Not just the importance of being quorate…

At the end of the nineteenth century a complex series of negotiations took place between the Free Church of Scotland and the United Presbyterian Church which led to their union as the United Free Church. However, a minority of the Free Church opposed the union on the grounds that their own Church and the United Presbyterians differed fundamentally on various doctrinal matters – and that the Basis of Union had therefore been a fudge. If you’d like to read the history, the best recent account is by the late, great Alan Rodger in The Courts, The Church and the Constitution: Aspects of the Disruption of 1843 (Jean Clark Memorial Lectures: Edinburgh University Press 2008).

The dissident minority took their case all the way to the House of Lords and won – see General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515 – with the result that they found themselves in possession of all the Church’s property. So a Parliamentary commission was appointed which recommended that Parliament should set up a further, executive, commission to make an equitable division of the property of the Free Church: hence the Churches (Scotland) Act 1905, which gave effect to those recommendations.

That’s almost enough Scots church history (Ed.) – except for one point.

In his judgment, the Lord Chancellor, Lord Halsbury, said this: “… in the controversy which has arisen, it is to be remembered that a court of law has nothing to do with the soundness or unsoundness of a particular doctrine.  Assuming there is nothing unlawful in the views held… a Court has simply to determine what the original purpose of the trust was” (at 613). Moreover, “… there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another.  Any other view, it appears to me, would be fatal to the existence of every Nonconformist body throughout the country” (at 627: emphasis added).

That appears to be an accurate statement of the general duties on trustees – both in Scots and in English law – to use the assets of the trust for the purposes intended by the settlors/trusters and not otherwise. When the trustees of the Confraternity of the Blessed Sacrament made the £1m grant to the Personal Ordinariate of Our Lady of Walsingham “to provide for theological teaching, learning and development and for the support of priests in the Ordinariate”, it would appear that they were doing precisely what Lord Halsbury had said trustees should not do: giving money for a purpose which did not appear to have been intended by the settlors.

Or have I missed something?

Leave a Reply

Your email address will not be published.