WRONGFUL EXPULSION
FROM THE EXCLUSIVE BRETHREN

I am working on a substantial essay on this subject (including extracts from and analysis of the relevant case law) but it is already running at 4.5 K words, although far from finished. Therefore, the following is a summary of my thinking so far.

My aim is to show that a Member of the Exclusive Brethren, who has been shut-up or withdrawn-from, can bring an action, in the Civil Courts, for wrongful expulsion.

Such action, which would be brought against the other Members or the Trustees and other Members, would be for a Declaration that the expulsion was void and that the Plaintiff was still a Member of the Exclusive Brethren; and for an Injunction to restrain the other Members from excluding him from the meeting rooms; or preventing him from exercising the rights and privileges of membership including, in particular, the attendance of meetings and the celebration of the Eucharist.

The rationale is that the Exclusive Brethren are an Unincorporated Association or Members’ Club. In English Law, a Club is a society of persons associated together for some lawful purpose other than trade. An Unincorporated Members’ Club is not recognised, by English Law, as having any legal existence apart from the Members of which it is composed. There is a Contract, between each Member and every other Member, under which they mutually agree to be so associated. Every Club is governed by Rules and these form part of this Contract.

There is no inherent power to expel a Club Member but a Member may be expelled if the Rules so provide. The remedy of a Member, irregularly or improperly expelled from a Members’ Club, is by action, which may be brought against the committee or the Trustees and Committee, for a Declaration that the expulsion is void and that the Plaintiff is still a Member of the Club, and for an Injunction to restrain the Committee and their servants, and the servants of the Club, from excluding him from the Club premises, or preventing him from exercising the rights and privileges of membership. The foundation, of the jurisdiction of the Court to interfere at the instance of a Member improperly expelled in order to reinstate him, is the right of property (which need not be a beneficial right in land or chattels and may be a right in Contract) vested in the Member of which he is unjustly deprived by the unlawful expulsion.

A power of expulsion must be exercised in strict conformity with the Rules by which it is given; otherwise the purported expulsion will be inoperative. The true construction of the Rules is to be decided by the Court and by nobody else.

It is necessary that a power of expulsion should be exercised in good faith for the benefit of the Club, and not from any indirect or improper motive. The principles of Natural Justice must also be observed in exercising a power of expulsion, unless it plainly appears, on the true construction of the Rules, that the power was intended to be absolute. The principles of Natural Justice are:-

Audi alteram partem

No man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard.

Nemo judex in causa sua

No man shall be a judge in his own cause.

The Exclusive Brethren have no written Rules or constitution. In Re Thackrah (1939), the absence of Rules, or some constitution, was held to be fatal to the existence of any identifiable association or society of individuals banded together under the name of the Oxford Group. In their absence, there was nothing "by which those who are supposed to be Members are tied together". However, in Commissioner of Land Tax (New South Wales) v. Joyce (1974) their absence was not found to be fatal to the existence of a "Religious Society". It was found that each congregation, of the Exclusive Brethren, is a close-knit and intimate group, the Members of which not only know one another well but feel themselves to be linked together by close bonds of common faith. "It is a very intense organization" in which "everyone feels responsible for the whole company to be kept right" and the conduct of each Member is apparently open to the scrutiny of all.

Therefore, the Exclusive Brethren are an Unincorporated Association or Members’ Club. They may have no written Rules or constitution but an unwritten set of Rules or constitution may be deduced. There being no inherent power to expel a Member, it is far from certain that the Court would construe these unwritten Rules to provide that a Member may be expelled. It may be that a power of expulsion can be deduced from custom and usage. However, an extraordinary characteristic, of the Exclusive Brethren today, is that it is almost unheard of for Members to "join", thereby accepting the unwritten Rules and constitution; they are almost invariably born into the Association. The bond, between Members, is formed in early infancy when there can be no comprehension of powers of expulsion. These cannot be imposed later on.

Even if a power of expulsion were found, such a provision could never operate. There is no "Committee" and decisions are made by unanimous resolution of a meeting of Members, which means that no Member present votes against. The principles of Natural Justice must apply to such decisions. Therefore, the "accused" must be given the opportunity to attend and, until expelled, has a vote. As he will always vote against his own expulsion, unanimity is impossible.

This looks promising but, unfortunately, there is a cloud on the horizon. Religious orders and communities are usually Unincorporated Associations and, unless property held by them is impressed with Charitable Trusts, it is subject to the law relating to Unincorporated Associations. If property held by them (and an action, for wrongful expulsion, is founded in the right of property) is impressed with Charitable Trusts, then an individual Member cannot sue under that trust. The beneficiaries, under a Charitable Trust, are members of the public (or a section of the public) and not Members of an association.

The general principle, that Unincorporated Associations supported by their Members to provide benefits for themselves are not charitable, does not apply with full force to associations for religious purposes. A purely contemplative or secluded order or community is not charitable, there being no element of benefit to the public from their activity of which the Court will take cognisance.

Since separation from the public is a central tenet of the Exclusive Brethren, it might be thought that they should be put in the same category as a contemplative or secluded order or community. However, in Holmes v. the Attorney General (1981), it was held that the Exclusive Brethren did provide an element of public benefit. Members of the public were allowed into their meetings (other than the celebration of the Eucharist and business meetings) and there were public attempts to proselytize by conducting campaigns in the streets. That these things are a sham was not raised. In a future case, the decision could be distinguished on its facts. Furthermore, it was held that the two branches of discipline ("shutting-up" and "withdrawal") were not contrary to public policy. No evidence to the contrary was adduced. Given evidence of the undoubted abuse of the principles of Natural Justice, this decision could be distinguished on its facts.

The trusts, declared by Exclusive Brethren meeting room trust deeds, purport to be charitable. It does not follow that they are charitable and, if there is no element of public benefit, they are not.

Even if property, held by the Exclusive Brethren, was, nevertheless, found to be impressed with Charitable Trusts, there is authority (Leahy v. Attorney General of New South Wales (1959) as interpreted in Neville Estates v. Madden (1961)) for the proposition that charitable and private trusts can co-exist in the same property. Under this, individual Members would, as between themselves, have all the property rights of an Unincorporated Association and a Member could bring an action for wrongful expulsion. However, as between the Members collectively and the public, the property, of the Exclusive Brethren, would be held on Charitable Trust.

If I am correct in the foregoing, then a Member of the Exclusive Brethren, who has been shut-up or withdrawn-from, can bring an action, in the Civil Courts, for wrongful expulsion. The consequences would be far reaching. Present Members could ignore the Rules without fear of discipline; expelled Members could come back.

I would welcome as much critical comment as possible on the foregoing. I can then finalize the full-blown essay, which, I would suggest, could include a draft "Bill of Rights" for present and expelled Members of the Exclusive Brethren.

© Richard Green MM

Received 23 May 2000

What is the point? It seems that you are mixing secular clubs with a so called God's assembly. I say so called because of the departure the Taylor/Hales have taken from the truth of scripture. The Lord's words are clear that if one smite us on one cheek we are to turn the other and if one take away your coat, let him have your cloak also.These and other words of the Lord are principals for Christians to live by in peace. One who is expelled from that system (Taylor/Hales cult) should thank God for the delivery.

--withheld

Received 24 May 2000

Re: Received 23 May 2000, Signed --withheld

You are right, up to a point, but this cult holds its members to ransom by denying them the chance to know the TRUTH. If it is illegal for them to bar me from their assembly, I will challenge their legal right through the courts, as I am doing. All I want, is access to my friends, to tell them "THE TRUTH".

I welcome your comunication, my E-mail address is jrwallis@hotmail.com

--John R WALLIS

Received 24 May 2000

It is doubtful if this could be made to stick. The brethren cult is not democratic, and furthermore they are quite explicit in their opposition to the very idea of democracy. So nobody ever votes on decisions anyway.

Can they be forced by courts to accept democracy? If not, the argument won't be sustainable. But maybe it would give them a bit of a stir anyway.

--withheld

Received 24 May 2000

I understand the frustration totally. The grounds on which different ones have been withdrawn from do not make any sense to anyone.

The point is though why challenge being expelled? I am very glad that I am free of the whole set up. They would never have you back anyway. The second point is that we can lead a horse to the water, but we can't make it drink. Whatever the decision, they just would not co-operate in some way. Even if one had the freedom to speak with an old friend, if they were of the opinion that the peebs were right, they would totally ignore one anyway!

Is it good to prolong the pain of departure from old friends in such a way. I would say that we need to challenge the peebs on matters that will rattle them, not on issues which they would never really practically work.

--James Devenish

Posted 24 May 2000

Iit's nice to be free of the brethren. In fact, it's a lot more than nice. On the other hand, there are a lot of people who have given significant wealth to the brethren and then been put out. A lawsuit for wrongful expulsion may be an avenue to recovering some of those 'gifts'.

--Dick Wyman`

Received 25 May 2000

Understand your point Dick. On the issue of the peebs keeeping hold of money, 'given' to them, I do agree they should be held accountable.

I heard some years ago about a guy who was out of the peebs and eventually decided he wanted back in. He contacted the peebs, who visited him over a period of months. They told him to make a fresh will, leaving his wealth to the peebs. He did so and they still kept him out. He died, outside, and they kept his money! Immoral? Corrupt?

I feel it would be a good exercise to look for a reason to challenge them, in an area that would cause them concern and provide a tangible result, for the bringer of such a case. I guess that trying to insist that we have the right to talk with people who do not want to talk to us, seems a little futile.

--James Devenish

Received 25 May 2000

I am a practicing lawyer in British Columbia, Canada. I left the EB in Vancouver, B.C. in 1988 at age 18. While I do not have enough time to consider all the points raised by Mr. Green, the EB in British Columbia violate the principles of natural justice by denying the right of members who are facing discipline a fair and open hearing accompanied by legal counsel of the the disciplined person's choice. I have little doubt that a court in my jurisdiction would set aside any decison reached in the absence of the person who is withdrawn from.

As to the ramifications of that, I cannot render an opinion. I should note that each case must be considered on its own facts and that the above statement cannot be considered to be a legal opinion which can be relied on. It is important to consult a lawyer for specific legal advice.

--Stephen D. Ballard, B.A., L.L.B., Barrister & Solicitor in and for the Province of British Columbia, Canada

Received 25 May 2000

I really don't think this is going to be practical unless you can enforce democracy on the peeb system. The peebs are not even ashamed of not being democratic, they glory in it! They still think that every country should have a King!

I'm all in favour of stirring them up if possible, but you would need something that has more of a chance of success.

--Anonymous

Received 29 May 2000

: No one in their right mind would regret having been expelled by a kangaroo court alias PBs however many of us former members resent the way in which they acquired wealth by such means as disinheriting those who had left. I should love to know where my family's money went to!

--Tim Southwood

Received 30 May 2000

"The Exclusive Brethren is a Christian sect in which everyone lives in a perpetual state of fear" The Sunday Telegraph - 1986

What would it mean if their discipline, "withdrawal" and "shutting-up", could be overturned in the Civil Courts? It would not mean the abolition of the Exclusives Brethren but it could lead to the abolition of fear. Members are bound to observe the rules, on pain of withdrawal or shutting-up. If that threat were removed, the rules would lose their force. Things now done underground by some - visiting pubs, speedway, cinemas, having a television, fraternizing with non-members or even ex-members - could be done with impunity. The Exclusives Brethren would tend to become an ever more democratic and liberal organisation. In time, reforming factions might emerge and take control.

Of course, the best thing is to leave and make a success of it. Many leave and fail - some spending a lifetime trying to return. It is very, very hard to leave. Barring an Aberdeen-type schism, the numbers leaving are always going to be insignificant, compared to the excess of birth rate over death rate. The Exclusive Brethren will go on.

Members are being deprived of several of the most basic human rights and, because these include the right to freedom of thought, they may not even know it. The only way to change this is by reform. Reform comes through democracy and democracy comes through the Rule of Law.

--Richard Green

Received 4 June 2000

A couple of points come to mind, one being that as Christians were are specifically directed not to pursue our matters in the courts in matters that involve believers, and secondly, tramatic as the expulsion is, one remembers Joseph's words to his brothers ''you meant it for evil, but God has turned it to good'' All I can say is that although the path has been dificult in trying to understand how any real believer can stay with the group, which operates outside of the Biblical mandate and clearly violates christian principles, the results have been worth it all in being able to raise our families according to scripture and without the fear of man.

--pmclarke

Posted 5 June 2000

A quick review of my bio of John Hales shows he has been willing to use the courts whenever it suits his purposes. My friends in the legal profession say that the brethren employ some of the most expensive legal talent available. My personal feeling is that a great deal of money is involved here. John Hales has accumulated great wealth and a significant number of properties. His followers are virtual serfs while he and his coterie are modern day nobles, dukes and princes. They will not meekly let democracy arise.

--Dick Wyman

Received 5 June 2000

It is even more liberating when one turned ones back on them. I withdrew from this cult before they had a chance to "shut me up" or even "withdraw" from me. The fact that they subsequently did "shut me up" and then "withdrew" from me was just the cult going through their established proceedures.

When I remind relatives that I in fact withdrew from them and the whole cult - it takes the wind out of their sails! Try this - it beats discussing whether someone was ill treated or not. Everyone who escapes this cult should be truely happy and pat themselves on the back - no matter how the end game was achived.

--Anonymous

Received 30 June 2000

Re: June 5 2000 comment

I also left the EB very suddenly, before giving them the chance to 'withdraw' from me. I was 'shut up' and then withdrawn from 2 years later. I was informed by letter of the fact as I refused to see the priests.

You could say that I have not suffered as much as those who have been w/f.

--H

Received 31 July 2000

In America, the First Amendment to the Constitution specifically inhibits state interference with the "free exercise of religion" and I doubt very much whether any attempt to call peeb excommunication a "wrongful expulsion' could possibly get off the ground.

I predict that American courts would simply refuse to hear the case.

As for monies given to the Brethren, the donor should look on that as water under the bridge -and an expensive lesson - unless the donation was accompanied by a very strictly drawn-up document naming trustees and the purpose of the conveyance. Notarization, witnesses, the whole thing, like a California "Durable Power of Attorney" used by people in anticipation of death.

In a case which offers some analogy, an atheist, James Hervey Johnson, died leaving about 20 million dollars with his holographic (handwritten) will saying only that it was for the promotion of science as against religion - a ridiculously vague statement of intent. The result was that the will was challenged by the repulsive greedy atheist Madalyn O'Hair who wanted to snatch the money. She failed. Most of the money eventually went to lawyers. Let potential supporters of the Brethren take heed.

Received 19 August 2000

If the Brethren indeed repudiate democracy they are quite correct. Democracy was invented by Cleisthenes in Athens about 500 BCE while Christianity is much older and is MONARCHICAL in its tradtions and textual foundations.

In the American fundamentalist world such as the creationists of Southern California they insist - quite correctly - that they seek not a democracy but a KINGDOM. Jerry Falwell's so-called "university" is named "Regent" to imply that a REGENT is a royally-recognized personage who holds authority in the monarch's name pending an absent monarch's return to assume his throne. That is what they think is their mission.

--Francis Mortyn

Received 2 September 2000

I was thrown out of the EB's when I confessed to having a gay relationship. I actually confessed and said I was sorry.

The EB's still withdrew from me, took my job off me, threw me out of my home. Even after I'd move into my own home, bought with a brethren loan, they tried to get me out of it.

Even JHS said my locality had been wrong to withdraw from me.

We are now 20 years on, and still no apologies from the EB's

I still have nightmares over the night I was excommunicated.

--Blue.

Received 14 September 2000

I am rather puzzled by the assertion that Christianity is older than 500 BCE. Surely BCE is Before Christian Era?

--Atticus

Received 18 September 2000

We ex-Jehovah's Witnesses have been trying to take legal action for years and sadly it always gets tossed out because religous organizations like any other are able to make their own rules and act accordingly.

--Jan Groenveld

Received 23 September 2000

I understand that there was a case in North America, within the past two decades that a couiple who were expelled from a fellowship (may not have been brethren) living in an mimoral relationship (living as man & wife without being married) This is forbidden by the Holy Bible regarded as infallible by all evengelical churches. The court ruled against the church and I understand that there was an appeal but I never heard the outcome. Could someone shed any light?

I am from the Open Brethren tradition and there is no way that we could ever be consided a "Cult" We believe that the Bible provides us with the only constitution we need, but recent developments in the UK in relation to Child Protection legislation has meant that we have been advised to draw up written policies. The impending legislation in relation to so called "Human Rights" will also mean that policies will have to be clearly drafted.

--Raymond Armstrong

Received 14 October 2000

No doubt the jims will seek exemption from the human rights bill. It doesnt fit in with their way.

--sol

Received 25 October 2000

Dear Richard

I was wrongly withdrawn from on September 19, 1977. It was a devastating experience sitting in my own living room when the two local so called priests said "I withdraw from you, of course there will be an assembly meeting and you cal come and fight your own case." I went to the so called assembly meeting and the same two kids let me have both barrels in the ministry meeting preceeding the assembly meeting and then were the only speakers in the assembly meeting. All the other brethren, about 150, were too scared to speak. I pleaded for mercy, but when I realized none was offered I got up and left. Sadly I let three children 18, 16, and 14 leave home that night. Mercifully my beloved wife did not let two younger ones 10 an 6 leave. they are two fine young men now. By Friday night of that week I praised the Lord for His deliverance and knew I would not want to get back to a gathering of so called Christians where there is no forgiveness. My deliverance was purely the gracious hand of the Lord reaching forth from above as stated in Psalm 18:16 and drawing me out of many waters.

There are many unfair trials recorded in the Holy Scriptures; the most significance being the trial of our Lord and Savior Jesus Christ before Pontius Pilate, he finding no fault whatever and delivering Jesus up to be crucified. Praise God for that wondrous moment in the center of eternity past and future! Your and my soul salvation rests upon what took place there on Golgatha's hill where Jesus, lifted up to die was drawing all peoples to Himself, John 12:32.

The experience is traumatic, but when gone through with Jesus and the restablishment of a wonderful link with Him was worth every moment of trauma and exercise. Even the 23 years waiting to speak with four precious children and now 27 + granchildren and we believe a great grandchild, is an exercise of heart that only Jesus can give His peace to prove how near He comes in our times of need. My plea is for the deliverance of those precious children to whom I taught the sad religious ways of brethrenism. In His time may they be delivered and prove the grace of our Lord Jesus Christ.

Another wrong assembly meeting of scripture is that of beloved Stephen in Acts 7:59,60. What triumph and victory. May we be ready to suffer and die the same as Stephen and we'll agree that being cast out of a brethren assembly meeting is nothing in comparison. Remember the scriptures speak of "the suffering and the glory."

Be glad to correspond with any on this wonderful subject.

--Ted Druckenmiller teddruck@quixnet.net

Received 30 November 2001

I was excommunicated along with my husband in 1969 for being a heretic. We were members of the Needed Truth meeting. All of our relatives were overseers and deacons, etc. The singing groups we had joined were the Sweet Adelines and the Barbershoppers. At the present time two of their overseers are members of the Barbershoppers. Have they moved the goalposts or what??

This was a horrible event for us as young people, but as they could call people like us who were literally born into the movement, saved and baptized and added to the fellowship, continuing steadfastly, etc., HERETICS, means that they must be NUTS!! and not to be taken seriously.

I think that people should now start taking them to court as violating our human rights. Joining a singing group is not a reason to be put out of fellowship. Killing somebody or getting convicted of criminal activity is.

Beth Bunting

Received 10 December 2001

All of us, who are fortunately out, have nothing to Gain from this. BUT WE DO HAVE A MORAL OBLIGATION TO HELP THOSE STILL CAUGHT UP IN THIS SYSTEM OF DICTATORSHIP, and the immoral use of members money, by their leaders.Unfortunately the powers of this world have no interest in true spirituality, and would do nothing to upset the so-called "freedom of religion" status quo. I think it would be of merit to consider the activities of their present leader, and their accountants. Are all ethical practises being adhered to here? Particularly as their accountants don't belong to any soceity that has a code of ethics.

--Stephen Rodgers