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Published online by Cambridge University Press: 31 July 2008
In this paper, the authors present different views of the legal implications of Percy v Church of Scotland Board of National Mission, in which the House of Lords reversed the Court of Session and held that a former minister could sue the Church under the Sex Discrimination Act 1975 and, contrary to previous views, probably had an enforceable contract for services. Cranmer describes the basis for the decision and suggests that it represents a realistic view of the employment status of clergy. Peterson is less optimistic about the decisions legal and practical effects and argues that it undermines the constitutional status of the Church of Scotland as well as overall prospects for religious freedom in Scotland.
1 Cranmer has written in support of the majority decision, Peterson against it: but we take joint responsibility for the article as a whole. Peterson wants to thank Sarah Ganz for her suggestions on an earlier draft.Google Scholar
2 The former disciplinary procedure subsequently abolished by Act III of 2001 [anent Discipline of Ministers, Licenciates, Graduate Candidates and Deacons].Google Scholar
3 Which meant that should she ever wish to seek a ministerial appointment in future, she would have to apply to the General Assembly for permission to resume her status as a minister.Google Scholar
4 Percy v Board of National Mission of the Church of Scotland 2001 SC 757, 2001 SLT 497, IH.Google Scholar
5 Percy (AP) v Church of Scotland Board of National Mission [2005] UKHL 73; Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote and Baroness Hale of Richmond; Lord Hoffman dissenting.Google Scholar
6 ‘In this Act, unless the context otherwise requires hellip “employment” means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly hellip’: Sex Discrimination Act 1975, s 82(1).Google Scholar
7 ‘Subject to the recognition of the matters dealt with in the Declaratory Articles as matters spiritual, nothing in this Act contained shall affect or prejudice the jurisdiction of the civil courts in relation to any matter of a civil nature’: Church of Scotland Act 1921, s 3.Google Scholar
8 Re National Insurance Act 1911, Re Employment of Church of England Curates [1912] 2 Ch 563;Google ScholarScottish Insurance Comrs v Church of Scotland 1914 SC 16, 1913 2 SLT 261;Google ScholarPresident of the Methodist Conference v Parfitt [1984] ICR 176, [1984] QB 368, [1983] 3 All ER 747, CA;Google ScholarDavies v Presbyterian Church of Wales [1986] ICR 280, [1986] 1 All ER 705, HL;Google ScholarDiocese of Southwark v Coker [1998] ICR 140, CA.Google Scholar
9 Percy (AP) v Church of Scotland Board of National Mission, para 13.Google Scholar
10 Percy, para 20: emphasis added.Google Scholar
11 Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900, EAT.Google Scholar
12 [1979] ICR 900 at 904.Google Scholar
13 Johnson v Ryan [2000] ICR 236, EAT.Google Scholar
14 Percy, para 23.Google Scholar
15 Percy, para 24.Google Scholar
16 Percy, para 32.Google Scholar
17 Percy, para 41, quoting Lord President Rodger in the First Division: 2001 SC 757 at 769, para 24.Google Scholar
18 Scottish Insurance Comrs v Church of Scotland 1914 SC 16, 1913 2 SLT 261.Google Scholar
19 Percy, para 102, quoting 2001 SC 765A.Google Scholar
20 Percy, para 106. citing the Sex Discrimination Act 1975, s 77: ‘(1) A term of a contract is void where—(a) its inclusion renders the making of the contract unlawful by virtue of this Act, or (b) it is included in furtherance of an act rendered unlawful by this Act, or (c) it provides for the doing of an act which would be rendered unlawful by this Act. (3) A term in a contract which purports to exclude or limit any provision of this Act or the Equal Pay Act 1970 is unenforceable by any person in whose favour the term would operate apart from this subsection’.Google Scholar
21 Percy, paras 115, 116.Google Scholar
22 Percy, para 119; Act XXV of 1968 (Anent Admission of Women to the Ministry).Google Scholar
23 Directive 76/207/EC.Google Scholar
24 Percy, paras 122 & 123.Google Scholar
25 Percy, para 132.Google Scholar
26 Perceval-Price v Department of Economic Development [2000] IRLR 380, N.I. CA.Google Scholar
27 Percy, para 148.Google Scholar
28 Percy, para 152.Google Scholar
29 Percy, para 61.Google Scholar
30 Percy, para 148. It might be worth noting that consideration is not a necessary requirement in order to constitute a binding contract under Scots law.Google Scholar
31 Percy, para 152.Google Scholar
32 For example, Lord Justice-Clerk Moncreiff in Wight v Dunkeld Presbytery (1870) 8 M 921: ‘If hellip this were a case in which we were called upon to review the proceedings of an inferior court, I should have thought a strong case had been made out for our interference. But whatever inconsiderate dicta to that effect may have been thrown out, that is not the law of Scotland. The jurisdiction of the Church courts, as recognised judicatories of this realm, rests on a similar statutory foundation to that under which we administer justice within these walls hellip Within their spiritual province the Church courts are as supreme as we are within the civil; and as this is a matter relating to the discipline of the Church, and solely within the cognisance of the Church courts, I think we have no power whatever to interfere’.Google Scholar
33 Lyall, F, Of Presbyters and Kings: Church and State in the Law of Scotland (Aberdeen University Press: Aberdeen 1980), chs 5–6.Google Scholar
34 Percy, para 117.Google Scholar
35 Confession of Faith Ratification Act 1690 (c 7; 12mo c 5) (Parliament of Scotland).Google Scholar
36 Act for Securing the Protestant Religion, 1707 (c 6; 12mo c 6) (Protestant Religion and Presbyterian Church Act 1707) (Parliament of Scotland).Google Scholar
37 Scottish Episcopalians Act 1711 (10 Ann, c 10).Google Scholar
38 Church Patronage (Scotland) Act 1711/1712 (10 Ann, c 21).Google Scholar
39 Auchterarder Presbytery v Earl of Kinnoull [1839] Macl & R 220 at 309, HL; see also 299.Google Scholar
40 Benefices (Scotland) Act 1843 (6 & 7 Vict, c 61).Google Scholar
41 Church Patronage (Scotland) Act 1874 (37 & 38 Vict, c 82), s 3.Google Scholar
42 Church of Scotland Act 1921, Schedule, Articles Declaratory, Article IV.Google Scholar
43 Weatherhead, J L, The Constitution and Laws of the Church of Scotland (Board of Practice and Procedure: Edinburgh 1997).Google Scholar
44 Percy, paras 56, 61–62.Google Scholar
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46 That is, until the Church of Scotland (Property and Endowments) Act 1925 (c 33), s 40, was repealed by the Abolition of Feudal Tenure etc (Scotland) Act 2000 (asp 5), Sch 12, para 16(11).Google Scholar
47 See eg Munro, C R, ‘Does Scotland Have an Established Church?’ (1997) 4 Ecc LJ 639.Google Scholar
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49 Hay, R C, Craig, V C et al. , ‘Employment’ in The Laws of Scotland: Stair Memorial Encyclopaedia, vol 9, para 378, citing the Sex Discrimination Act 1975, s 65(1)(b).Google Scholar
50 Ibid, citing the Sex Discrimination Act 1975, s 65(1)(c).
51 Lyall, F, Of Presbyters and Kings: Church and State in the Law of Scotland, pp. 37–41.Google Scholar
52 Percy, para 152, quoted at n 31 above.Google Scholar
53 MacLean, M A, Crown Rights of the Redeemer: A reformed approach to sovereignty for the national church in the 21st century (University of Edinburgh 2004), pp 152–153.Google Scholar
54 Ibid, quoting van Bijsterveld, S C, ‘Religion International Law and Policy in the Wider European Arena: New Dimensions and Developments’ in Ahdar, R J (ed) Law and Religion (Ashgate, Dartmouth 2000) 163.Google Scholar
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56 Declaration II on the status of churches and confessional organisations, Official Journal C 340, http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028.Google Scholar
57 Perceval-Price v Department of Economic Development [2000] IRLR 380, NI CA.Google Scholar
58 United States v Ballard 322 US 78 (1944), US SC.Google Scholar
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