedings under the Measure. This is the 'preliminary scrutiny' stage.
Having received the registrar's advice, the bishop may decide that it should be dismissed, in which case it will proceed no further under the Measure. If on the other hand the bishop considers that the complainant has a proper interest in complaining and that the complaint deserves further consideration, he will invite the priest or deacon about whom the complaint is made ('the respondent'), to send a written answer verified by a statement of truth, together with evidence in support. The bishop will then decide which of five possible courses of action available to him under the Measure is the appropriate one to pursue. He can: take no further action; record the complaint conditionally for a period of up to five years, such that if another complaint is made within that time and is dealt with, the two complaints may then be dealt with together; refer the complaint to a conciliator in an attempt to obtain agreement between the complainant and the respondent as to how the complaint should be resolved; impose a disciplinary penalty (but only with the consent of the respondent); or require the complaint to be formally investigated by the Designated Officer, a barrister employed in the Church of England Legal Office”. 5
In the Church of England, the bishop has the initial authority to investigate and decide on matters of discipline of clergy. This is a personal and a pastoral relationship at the outset, much different from the process in the Church of Scotland. The bishop can invoke conciliation at an early stage. The bishop can impose a penalty but only with the permission of the respondent. This is a personal and a humane means of dealing with disciplinary matters but it also depends much on the personality and opinion of one bishop in each case. Further process of appeal is available against any episcopal judgement.
The Methodist Church in Britain - familial
The Complaints and Discipline Procedures of the Methodist Church emphasise community and family, humility and equality. There is a sense of seeking the truth rather than top down authoritarianism.
“The need of the Methodist Church for a complaints and discipline process stems from the imperfect nature of human beings. The Church is a fallible community and its members on occasion behave in ways which are damaging to themselves and others and which undermine the credibility of the Church’s witness. A complaints and discipline process is one of the means by which the Church recognizes that all human beings are made in the image of God and are entitled to be treated as such, and by which it maintains its witness to the new life in which we are called through Christ.
Through the complaints and discipline process members of the Methodist Church are accountable to the Church in matters of faith and behaviour. The Church seeks to enable healing and reconciliation to take place through that accountability whenever possible. The Church also responds to the call through Christ for justice, openness and honesty, and to the need for each of us to accept responsibility for our own acts.
The complaints and discipline process therefore seeks to embody the following principles:
• the initiation of complaints should not be limited to members of the Church;
• there should be no difference in principle between ordained and lay people in
the way in which complaints against them are dealt with;
• the possibility of reconciliation should be explored carefully in every case in which that is appropriate;
• help and support should be offered both to the person making the complaint
and to the person complained against at every stage during the process;
• the process should be fair;
• the person or body making the decision at each stage should be competent to do so;
• there should be a means of correcting any errors which may be made;
• there should be a means on ensuring compliance with any decision;
• there should be appropriate requirements relating to confidentiality and record-keeping.
•
As the Body of Christ the Church seeks to embody justice, and to challenge injustice. Complaints and discipline procedures are one means of searching for truth. Justice involves loving, honouring and respecting others, and ensuring that processes and procedures are accessible, consistent, fair and transparent. Justice is also dynamic, implying an active concern for those who are vulnerable, marginalised, or oppressed. The emphasis is on the settlement of disputes by mediation or reconciliation at all stages whilst retaining powers of discipline for serious matters. This allows for the
basic pastoral and conciliatory character of the Church to be maintained while protecting those who have a legitimate grievance from not being taken seriously or being listened to”. 6
Accountability is described as are healing and reconciliation. Equality before God is included. No difference is made between ordained and lay people.
The Free Church of Scotland - spiritual
The Free Church is circumspect and spiritual in its discipline of its ministers. It seeks to avoid straining at gnats and swallowing camels.
“Discipline is Biblically based and this implies that no action or conduct can be regarded as censurable unless it is so declared in Scripture. The consciences of people cannot be bound by anything but by the word of God who alone is Lord of the conscience. Nor does every breach of Biblical principle justify formal disciplinary action by the Church, for the purpose of discipline is not to pry into the privacy of each person and family. Only such misbehaviour as brings open reproach on the name and cause of Christ and occasions public scandal is to be matter of discipline. Public teaching and pastoral counselling will remind all concerned of the need to maintain godliness of life in private. Discipline is concerned with what obtrudes into public life. The need of formal process may be obviated by private counselling by pastor and ruling elder where breach of Christian conduct has not been flagrant and has not become common knowledge to the prejudice of the Christian fellowship. This procedure accords with our Lord’s counsel recorded in Matthew 18:15 and is often effective in disarming resentment and resistance and in winning the errant one to repentance and carefulness of conduct. Matthew 18:15 reads If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over.
The difference between Church discipline and the judicial proceedings of the State is highlighted by the fact that the Church is concerned with the moral and spiritual well-being of its members. However distasteful and distressing it may be for a Presbytery to initiate a process against one of its ministers, the overriding consideration must be the honour of Christ and the purity of His Church. No serious allegation against a minister’s conduct that breaches Biblical norms and impinges the good name of the Church, is to be overlooked. On the other hand, as by the very nature of his work a minister is vulnerable to accusations of misconduct, a Presbytery must exercise great care and prudence be-fore itself originating or encouraging others to originate a formal process. It may happen that allegations made to Presbytery against a minister do not relate to immoral conduct but to doctrinal pronouncements by him deemed to be unsound, or to practices that are deemed prejudicial to the good order and peace of the Church. In such cases the Presbytery must be careful to assess the knowledge and understanding and the known and avowed principles and motives of those who make the allegations, before taking any formal action. Obviously, early conference with the minister concerned is desirable, and he must be kept informed of all actions to be taken by Presbytery in the matter. In considering the allegations laid before it, Presbytery may conclude that: (1) though there appears to be some substance in the allegations they do not amount to charges relating to errors vitally prejudicial to the faith; (2) these minor errors do not appear to be stubbornly maintained or to be assiduously spread with a view to corrupt people; (3) nor indeed are the errors alleged being widely accepted and supported. If these are the conclusions of Presbytery their action must aim at calming and soothing the passions aroused. Conferences may be arranged to achieve the renouncing of even minor errors, and the procurement of understanding and reconciliation”. 7
The Free Church of Scotland’s procedures invoke Biblical precedent and name and seek to honour Jesus Christ. They are more cautious and more pastoral and less legalistic and authoritarian. Significantly, they distinguish private action and public action and they advise initial informal personal contact with the person against whom disciplinary action may be required and calming considerations to prevent escalation. The Free Church’s criteria for invoking discipline are qualitatively different from those in the Church of Scotland.
The Baptist Union of Scotland - Biblical
The Baptist Union of Scotland’s disciplinary proceedings are confessionally based on the New Testament, quoting chapter and verse and invoking also the spirit of the New Testament Gospel of redeeming love.
“Action in relation to the Board of Ministry rules, when the behaviour of a minister is alleged to be unbecoming, shall be always in the spirit of humility and of the gospel of love (Galatians chapter 6 verse 1 and Matthew chapter 7 verses 4-5). Such situations should be handled within, and by, the church and not in the courts of law except in cases where allegations are made of an offence which, under current legislation, require to be reported (1 Corinthians chapter 6 verses 6ff). There is a clear process for the handling of all such allegations within a context of mutual respect, confidentiality and openness (Matthew chapter 18 verses 15-20). Such processes are always, first, with a view to establishing innocence or guilt and, if the latter, with a view to penitence, forgiveness, and restoration (Galatians chapter 6 verse 1).
Discipline is considered under three categories, minor faults, serious faults and conduct unbecoming a minister. Minor Faults will be dealt with by an informal conversation with either the appropriate Regional Minister or, exceptionally, The Head of Ministry / Ministries Advisor. The conversation will be noted on file, but the contents in detail not logged. The aim is to help the minister become aware of a potential failing and help them to address their behaviour. If the minister holds office in a local church, these notes should also be kept by the church, normally in the keep of the Church Secretary. Where the matter is more serious, or the fault remains unacknowledged by the minister, the following procedure will be used. The minister will normally be given a Formal Warning. They will be advised of the reason for the warning, that it is the Second stage of the disciplinary procedure and of their right of appeal. A brief note of the Formal Warning will be kept but it will be disregarded after twelve months subject to satisfactory conduct and performance and a further infringement after twelve months will not automatically trigger the response in 3.2.3. but would invoke a return to the admission of a File Note. Where persistent failure to address a minor fault occurs a Final Warning would be given, and, if the matter were deemed sufficiently serious, the invocation of Removal from the Register. Unbecoming conduct will be that which is considered to be contrary to the good conduct expected of those who hold office in the church, and which brings both themselves and the church into disrepute”. 8
This process employs proportion and purposefully includes New Testament principles of penitence, forgiveness and restoration.
How did the Church of Scotland come to discipline its ministers in the way that it does?
Historically the Church of Scotland has modelled its internal government and organisation on a ecclesiastical-juridical basis. In continues to operate in a legalistic way. It calls its representative bodies namely Kirk Sessions, Presbyteries and General Assemblies ‘courts’. Legalism rather than the personal, the familial, the spiritual and the Biblical dominates all Church of Scotland procedures. The Church operates with Acts whose style and contents are ecclesiastical reflections of secular law. However these operate in a very different environment from the law of the land. Act III anent the discipline of ministers creates distance, barriers and complexity at its outset and these increase as proceedings continue.
One reason for this means of governance and organisation is the Church of Scotland’s self-conception as a ‘national church’ embodied in the law of the land as is described here:
“The church, being a national church, must have at least some of the characteristics of a public authority rather than a private institution. The courts of the church may be understood as having the status of public fora, even though the Court of Session is extremely reluctant to review their decisions. The courts of the church may be subject to the ECHR for the purposes of disciplinary proceedings which must be effected by an independent and impartial tribunal and recent changes in disciplinary procedures would appear to be a response to that situation. Most importantly for the present discussion, the courts of the Church of Scotland, as well as being deliberative bodies, are treated by the Court of Session as courts of law in the strict sense, with a parallel jurisdiction to its own. The Court of Session therefore routinely declines to review the decisions of church courts; and there are numerous judicial dicta to that effect, for example: We have as little right to interfere with the procedure of the church courts in matters of ecclesiastical discipline as we have to interfere with the proceedings of the Court of Justiciary in a criminal question. Or: The jurisdiction of the Church courts, as recognised judicatories of this realm, rests on a similar statutory foundation to that under which we [ie the Court of Session] administer justice within these walls . . . Within their spiritual province the Church courts are as supreme as we are within the civil. The Court of Session will not sustain a claim for reparation against a court of the Church of Scotland for a judgment in a proper case of discipline duly brought before it. In addition, the courts of the Kirk are immune from suit for defamation in respect of their proceedings when acting in a judicial capacity”. 9
The governmental and organisational structure of the Church of Scotland reflects part of the character of the Scottish Reformation.
“At the Reformation, there was a clear cut decision to abandon priesthood and sacramentalism. For over four hundred years the Church of Scotland represented a type of Christianity which was existential in nature. God and People, People and God met together. The model was found in the Old rather than the New Testament, and there was a sense of community, identity and history similar to that seen in Judaism. The natural tendency of all human life to ‘believe in God’ (in some form or another) may have been a strong part of the spiritual nature of the Reformed Church. It was made easier for people to participate. There is something desperately second-hand about the phrase ‘the ordinances of religion’ which were to be dispensed throughout the length and breadth of Scotland by the national Church. Centuries of nominalism resulted and its heritage informs the Church of Scotland’s current predicament. The idea that the Church was there to ‘make people Christians’ was not forgotten, but it was presented in the wider context of non-sacramentalism and infrequent obligation…God, history, Jesus Christ - that may well have been the order of understanding at the Reformation which has a strong political dimension and the struggles of the seventeenth century which were political as well as spiritual in nature, strengthened that sense of identity and calling….Protestantism freed human spirits and led to the creation of the western world that we know today. Though it has many faults, its existence is owed to the Reformation. But unless it remains Christ-centred, Protestantism leads logically to secularism….Secular legalism characterises the Church of Scotland at the centre today. This contradicts the constitutional purposes of the Church of Scotland and contradicts the faith understanding of its membership”. 10
Is it necessary for the present and future government and organisation of the Church of Scotland to continue to have courts modelled on secular courts? Is it appropriate for a Christian Church? The government and organisation of a church is not part of the esse of the church but only of the bene esse of the church. Neither does the Church of Scotland as a national Church require continuance of legalistic processes and procedures since other Christian Churches survive without them.
Ministers who are at best channels of the good news of forgiving Grace but who find themselves subjected to proceedings which contradict the nature and spiritual dynamic of their calling may suffer much. There are mercifully few cases of the equivalent of gross professional misconduct in the ministry of the Church of Scotland. For a minister not guilty of gross professional misconduct who is made the subject of discipline under Act III, the process is spiritually enervating and diminishing. It causes personal isolation from colleagues and brings the unwelcome status of a shamed person. From the outset, the sense is of being considered guilty until or unless proven innocent. The person so subject becomes a ‘non-person’.
In the New Testament various Christian principles concerning Christians’ treatment of one another are recorded.
Matthew 5: 39 states: If someone strikes you on the right cheek, turn to him the other also. Matthew 6: 12 states: Forgive us our debts as we forgive our debtors 1 Corinthians 6: 7 states: The very fact that you have lawsuits among you means that you have been completely defeated already. Colossians 3: 13 states: Bear with each other and forgive whatever grievances you may have against one another. Forgive as the Lord forgave you. Other Churches take cognisance of Matthew 18:15 which reads If your brother sins against you, go and show him his fault, just between the two of you. If he listens to you, you have won your brother over as a starting point for the discipline of ministers and some seek to conclude disciplinary proceedings in the spirit of Galatians 6:1 ..if someone is caught in a sin, you who are spiritual, should restore that person gently. 11
No-one could possibly describe the proceedings under Act III as giving example of these teachings.
Secular Principles and Processes
It is evident that some secular processes for employee discipline offer fairer treatment than the Church of Scotland offers its ministers. Romans 2: 14 states: Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. The righteousness of the Church should exceed that of secular processes. The Church may preach justice to others, but it must exemplify justice within its own proceedings towards those whose office has established and preserved and continued the Church.
Natural Justice includes the notion of procedural fairness and may incorporate the following interpretation:
“A person accused should be given adequate notice about the proceedings (including any charges). A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome. Proceedings should be conducted so they are fair to all the parties. Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party. A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations. Justice should be seen to be done”. 12
The Declaration of Human Rights Article 7 states:
“All are equal before the law and are entitled without any discrimination to equal protection of the law”. 13
The European Convention on Human Rights Article 6 states:
“In the determination of a person’s civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. 14
The Bangalore Principles of Judicial Conduct endorsed by UNHRC 2003 state:
“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore and exemplify judicial independence in both its individual and institutional aspects. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. Integrity is essential to the proper discharge of the judicial office. Propriety, and the appearance of propriety, are essential to the performance of all the activities of a judge. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. Competence and diligence are pre-requisites to the due performance of judicial office”.15
Local authority procedures for the discipline of staff are markedly different from those of the Church of Scotland as this example shows.
“It is essential to ensure the credibility of the Disciplinary Policy…To do this, employees must believe in the value of it. The attitude and conduct of employees will be seriously affected if…you are not seen to apply the same rules and considerations to each case. The Employment Relations Act 1999 (sections 10-15) provides all employees with the right to make a reasonable request to be accompanied during disciplinary hearings…you must remember to advise an employee in writing of their right to representation. The initial investigation process should take no more than 20 days. An oral warning will remain on the employee’s personal file for 6 months. A written warning will remain for 12 months. A final written warning will remain for 18 months. Every employee has the right of appeal against disciplinary action. Information giving is regularly needed so employees know what the rules are. In general, it is essential that rules are applied in a fair and consistent manner across all employee groups. If the employee arrives at the meeting without representation, you must firstly confirm that he/she has been offered the right to be accompanied. If not and the employee wants representation, the meeting must be adjourned. The employee must be informed in writing about a disciplinary hearing, the nature of the allegations, the potential outcomes, the composition of the hearing panel. The employee and representative and the presenting (investigating) officer should be invited into the room at the same time. The case is presented and the employee responds. Questions are asked. Presenting officer, employee and representative leave. Chairperson and advisers consider decision”.16
Victim Support Scotland suggests the value of appropriate action.
“Victim Support Scotland encourages all parties to use the kind of dispute resolution they see fit their needs, but not all disputes require litigation to be resolved justly. The court experience can be very traumatic and stressful for all parties involved, and an early resolution of any dispute would enable the parties to continue with their lives as soon as possible. We therefore agree that the civil justice system should be designed to encourage early resolution of disputes, preferably without resort to the courts. Key features in such a system would include a variety of dispute resolution options such as mediation facilities and as a last resort the civil court system. This follows the similar thinking of the summary justice reform aimed at fewer cases going to court needlessly. Alternative dispute resolutions, such as mediation, are furthermore cheaper than going through court”. 17
The main areas where secular processes are clearer and fairer than the operation of Act III 2001 are:
• adequate notice
• transparently equal application
• unbiased conduct of investigation and hearing
• fair and public hearing
• judicial independence
• appearance of propriety
• competence
• responsibility for confirmation of legal representation
• option of temporary disciplinary action
• authoritative mediation
Problems with and weaknesses in Act III and its modus operandi.
There is no preamble which identifies Act III as belonging to a Christian Church. Part 1 consists of legal definitions. Part 2 deals with investigatory proceedings.
Problems have arisen over the years. These are in relation to:
• unequal application
• disproportion
• familiarity
• lack of independent evaluation
• incompetence
• severity of disposition
• non-existent or unsuccessful mediation
These represent serious flaws in the way Act III is constituted and operated. The Legal Questions Committee has recognised some of this as a fact and in its Report to the 2011 General Assembly took a proposal (which was agreed) to change the investigating Committee of Presbytery as presently constituted.
“Consistency of practice has also become a matter of concern…It is clear that in terms of proceedings and of outcome there can be too much variation amongst Presbyteries. The Legal Questions Committee is therefore persuaded that the Church would be better served by a system of investigation and prosecution which is more transparent, more objective and more swiftly carried through… The Committee proposes the replacement of the “Committee of Presbytery” with a “Special Committee of Presbytery” appointed from a Judicial Proceedings Panel who would be nominated through the General Assembly nomination procedure”. 18
These reforms may help. However they represent only a further increase in the legalistic method and place ever more authority in the hands of a very few legalists. Act III requires extensive overhaul and revision. The Church of Scotland is in a different place compared to that described in Practice and Procedure in the Church of Scotland by James T Cox who wrote:
“Discipline in the Church of Scotland is of Scriptural authority. The ends contemplated by it are the glory of God, the purity of the Church, and the spiritual benefit of members. It is to be administered in faithfulness, meekness, love and tenderness. Discipline consists in the administration of appropriate censures of the Church to those whose conduct shall have given occasion for it…The censures of the Church are admonition, rebuke, suspension, deposition from office, and excommunication, and they are administered only on confession or proof of sin or of offence”. 19
There may be no personal contact whatsoever at the initiation of disciplinary process. Intimation may be by e-mail or letter only. The adoption of legalistic process prohibits normal Presbytery relationships and communication from continuing. The respondent is left isolated and alone. This state may continue for weeks and months. This is wholly unsatisfactory and inimical to any body claiming to be associated with Jesus Christ and the founding principles of the Christian Church. Act III Part 2 5. (2) indicates that pastoral provision is to be made at the initial stage of proceedings. This may not happen. In my case, intimation of proceedings were given on 23rd August 2009 but no personal or pastoral contact occurred until 24th November 2009. In a Church which however tenuously, claims to be part of the universal Church of Jesus Christ, this is unacceptable treatment.
The investigating committee is given from the outset a legally qualified assessor who may even be a QC. At what cost? Is this justifiable? Should Sunday offerings be used in this unaccountable way? No such provision is offered to the respondent. Thus the respondent is made to feel even more isolated and against overwhelming odds which cannot be overcome. Interestingly, Andrew Herron wrote, “The Presbytery may feel constrained to engage and even pay for someone to represent the accused”. 20 That does not happen. Andrew Herron’s humanity is missing today.
A crucial problem with the process is that the investigating committee sits without independent evaluation. It investigates, listens to testimony, makes judgement and prosecutes if it thinks necessary. It reports to Presbytery. Members of Presbytery do not hear the evidence for themselves. These roles function separately in the courts of the land. There are checks and balances.
Many church disputes are shaded in grey with faults and misunderstandings on both sides. There is a historic lamentable failure at resolving issues. Recently introduced mediation procedures are a step forward but they have still to be evaluated. A Place for Hope is just that.
Act III does not offer Biblical New Testament principles of purpose and operation. It is not pastoral. It does not state any clear commitment to equality of treatment at the outset. It offers no means of early reconciliation of parties. It cannot guarantee impartiality of hearing. It does not offer proportionality of process to alleged offence. It does not guarantee competence in hearing. There is no process of amelioration, of informality, of seeking reconciliation, of bringing parties together, of seeking to bring understanding, healing and peace. Act III has little to say about such obviously Christian practice.
These is no spiritual happiness in being under discipline. There may be feelings of unfairness and of injustice, of comparative victimisation and of disproportionate punishment by the process itself apart from any conclusions that may come. It is spiritually taxing and exhausting to be under discipline. The process is authoritarian and critical and is not reconciliatory or redemptive. The language, style and tone of Act III are inhibiting. All relevant issues are placed within an ecclesiastical-legalistic structure in which truth and reconciliation become less likely the further the process goes. This is the opposite purpose means and direction for a Christian Church.
Within the Church of Scotland there has been a greater increase in legalism in the last decade. The Legal Questions Committee has become more and more powerful and influential. However this simply perpetrates the problem in the Church of Scotland of distance from the core purpose of a Christian Church. The combination of an over-powerful central bureaucracy and a legalistic filter for all Church life emphasises the Sanhedrin-like nature of the Church of Scotland and also its secular legalistic nature in distinction from a Christian Church model. The Minister under discipline may feel obliged to re-think his or her vocation in legalistic terms. Thus some give up early in the process, so alien is this to their normal way of thinking, conducting their lives and treating others.
The disciplinary process for ministers requires to be made more humane, more consonant with Christian vocation and more New Testament based. It requires to have reconciliation and redemption as part of its core purpose from the outset. This change in thinking, attitude and process is only one indication of the need for the Church of Scotland to reform itself as a self-conscious part of the universal Church of Jesus Christ.
Act III Part 3 describes disciplinary proceedings in language taken from secular court procedures. It even suggests the possible use of a Sheriff Officer (10. (3). It is dense, complex, inhibiting and disproportionate.
14. (1) The rules of civil evidence in Scots law shall apply and the standard of proof shall be the balance of probabilities. Witnesses will be required by the Convener to take the oath or to affirm prior to giving evidence.
This language is similar to that of criminal proceedings in the courts of the land. When given the text of Act III to read one employment lawyer described it as ‘startling’. It requires to be moderated and reformed appropriate to Christian Church and Christian ministry. Yet at the same time the procedures fail to meet the standards of fairness in Scottish courts or in governmental agencies’ and local authorities’ disciplinary procedures for employees.
There was a case reported in the press concerning Glasgow Cathedral an excerpt from which is described in the following terms.
“Mr Wyllie’s agent, Ruth Innes, QC, argued the meaning of the emails had been “misapprehended”, that procedure had not been followed and urged the assembly to either throw out the presbytery’s finding or reduce the punishment to censure so he could keep his place on the Kirk Session. The assembly heard that the presbytery’s investigation committee heard evidence from Mr Whitley and Mr Wyllie separately and the elder was not told what was said at the meeting involving the minister. She said because there was no direct contact and the fact that the investigation committee only described the emails as “undermining” that it was not bullying. The findings of the investigation committee were also very brief and did not give details of what Mr Wyllie was guilty of, she added. She said: “These, I would suggest, are inadequate and insufficient to support the conclusion that the committee reached.” 21
Ruth Innes’ criticisms of the procedures of the Church require to be taken seriously because they highlight the difference between secular court expectation and procedure. They also suggest contradiction of natural justice and possibly of human rights. It can be argued that such cases should have been subject to a process of reconciliation rather than adversarial legalistic process.
Act III Part 4 deals with appeals to Judicial Commission which are limited in scope.
“19. (1) Appeals may be taken only on points of law or against severity of censure”.
This rule may be deeply frustrating for the respondent. The journey from Presbytery intervention, investigation, trial, appeal to judicial commission is tortuous and expensive and travels further and further from satisfactory resolution and even further from any possibility of reconciliation.
In the Church of Jesus Christ, everyone has a personal understanding and interpretation of faith and everyone has an opinion. Each person has a ‘faith position’ from which he or she interprets everything else. This is not acknowledged in the way the Church conducts its business. There are never any ‘declarations of interest’. There is an ‘establishment’ and a ‘non-establishment’ position. There are identifiable groupings such as ‘evangelical’ and ‘liberal’. There are ‘traditional’ and ‘revisionist’ descriptions of attitudes. Especially since 2004, ‘121 George Street’ has sometimes set itself against other parts of the ‘Church’, including at times, ‘the parish ministry’. Disciplinary process makes no mention of these. There are assumptions of objectivity. These should never have been and cannot any longer be taken for granted.
The Legal Questions Committee said in its report to the 2011 General Assembly,
“…While there is no evidence of miscarriage of justice” (Report 7:3 para 2)
This is arguable. There is evidence of unsatisfactory process and unsatisfactory conclusion in the way discipline is applied under various Acts.
For example, there was a case where a congregational member and a Minister had a row which began with investigation and led through Presbytery to Judicial Commission level at which point the respondent failed to appear. These proceedings were unsuitable for the case. They were disproportionate and no resolution was ever effected.
For further example, there was a case under Act I 1988 (Congregations in an Unsatisfactory State) which was concluded with the Minister feeling aggrieved at imbalance and unfairness and leaving active ministry on health grounds caused by the investigatory process itself. The Minister’s representing solicitor expressed the opinion that the process would not stand in the courts of the land. Apart from the rights and wrongs, the consequences were disproportionate. The Church of Scotland cannot and should not lose ministers in this way. Why has this happened? What does this say about the Church of Scotland?
There was a case concerning Rev Helen Percy publicised extensively in the press over a number of years. It became an issue of sex discrimination and of employment law. But the flaws in the Church’s process were highlighted. Lord Scott of Foscote’s judgement said
“If in their conduct of disciplinary proceedings the Church authorities have committed some form of unlawful discrimination, they cannot, in my opinion, rely on sec 3 of the Church of Scotland Act 1921 as immunising them from the jurisdiction of the civil courts and tribunals to deal with such matters or from the remedies that the civil law makes available to the victim”. 22
Harry Reid, the journalist and author, member and friend of the Church of Scotland has written scathingly about the years of legalistic battling that took place in this case.
“a protracted saga of institutional bullying, legalistic nastiness and bureaucratic obfuscation which was devoid of compassion and replete with puffed up pompous sanctimony….There is far too much forensic fiddling about, far too much narrow-minded control freakery and backroom bossiness, while the fires that destroy faith and charity burn ever stronger”. 23
Harry Reid published a perspective on the Church of Scotland called Outside Verdict. 24 He worked for some months at 121 George Street as editor of Life & Work. His judgement on the nature of the Church of Scotland’s disciplinary procedures cannot be dismissed as irrelevant or ill-informed.
There is the outstanding case concerning Rev Scott Rennie which was much publicised (a fama clamosa) and which was considered specifically at the 2009 General Assembly and further at the 2011 General Assembly. The main issue as far as Act III is concerned is that the requirements of its discipline have not been applied to Rev Scott Rennie. This exception to disciplinary proceedings is so obvious that it brings the Church of Scotland’s disciplinary proceedings into disrepute. It can be argued that no other ministers can or should be placed under discipline until this particular case is resolved. That an exception has been made to Act III for Rev Scott Rennie is incontestable and issues of fairness and of partiality, of equality and of selectivity in application undermine the Church of Scotland’s discipline of its ministers. Thus the main provisions of natural justice in respect of equality of treatment for all ministers is not being applied in the Church of Scotland.
Furthermore, the Human Rights Act Chapter 6 on Privacy is being applied by the Presbytery of Aberdeen 25 in such a way that may contradict the nature of the public vows of a minister of the Church of Scotland to live a ‘Godly and circumspect life’. It might follow if this is indeed the possibility that homosexual ministers could be protected from disciplinary hearings for any issue of personal life or personal conduct.
There was a case concerning Rev Michael Erskine which was also reported in the press in the following terms.
The Rev Michael Erskine (54), the minister of Crail and Kingsbarns, was suspended by the Church of Scotland for two years last August after he had an affair with a parishioner. An appeal against the suspension was upheld two months later after the married man apologised and admitted failing to be Christ-like. His suspension was halved but it will be August next year before he is allowed to lead services again. However, the Rev Dr John Cameron of St Andrews presented a case at the St Andrews Presbytery meeting in Cupar on Wednesday which he hoped would have seen Mr Erskine's suspension reduced again to "time served." But, Dr Cameron said that a last-minute codicil had come before the presbytery from the church "which effectively said they wanted him fired." "They put pressure on presbytery to fire him and presbytery did not stand up to that - they caved in and agreed," said Dr Cameron. 26
The Church condemned Michael Erskine’s personal lifestyle. Act III’s rules on ministerial discipline were fully applied. The Legal Questions Committee has not addressed the one particular and outstanding issue of inequality of application of ministry discipline in the Church of Scotland at the present time, that of Rev Scott Rennie. Thus the simple basic foundations of equality of treatment and of application of justice do not apply. Natural justice does not apply. Positive discrimination on behalf of people like Scott Rennie and negative discrimination against the likes of Helen Percy and Michael Erskine bring the Church of Scotland and the name of Jesus Christ into disrepute.
Act IV 2007 Section 2 anent Bullying
There is a growing use of Act IV on ‘bullying’ in the Church and of the heavy handed and disproportionate legalistic procedure which ensues. The threshold for ‘bullying’ in the Church of Scotland falls far below that in employment law of the land.
“‘bullying’ shall mean any behaviour (including speech, writing or action, or any combination of them) which in the opinion of the Presbytery would alarm or distress a reasonable person or compel his or her actions or decisions unfairly”.
This legislation was made at 121 George Street for people at 121 George Street. Its relevance and appropriateness for the actual Church of Scotland, for ministry and congregational life, was not thought through. The exponential increase in secular legalism in the Church of Scotland in recent years has resulted in unnecessary, disproportionate, expensive, time consuming and even farcical cases being pursued.
For example, there was a recent case where a Minister made a series of complaints against members of his Church under bullying legislation, all of which but one were rejected at Presbytery level. The one that was upheld appealed and more than sixty members of a Judicial Commissioned were called to Edinburgh and sat in judgement which found in his favour and against the Presbytery. Members of the Commission remarked that the whole exercise was a waste of time and money.
It can also mean that any personal disagreement or principled argument within the Church if taken subjectively can be interpreted as ‘bullying’. It can mean that bullying legislation can be used for ecclesiastical political purposes, for increasing authority, for establishment of privilege and for petty revenge. It is a symptom of personal, pastoral and congregational relationship failure. This is no way for a Church to behave which is - however tenuously - identified with Jesus Christ and is a far cry from the principles of the New Testament.
The Church of Scotland definition of bullying contrasts unfavourably with definitions of ‘bullying’ outside the Church of Scotland, which include:
• intention
• repetition
• coercion
• superior employment status.
For example:
Norwegian researcher Dan Olweus defines bullying as when a person is "exposed, repeatedly and over time, to negative actions on the part of one or more other persons." He defines negative action as "when a person intentionally inflicts injury or discomfort upon another person, through physical contact, through words or in other ways”. 27
United Kingdom Civil Service definition - Bullying can…be carried out by a manager to an employee, by colleagues to peers or by one group to another individual member. It will often develop gradually, and undermine the ability and confidence of the person on the receiving end. 28
Oxford Dictionary definition - use of strength or influence to harm or intimidate those who are weaker. 29
Cambridge Dictionary definition - to hurt or frighten someone who is smaller or less powerful 30
Dictionary definition - Bullying is the act of intentionally causing harm to others, through verbal harassment, physical assault, or other more subtle methods of coercion such as manipulation. Bullying is usually done to coerce others by fear or threat. In colloquial speech, bullying often describes a form of harassment perpetrated by an abuser who possesses more physical and/or social power and dominance than the victim. The victim of bullying is sometimes referred to as a target. The harassment can be verbal, physical and/or emotional. 31
How much of the Bible would fall foul of Church of Scotland ‘bullying’ legislation? Old Testament prophets, John the Baptist, Jesus’ prophetic critique, Paul’s ‘painful’ letters, Revelation 1 - 3? St Paul writes in Galatians 2:1f;
“When Peter came to Antioch, I opposed him to his face, because he was clearly in the wrong…The other Jews joined him in his hypocrisy…I said to Peter in front of them all, “You are a Jew, yet you live like a Gentile and not like a Jew. How is it, then, that you force Gentiles to follow Jewish customs?”
Peter did not report Paul for bullying him. It is doubtful that an employment tribunal today would support such a complaint. Peter was in the position of greater authority. There were disagreements of clear principle. But would Paul’s behaviour fall foul of the Church of Scotland’s policy on bullying? It probably could. If Peter was upset by Paul’s criticism, he could complain under bullying legislation. For Paul, large issues were at stake concerning the nature and future of the Christian Church. Paul was right and what we now know as Christianity prospered.
Further Issues
In 2009 I was placed under the terms of Act III 2001 as required by the terms of Act IV 2007 Section 2 on ‘bullying’ for a letter I had written to one person at 121 George Street. The letter of complaint of 13 August 2009 was written by others on behalf of the offended person and began:
“We write…as Conveners of the Central Services Committee, which is the employing agency for staff in the Church offices, and of the Assembly Arrangements and Legal Questions Committees..
A parish minister as the holder of an office in the Church has no-one in a similar capacity to represent him or her. Thus inequality was present at the outset of disciplinary proceedings. Employment law over-rode the position of parish minister even though the two central players were ministers. One had the advocacy of employment law, the other had not. The Legal Questions Committee recognised part of this problem in its report to the 2011 General Assembly in connection with Presbytery and Parish Staff (Section 7.4) and received agreement to form a Judicial Proceedings Panel which would investigate “both staff grievances and associated disciplinary cases”. However, it remains to be seen whether the JPP would also investigate all Church of Scotland staff and ministry disciplinary issues which may arise.
The Ministries Council has no equivalent role on behalf of parish ministers. Nor has Presbytery. Church of Scotland Ministers do not have the protection and help of a professional body. The application of law predominated and led in the wrong direction from the outset. This reflected inequality of status and inequality of process.
Further imbalance at the start of the process lay in the fact that the person to whom I had written the offending letter and the complainers worked together in committees at 121 George Street and knew each other. I knew none of them personally. Key requirements of natural justice, independence and objectivity, were compromised.
Is the Legal Questions Committee not also an interested party with a role in the management and outcome of any proceedings under Act III? One of the complainers was part of the authority charged with oversight of Act III and the appointment of legal counsel to the investigating and prosecuting Committee of Presbytery. I was thus given a sense of overwhelming imbalance in the way the complaint was initiated.
The letter of complaint to me also said:
“Indeed, had some of your remarks been made in a public forum they would clearly be defamatory”.
This language was intimidating and represented an implied threat of secular court action as a part of a primary response. It escalated the issue into something that had not occurred and proceeded to make judgement on it. Within the Church of Jesus Christ, in the light of the New Testament and in terms of natural justice this should not have happened. A new understanding is required. The legalistic primary response must be replaced with something more reflective of Christianity.
Critically, the letter of 13 August 2009 contained no notice or warning about possible action to be taken against me under Act III 2001 and Act IV 2007. This was punitive. It was a clear breach of Christian principle and of secular legal process. Disputes are often reported in the media between people one of whom seeks resolution or advises (sometimes threatens) that legal process will result. That alternative was not offered. Although I replied courteously, the next I heard was when I received a letter of 23rd August from the Clerk of the Presbytery of West Lothian informing me that
“…a formal complaint against you has been lodged with the Presbytery by the central Services Committee…it seems likely, therefore, that Presbytery will require to invoke the procedures of Act III 2001 as required by Sect 2 of Act IV, 2007”.
Natural justice demands that a person should be given adequate notice about the possibility of proceedings which may lie ahead. The proceedings at their outset also failed the requirements of the New Testament teaching on seeking simple fairness and reconciliation. They compare unfavourably with those of other churches and with secular practice. The legalistic disciplinary proceedings were invoked in such a way that authoritarianism and retribution could be implied to be present. There were no formal means for reconciliation in place. No arrangement for any meeting of the two central parties was made and none occurred. Act III does not specify any such requirement.
The Committee of Presbytery’s investigation under Act III took place on 13th October 2009 in the Kirk of Calder Church Hall, all of seven weeks after the initial notice of complaint. This was the Church of a member of the Committee. He is a neighbouring minister with whom I had been in theological disagreement throughout my eleven year membership of the Presbytery of West Lothian. There had been no provision to object to this person’s membership of the Committee of Presbytery. Thus one of the key conditions of natural justice - impartiality - was not fulfilled. The complainers did not appear. I was told that the Committee of Presbytery would visit 121 George Street rather than call them to Kirk of Calder. There was inequality in the geographical arrangements and these were important for me in suggesting tone and bias.
My explanation for and defence of my letter was not accepted by the Committee of Presbytery. The case was resolved by my agreeing to the terms of a letter of apology written for me by the Convener of the Committee of Presbytery. I did so principally because the purpose of my of my letter had not been accepted by the recipient. I had requested a considered reply.
I also did this under duress because disciplinary and bullying legislation had been initiated and because from the outset the proceedings weighed against me. I thought of the words of Jesus recorded in the New Testament who said,
“Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. I tell you the truth, you will not get out until you have paid the last penny” Matthew 5: 25-26). Jesus could have been talking about Act III.
Recommendations
1) The Church of Scotland should clarify that it lives in the era of Gospel not Law.
2) Act III should be simplified and modernised having regard to the New Testament, to the practices of other churches and to the principles of natural justice. A preamble should set out the relevant New Testament principles as the basis and theology of the discipline of ministers. This preamble should state clearly the relationship of procedures for ministry discipline to natural justice. This preamble should also form and state an understanding of the relationship between ministry discipline and human rights within the Church of Scotland in respect of boundaries ecclesiastical and civil.
2) Technical aspects of proceedings should be reformed to bring them into line with New Testament example and with natural justice. These for example include unequal application of discipline, disproportion of proceedings to alleged offence, familiarity of persons involved, lack of independent evaluation at the investigation stage and incompetence in investigation.
3) A Pastoral and Spiritual Questions Committee should be set up as a final ‘clearing house’ and ‘filter’ for any disciplinary procedures. The Legal Questions Committee should have an advisory status for this Pastoral and Spiritual Questions Committee.
4) All complaints should be referred immediately to the Pastoral and Spiritual Questions Committee who will categorise the complaint in terms of seriousness. Categories such as i) suitable for immediate resolution and reconciliation at local and Presbytery level ii) requiring skilled medium-term mediation and at local and Presbytery level iii) involving doctrinal or conduct issues requiring further assessment. Where relevant the Pastoral and Spiritual Questions Committee should arrange for immediate mediation and for a programme and timetable for resolution and reconciliation to be put in place.
5) The Christian necessity to resolve matters should be communicated to all parties.
6) A process similar to judicial mediation in employment tribunals might be set up. “..the judicial mediator will assist parties who wish to find a way of resolving their dispute which is mutually acceptable”. 32
7) Where an investigating Committee is employed, its conduct should be subject to independent means of evaluation from the outset.
8) If the investigating Committee of Presbytery is given a Q.C., similar legal provision should be offered to / provided for the respondent.
9) Some parallel to ‘Lay Assistance’ in the courts should be mandatory in the Church to provide moral support, give help to manage documents and other papers, take notes of the proceedings, quietly advise where necessary and helpful. 33
10) The process of Presbytery and Judicial Commission hearings should be simplified and made less formal and less legalistic. There should not be any necessity for the employment of lawyers and Q.C.’s until the latest stages of any process involving, for example, loss of ministerial status.
11) Judgements should be open to review after a period of one year to take account of further evidence and changed circumstances.
Notes
1. Andrew Herron, The Law and Practice of the Kirk, Bell and Bevin, Glasgow 1995 p. 237.
2. James L Weatherhead (Ed), The Constitution and Laws of the Church of Scotland, The Board of Practice and Procedure, Edinburgh, 1997 , p. 65.
3. Ibid., p 74.
4. Ibid., p 62
5. http://www.churchofengland.org/about-us/structure/churchlawlegis/clergydiscipline/cdc.aspx
6. http://www.methodist.org.uk/index.cfm?fuseaction=churchlife.content&cmid=2509
7. Free Church Practice, Chapter 5, Discipline, Part I, The Nature Purpose and Scope of Discipline, p.1.
8. The Baptist Union of Scotland, Ministerial recognition Rules, Appendix 3, Disciplinary Procedures for Accredited Ministers.
9. Memorandum from Norman Doe, Mark Hill, Frank Cranmer, Javier Oliva and Christiana Cianitto of The Centre for Law and Religion, Cardiff Law School, 1984.
10. Robert Alexander Anderson, Who Cares Wins, Leaping Salmon Trust, Blackburn, 2000, Chapter Two, The Spiritual Character of the Church of Scotland, God-centred Christianity p.19.
11. Holy Bible, New International Version, Ó International Bible Society 1973, 1978. 1984, Hodder & Stoughton, London.
12. www.cricketeurope2.net/docs/ECC/TSOP2010/ANNEXURES/C110.pdf
13. www.un.org/en/documents/udhr/
14. www.hri.org/docs/ECHR50.html
15. www.unodc.org/pdf/crime/corruption/judicial.../Bangalore_principles.pdf
16. Falkirk Council, Corporate & Commercial Services, Disciplinary Policy and Code of Practice, Human Resources, 2004, 2.0 Managing Employee Conduct, 2.2, Essential Principles of the procedure, p.7.
17. Victim Support National Office, SCC/FP 5-2008, Scottish Civil Court review, p.1.
18. The Church of Scotland General Assembly 2011, Edinburgh, 7.4, Report of the Legal Questions Committee, 7.3.
19. James T Cox, Practice and Procedure in The Church of Scotland, Chapter XV, p. 314.
20. Andrew Herron, Op. Cit., p 244
21. Brian Donnelly, www.heraldscotland.com/.../kirk-elder-dismissed-for-bullying-cathedral
22. Percy v Board of National Mission of the Church of Scotland, No 1, 2005, UKHL 73, p. 35.
23. Harry Reid, Guilty Until Proven Innocent, Scottish Review of Books Ltd, Vol 7, Number 3, xxx, August 2011, p 7.
24. Harry Reid, Outside Verdict, Saint Andrew Press, Edinburgh, 2002.
25. Letter from Presbytery of Aberdeen Clerks, 3rd February 2011.
26. George Mair, thescotsman.scotsman.com/.../Sacked-Kirk-minister-who-had.66560.
27. Dan Olweus, www.clemson.edu/olweus/history.htm
28. www.civilservice.gov.uk/about/resources/.../bullying/index.aspx
29. oxforddictionaries.com
30. dictionary.cambridge.org/dictionary/british/bully
31. www.psychologicalharassment.com/bullying_wiki.htm
32. Employment Tribunals (Scotland), Judical Mediation, p.1., http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/employment/index.htm
33. Raising and Defending ordinary Action in the Court of Session, A Guide for Party Litigants, Chapter 4, p.19.
