Scottish Court of Session Decisions

[1] In this appeal the appellant is Helen Percy and the respondents are the Board of National Mission of the Church of Scotland ("the Church"). The appellant was ordained as a minister of the Church in 1991. From 19 June 1994 until 3 December 1997 she was an associate minister in the charge of Airlie, Ruthven and Kingoldrum with Glenisla linked with Kilry linked with Lintrathen in the Presbytery of Angus ("the Presbytery"). In June 1997 an allegation of misconduct was made against the appellant. In the wake of the allegation the appellant first offered to resign from the Presbytery and from "her employment" with the respondents with effect from 17 June 1997. But on 23 June she withdrew her resignations and the respondents then agreed "to reinstate [her] employment from 17th June 1997". In the circumstances the Presbytery appointed a committee of enquiry to investigate the matter and, for that reason, the respondents' General Secretary, the Rev. Douglas Nicol, informed the appellant that she had been suspended from duty on full salary from 25 June until further notice. On 2 December 1997 the Presbytery accepted the appellant's demission of status as a minister as from 3 December 1997 and on 3 December she accordingly ceased to be the associate minister in the charge.

[2] In February 1998, on the basis of the events which I have outlined, the appellant made an application to the Industrial Tribunal for compensation alleging unfair dismissal and sex discrimination by the respondents. The part of the application relating to sex discrimination was in these terms:

On 21 September 1998 the Employment Tribunal dismissed her application. She appealed, but only against the rejection of her claim for sex discrimination. On 30 March 1999 the Employment Appeal Tribunal refused her appeal but they subsequently gave leave to appeal. Before this court she put her appeal on two grounds: first, that the Employment Appeal Tribunal had erred in law in finding that her claim of sex discrimination fell outside the jurisdiction given to the Employment Tribunal by Section 63(1) of the Sex Discrimination Act 1975 ("the 1975 Act"); and, secondly, that the Employment Appeal Tribunal had erred in law in finding that the arrangement between the appellant and the respondents did not constitute employment under a contract personally to execute any work or labour, within the meaning of Section 82(1) of the 1975 Act.

[3] Section 63(1) of the 1975 Act provides that an applicant may present to an Employment Tribunal a complaint that the respondent has committed an act of discrimination against the applicant which is unlawful by virtue of Part II of the Act. Section 6(2)(b), which is contained in Part II, provides that it is unlawful for a person, "in the case of a woman employed by him" to discriminate against her "by dismissing her, or subjecting her to any other detriment". In terms of Section 82(1) "employment" means inter alia "a contract personally to execute any work or labour" and related expressions, such as "employed", are to be construed accordingly. Before this court the contention for the appellant was that during the period from June 1994 to December 1997 she had been employed by the respondents. More particularly, there had existed a contract between the appellant and the respondents under which she had contracted personally to execute work or labour as an associate minister in the parish concerned. Mr. Napier, who appeared for the appellant, accepted that, if this contention failed, then the appeal would fail also, since Section 6(2)(b) of the 1975 Act would not apply to the appellant. For the respondents Mr. Hodge, Q.C., argued that not only should this contention of the appellant fail but in any event, even if there had been a contract of employment between the applicant and the respondents, the Employment Tribunal had no jurisdiction to entertain any complaint by the appellant of sex discrimination since it was a question concerning an office in the Church in terms of Article IV of the Declaratory Articles contained in the Schedule to the Church of Scotland Act 1921 ("the 1921 Act") and was accordingly a matter spiritual in terms of Sections 1 and 3 of that Act. It followed that the Church had the right, "subject to no civil authority," to adjudicate finally on the matter and the Employment Tribunal had no jurisdiction. Mr. Napier argued that on the ordinary principles of construction the appellant's claim was not a spiritual matter within the terms of the 1921 Act. Alternatively, even if it would otherwise fall to be so classified, by virtue of the Equal Treatment Directive (Directive 76/207/EEC) the provisions of the 1975 Act and of the 1921 Act had to be interpreted in such a way as to affirm the jurisdiction of the Employment Tribunal, even if this meant that the civil authority was entering to some extent into an area where Parliament had been concerned in 1921 to declare the autonomy of the Church courts.

[4] Both the Employment Tribunal and the Employment Appeal Tribunal looked first at the 1921 Act and concluded that its effect was to exclude their jurisdiction. In my view, however, it would not really be possible to determine what the effect of that Act might be in this case without first identifying the nature of the relationship upon which the applicant founds her case. In that respect the two issues are interlinked. I therefore turn first to consider whether the appellant was "employed" by the respondents in terms of "a contract personally to execute any work or labour". Unless she was, her appeal must in any event be refused and her application dismissed. In Kelly v. Northern Ireland Housing Executive [1998] ICR 828 at p. 845 F Lord Clyde acknowledged that the concept of the contract envisaged by this wording is a wide and flexible one. Both parties accepted that this was indeed the correct approach and so it is on that basis that we must decide whether there was such a contract between the parties. In presenting his submissions to the court, Mr. Napier concentrated on the documents produced before the Employment Tribunal which deal with this particular case. I prefer, however, to try to fit those documents into a slightly wider picture drawn on the basis of the legislation of the Church and the circumstances of this case.

[5] The work of the Church of Scotland is, and has always been, carried out largely through its parishes. Originally, these were the traditional parishes in which the minister's stipend was paid for the most part out of the teinds gathered from the heritors. But, as the population grew and shifted, especially in the nineteenth century, there were too few churches and the traditional parish system and the related system of finance proved inadequate. New forms of organisation were adopted. This was the era of chapels of ease and Parliamentary ministers. As matters developed, new quoad sacra parishes were erected. Especially in the latter part of the last century, however, a different trend made itself felt: the numbers of people attending church declined and, as a result, the Church recognised that in some areas there were now too many churches and too many parishes. New forms of reorganisation were put in place to meet these new circumstances. Among the solutions which the Church adopted were the creation of a single charge out of what had formerly been two or more charges and the linking of various charges so that they could all use the services of the same minister or ministers. For present purposes the basic legislation is to be found in two Acts of the General Assembly, Act IV, 1984 anent Unions and Readjustments and Act V, 1984 anent Settlement of Ministers, which, as amended, regulated the position in 1993 when a vacancy arose in the charge of Airlie linked with Kingoldrum linked with Ruthven.

[6] The Presbytery reviewed the situation and decided, in terms of Section 3 of Act V, 1984 to pursue the question of readjustment. Thereafter, in terms of the provisions of Act IV, 1984, the Presbytery conferred with the relevant Kirk Sessions and the Parish Reappraisal Committee, which is a committee of the respondent Board. In broad outline, the Presbytery formulated a scheme in which the congregations of Airlie, Ruthven and Kingoldrum would unite but would continue to have the same three places of worship. This united congregation would be linked with the neighbouring charge of Glenisla linked with Kilry linked with Lintrathen and the minister of that neighbouring charge, the Rev. Robert Ramsay, would become the minister of the new charge. In the context of this scheme the Presbytery envisaged that a community minister should be appointed and they made the necessary application to the Parish Reappraisal Committee. Eventually, however, on 21 December 1993 the Presbytery and the Reappraisal Committee agreed that an associate minister should be appointed. On 9 February 1994 the Reappraisal Committee approved the draft Basis of Union of the congregations of Airlie linked with Ruthven linked with Kingoldrum and the draft Basis of Linking between the resulting united congregation and the congregations of Glenisla linked with Kilry linked with Lintrathen. Paragraph 10 of the Basis of Linking provided that an associate minister would be appointed to assist the minister and to act as chaplain at H.M. Prison, Noranside, subject to the approval of the Joint Prison Chaplaincy Board, in accordance with the earlier decision of the Reappraisal Committee. The respondents proceeded to set up an appointments committee and on 1 February 1994 the Presbytery appointed the Depute Clerk and the Rev. Robert Ramsay to serve on the committee. The appointment was advertised in the press and, in due course, on 20 April the respondents' General Secretary invited the appellant to accept appointment as associate minister. On 25 April the appellant travelled to Airlie to meet Mr. Ramsay and representatives of the congregation and, the following day, she wrote to the respondents' General Secretary formally accepting the appointment. On 3 May the Presbytery agreed to hold the service of linking of the charges, along with the introduction of the appellant as associate minister and the installation of Mr. Ramsay as minister of the linked charge, on Sunday 19 June. The service was held on that day and the appellant was introduced as associate minister. This marks the beginning of what she contends was her period of "employment" by the respondents.

[7] Mr. Napier emphasised that the appellant was simply the associate minister in the charge rather than the parish minister. His contention was that the two positions should be distinguished for present purposes. Referring to Hastie v. McMurtrie (1889) 16 R. 715, he argued that a parish minister held an office, a munus publicum, and his or her rights and obligations derived from that office and not from contract. So, for example, the parish minister would normally be entitled to remain in office until sixty-five and, by entering into the office and performing its duties, the parish minister became entitled to the stipend attached to the charge. The rights and duties of an associate minister such as the appellant, on the other hand, were based on the contract which she entered into with the respondents. So, for instance, potential applicants for the appointment had been supplied with details which included "Terms and Conditions" explaining that the appointment was for a five-year period, that there would be a salary at the level of the minimum stipend, that a manse would be supplied and that travelling expenses would be paid. When the General Secretary formally offered the appellant the appointment, he appended to his letter of 22 April 1994 a copy of the relevant terms and conditions. These defined the duration of the appointment, the salary and the Aims and Duties:

In addition, the terms and conditions regulated the appellant's right to preach outside the parish and the matter of payments for the prison chaplaincy work. Mr. Napier submitted that these terms and conditions were incorporated into a contract between the appellant and the respondents which was constituted when, on 26 April 1994, she wrote to the respondents' General Secretary "to give formal acceptance of the offer of the post" in question. The appellant's understanding that she had such a contract with the respondents could be seen in a letter which she wrote to Mr. Nicol on 7 November 1996 indicating that "it could well be near the end of my present contract" before some particular matters could be sorted out.

[8] For his part Mr. Hodge suggested that the differences between the position of a parish minister and the position of an associate minister were not of much significance. In reality there was, he said, little difference nowadays between the parish minister's right to a stipend and the associate minister's right to a salary. Moreover, the position of associate minister was recognised as an office in Church legislation. In particular Section 18(c) of Act IV, 1984 provided that where a proposed union or linking would involve the appointment of one or more associate ministers:

In such a situation the duties of both the minister of the charge and the associate minister were to be defined by the Presbytery.

[9] Certain points are not in doubt. As an ordained minister the appellant held an office in the Church. That is plain from the reference to the spheres of labour of its "ministers and other office-bearers" in Article IV of the Declaratory Articles. It was indeed this office which she gave up when she demitted status. I am also satisfied that an associate minister holds a position which is recognised in the legislation of the Church and can, in that sense, properly be regarded as an office. The provisions of Act IV, 1984 are conclusive on that matter. On the other hand, it is unwise and ultimately unhelpful to ignore the differences between the offices of a parish minister and an associate minister. Perhaps the starkest of these differences lies in the way in which a minister enters into the two offices. The parish minister is inducted into the charge after a procedure of election by the congregation and a call sustained by the presbytery. The history of the Church in the nineteenth century makes it impossible to play down the importance of this procedure. By contrast, as this case shows, an associate minister is introduced into the charge after an appointment procedure which may in practice be conducted by the respondents with only relatively limited local participation. Likewise, in terms of Section 31(1) of Act VIII, 2000, Consolidating Act anent ministry, a parish minister is inducted to a charge until he is sixty-five unless, exceptionally, the minister is called and inducted on one of the three conditions set out in Section 15(1) of Act IV, 1984. By contrast, the length of tenure of an associate minister depends on the terms of his or her appointment. The functions of a parish minister are defined in Section 19(1) of the same Act and, in terms of Section 33 of Act III, 2000, Consolidating Act anent Church Courts, he is the Moderator of the Kirk Session, whereas an associate minister is simply a member of the Session. Other differences could be identified, but these are sufficient in my view to show that we should not too readily assume that the two positions fall to be treated in the same way for present purposes. More particularly, the fact that a parish minister holds a public office and is not "employed" by anyone does not necessarily justify the conclusion that an associate minister is likewise not "employed" by the respondents who appoint her. To that extent I would reject Mr. Hodge's argument.

[10] But his argument provides an important starting-point for considering whether the arrangement between the appellant and the respondents comprised a contract of employment for the purposes of the 1975 Act. The arrangement was one between the appellant as a minister of the Church and the Board of the Church set up by the General Assembly to promote its mission in Scotland. Like any other minister holding a practising certificate, she would have the functions of conducting public worship, administering the sacraments and solemnising marriages (Section 4 of Act II, 2000). The terms and conditions supplied to the appellant gave little more specification of her duties, since they merely said that she was to conduct religious worship every Sunday and to work along with the parish minister. In addition she had, of course, to act as a prison chaplain. But that appointment was one which she held under a separate agreement with the relevant department of the Scottish Office and it is of no relevance for present purposes.

[11] Properly construed, the agreement with the respondents was one for the appellant to perform the duties of a minister of the Church along with the parish minister in the new charge. Such duties are, in their very essence, spiritual. I acknowledge that it is entirely possible for someone to be employed as a servant or as an independent contractor to carry out spiritual duties. See Davies v. Presbyterian Church of Wales [1996] I.C.R. 280 at p. 289 C per Lord Templeman and Diocese of Southwark v. Coker [1998] ICR 140 at p. 150 E - F per Staughton L.J. Indeed in Hastie v. McMurtrie neither the then Procurator of the Church, Sir Charles Pearson, as counsel for the Foreign Mission Committee, nor Lord President Inglis seems to have balked at the assumption that the Committee had entered into a contract of employment with a licentiate under which he would be ordained as a minister before setting sail for India to serve as a missionary and as Principal of the General Assembly's institution in Calcutta. In that case, however, the issue was whether Mr. Hastie held an office ad vitam aut culpam or had been appointed only on the more restricted basis contained in the agreement between the parties. The exact nature of that agreement was not crucial to the decision. For that reason, and because the appointment was not just to act as a missionary but also to occupy the position as head of the college in Calcutta, the decision provides no real guidance on the point at issue in the present case.

[12] In Coker Mummery L.J. - a judge with special experience in areas of employment law - pointed out ([1998] I.C.R. at p. 147 C) that not every agreement constitutes a binding contract and, for there to be such a contract, there must be an intention to create a contractual relationship giving rise to legally enforceable obligations. Generally, such an intention can be presumed but

I recognise that Mummery L.J. was dealing with a case of unfair dismissal where the applicant had to show that he was an "employee" within the narrower sense of that term as it is used in the Employment Rights Act 1996. Nevertheless, all due allowance having been made for that difference and for all the differences between the position of an assistant curate in the Church of England and an associate minister in the Church of Scotland, his Lordship's observations are apposite in this case also. In that connexion I note that in Coker Mummery L.J. referred to cases involving clergymen of other denominations and in Scottish Insurance Commissioners v. Church of Scotland 1914 SC 16 both Lord Kinnear and Lord Johnston referred to In re Employment of Church of England Curates [1912] 2 Ch 563.

[13] Simply on the basis of the observations of Mummery L.J., I would start from the presumption - rebuttable, of course - that, where the appointment was being made to a recognised form of ministry within the Church and where the duties of that ministry would be essentially spiritual, there would be no intention that the arrangements made with the minister would give rise to obligations enforceable in the civil law. Mr. Napier accepted that in this matter the parties' intention was to be ascertained objectively (per Mummery L.J. at [1998] I.C.R. at p. 147 C) and suggested that here their intention of creating obligations enforceable in the civil law could be gleaned from the respondents' formal offer of the appointment on specified terms and conditions followed by the appellant's formal acceptance of that offer.

[14] There is no doubt that these documents are in formal terms which, in another context, might readily support the inference that Mr. Napier sought to draw from them. But in the present context I attach little importance to the formality of the documentation. The documents were, after all, designed to regulate important matters and in such documents a certain degree of formality is to be expected, even in these days when informality often appears to be considered a virtue in itself. More importantly, however, the documentation emanated from a board of a church whose constitution is made up of a hierarchy of "courts" and which asserts the right "to legislate, and to adjudicate finally, in all matters" of a spiritual nature (Declaratory Article IV). In exercise of that right the General Assembly enacts laws which have many of the stylistic and other hallmarks of the kind of legislation which is enacted by Parliament. The procedures of the Church courts are replete with terminology which is familiar to practitioners of Scots law. The language does nothing indeed to conceal the hand which those trained in Scots law have had in guiding such proceedings down the centuries. None the less, despite their outward appearance, the laws of the Church operate only within the Church and her courts adjudicate only on matters spiritual. In other words, the formality and indeed solemnity of all these transactions and proceedings does not disclose an intention to create relationships under the civil law; rather, it reflects the serious way in which the Church regulates the matters falling within the spiritual sphere. For that reason, the formality of the documentation in this case, relating to the arrangement between the respondents and the appellant for her appointment as an associate minister, is in itself no indication that the arrangement was meant to create obligations enforceable in the civil law. The documents were generated indeed for the purposes of making an appointment which is recognised in the legislation of the Church. In my view, all that the formal language really shows is that here too, as in other matters, the Church has regulated the appointment with appropriate precision, but still within the framework of ecclesiastical as opposed to civil law. Similarly and for the same reasons, the formal tone and terminology of the subsequent correspondence between the appellant and Mr. Nicol do nothing to persuade me that there had ever been an intention on the part of the appellant and respondents to create relations which would be enforceable in the civil courts.

[15] In the Coker case Mummery L.J. attached importance to the pre-existing legal framework of the church and to the existence of ecclesiastical courts with jurisdiction over the clergy. Both points resonate in this case also. More particularly, however, as an ordained minister, the appellant was at all times subject to the supervision and discipline of the relevant presbytery. On becoming an associate minister at Airlie, the appellant became a member of the Presbytery of Angus (Section 11 of Act III, 2000) and subject to the discipline of the Presbytery in matters of life and doctrine. It was for the Presbytery to oversee her conduct and her discharge of her professional duties. See Cox, Practice and Procedure of the Church of Scotland (sixth edition, 1976), p. 154 and Lord Davidson, "The Church of Scotland", Stair Memorial Encyclopaedia Vol. 3 (1994) paragraph 1567. The reality therefore was that, if the appellant failed in her duties as associate minister, the matter would ultimately be dealt with by the Presbytery rather than by the respondents. And, for the most part, it did indeed turn out to be so. When trouble came in June 1997, the Presbytery appointed a committee to carry out a preliminary enquiry in terms of Section 5 of Act VII, 1935 anent Trials by Libel. In due course, as I have noted, the Presbytery accepted the appellant's offer to demit her status as a minister and this brought her appointment with the respondents to an end on 3 December. The fact that the complaint was dealt with and disposed of by the Presbytery, as the court of the Church having supervisory and disciplinary jurisdiction over the appellant, is a factor which tends to reinforce the view that the appellant's appointment is best seen within the overall context of the legal structures of the Church and its courts, rather than as something intended to give rise to rights and obligations under the civil law of Scotland.

[16] In one respect, however, events took what appears to be a somewhat surprising turn. Because of the appellant's eventual offer to demit her status as a minister, proceedings came to an end before the Presbytery had to decide whether to proceed further and prepare a libel for revision by the Procurator. A fortiori the Presbytery did not reach the stage of having to decide, after holding the libel relevant, whether to suspend the appellant in terms of Section 23 of Act VII, 1935. But in fact, months earlier, when the appellant withdrew her initial resignation in June 1997, Mr. Nicol intimated to her that, in view of the fact that the Presbytery had set up a committee of enquiry, she was suspended from duty on full salary from 25 June until further notice. Subsequently, when reports of the appellant conducting a service in the north of Scotland appeared in the press, the representatives of the Presbytery wrote to her reminding her of Mr. Nicol's letter informing her of her suspension. The letter went on to say that the Business Committee of the Presbytery shared the understanding of the Principal Clerk of the General Assembly, Dr. Finlay Macdonald, that the appellant was unable to perform any ministerial functions. The significance of this correspondence is that it shows that, at a stage when the Presbytery had no power under Act VII, 1935 to suspend the appellant from her office as associate minister in the charge, the respondents in effect achieved the same result by exercising, or purporting to exercise, a power to suspend her under her agreement with them relating to her appointment. Mr. Napier submitted that this action by the respondents showed that they had indeed employed the appellant and that, if their suspension of her had been discriminatory, she was entitled to a remedy under the 1975 Act.

[17] I am unable to draw this inference from these events. For one thing, we heard no submissions as to the validity of the respondents' suspension of the appellant. I accordingly leave that matter on one side. More importantly, the mere fact that the respondents exercised, or purported to exercise, a power to suspend the appellant from duty does not, in itself, tell us anything as to whether any such power would arise under an agreement which was intended to operate within the sphere of the law of the Church or within the sphere of the civil law. That being so, I find nothing in this particular episode which persuades me that the parties had intended to enter into a contract enforceable under the civil law.

[18] Of course, in reaching that overall conclusion, I have taken particular account of the view expressed by Dr. Andrew Herron, the former Moderator of the General Assembly and Clerk to the Presbytery of Glasgow, a graduate in law and a man with decades of experience in the affairs of the Church. When dealing with the position of associate ministers in his book, The Law and Practice of the Kirk (1995), p. 227, he says:

For the reasons already given, I would agree that there is a difference between the position of a parish minister and that of an associate minister. I would also agree that certain important terms of the appointment of an associate minister rest on the agreement which the minister enters into with the respondents. But, in so far as Dr. Herron may be thought to envisage that the relationship between the associate minister and the respondents must constitute a contract of employment giving rise to rights enforceable in the civil courts, I would respectfully disagree, for the reasons which I have set out above. In a nutshell, the parties do not normally have the necessary common intention to create such a contract.

[19] Mr. Napier submitted that it was not open to this court to conclude that in this case the parties had not entered into a contract since the Employment Tribunal, the finder of fact, had concluded otherwise after seeing and hearing Dr. Macdonald and Mr. Nicol giving evidence. We could interfere with the Tribunal's finding only if it was perverse and there was, he said, no basis for so describing this finding. In many cases an argument of that kind would be powerful indeed, but in this case I am not persuaded by it. The Tribunal's primary findings in fact are contained in a passage in the chairman's decision headed "The evidence and the factual background". The account of the facts which I have given in this opinion is indeed based on those findings, expanded by reference to the relevant legislation and documents. Having made those findings, the Tribunal went on to consider the arguments relating to the 1921 Act and to conclude that the subject matter of the application fell within the exclusive jurisdiction of the Church. Having reached that conclusion, the chairman chose to go on to indicate what his view would have been on other arguments advanced by the appellant. It follows that these observations were obiter. The chairman first said that, had he been required to do so, he would have found that there was no contract of employment and that the appellant was not an employee as defined by Section 82(1) of the 1975 Act. He referred inter alia to Davies and to Coker, as well as to the extended definition of employment in Section 82(1) of the 1975 Act, along with two cases on its interpretation. He then continued:

The chairman's conclusion must have been based on the inference which he drew from the facts that he had found earlier in his decision. Admittedly, the passage is not altogether easy to interpret. But it would in my view be wrong either to tear the words "there was a contract in existence" from their context or to ignore the fact that the chairman had just referred to the cases of Davies and Coker. When these matters are taken into account, it appears to me that, on any view, the chairman was satisfied that any "contract" or agreement entered into between the parties did not constitute a contract of employment within the meaning of Section 82(1) of the 1975 Act. That conclusion is consistent with my own conclusion.

[20] Indeed my conclusion that the agreement between the appellant and the respondents was not intended to constitute a contract in our civil law is sufficient for the disposal of the appeal precisely because it entails the further conclusion that the appellant was not "employed" by the respondents within the meaning of Section 82(1) of the 1975 Act and so Section 6(2)(b) did not apply. In deference, however, to the full argument presented by counsel for both parties, I think it right to deal, albeit more briefly, with some of the other points argued before us on the assumption that, contrary to my view, the agreement between the parties did indeed constitute a contract of employment in terms of the civil law and, more particularly, in terms of Section 80(1) of the 1975 Act.

[21] Mr. Hodge made the point that the passage from the application which I have quoted in paragraph 2 above contains little specification of the way in which the respondents, as the Board of National Mission, are said to have discriminated against the appellant. That is undoubtedly the case. Indeed, as he also suggested, the main thrust of the appellant's statement of claim to the Employment Tribunal was directed against the actings of the Presbytery. The statement of claim sought to tie the respondents into the actings of the Presbytery by averring that the respondents had acted "through" the Presbytery or that the Presbytery had acted "on behalf of" the respondents. In the light of the relevant Church legislation which I have already narrated I am satisfied, however, that, in investigating and dealing with the fama against the appellant and ultimately accepting her demission of status, the Presbytery were exercising powers specifically given to them by Church law and were in no sense acting on behalf of the respondents. Any appeal would have lain to the General Assembly and the respondents would have had no role in that appeal. It was notable that, when he was expounding the appellant's case to this court, the only acting on the part of the respondents which Mr. Napier actually identified was the suspension of the appellant while the Presbytery were inquiring into the allegations against her. In this appeal, which is concerned only with jurisdiction, I do not take the point any further, however, since Mr. Napier pointed out that the respondents had, doubtless for good reasons, refrained from asking for any further specification of the appellant's case as set out in her application to the Tribunal.

[22] Although Mr. Hodge sought in some measure to argue that the Church was not completely bound by the 1975 Act, even he had some difficulty in making the various aspects of that argument cohere. The Act itself contains no section specifically disapplying it in the case of the Church of Scotland. Nor is it disapplied in the case of churches generally. On the contrary, by providing that nothing in Part II applies to employment for purposes of an organised religion where the employment is limited to one sex so as to comply with the doctrines of the religion or to avoid offending the religious susceptibilities of a significant number of its followers, Section 19(1) shows that the relevant provisions of the Act do indeed apply to a religious body such as the Church of Scotland which has no such limitation on employment to one sex. Nor indeed did Mr. Hodge argue otherwise in the case of contracts under which the Church employed, say, clerks or lawyers or accountants. In all these instances the Church would be bound by the 1975 Act and amenable to the jurisdiction of the Employment Tribunals. For my part, in the absence of any express term in the Act, I find it difficult to see on what basis the relevant Church body would be bound by the 1975 Act in respect of these cases but not in the (hypothetical and, perhaps, unlikely) circumstances where the respondents had actually entered into contracts of employment, binding under civil law, with ministers to perform the functions of a particular office. In reality Mr. Hodge's argument was not so much concerned with the application of the 1975 Act as with the interplay between that Act and the 1921 Act.

[23] In that respect Mr. Hodge took his stand on high and well-trodden ground. Reminding the court of the Disruption of 1843 and of the subsequent efforts of the Church to reunite with its separated brethren, he emphasised the constitutional importance of the 1921 Act, declaring the lawfulness of the Declaratory Articles as to the constitution of the Church in matters spiritual. Article IV was particularly important since it declared that the Church receives from the Lord Jesus Christ its Divine King and Head "and from Him alone" the right and power "subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church...". The Article went on to say that "Recognition by civil authority of the separate and independent government and jurisdiction of this Church in matters spiritual, in whatever manner such recognition be expressed, does not in any way affect the character of this government and jurisdiction as derived from the Divine Head of the Church alone, or give to the civil authority any right of interference with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction." Under reference to Ballantyne v. Presbytery of Wigtown 1936 S.C. 625, Mr. Hodge argued that the combined effect of Sections 1 and 3 of the Act, taken along with Article IV, was to exclude the jurisdiction of the Employment Tribunal and any appellate court in a case concerning the appointment of a minister.

[24] As Mr. Napier pointed out, the right and power which the Article claims are "to legislate and adjudicate finally" on various matters, including the right to determine all questions concerning office in the Church. He therefore accepted that this court would have had no power to interfere with the decision or proceedings of the Presbytery or General Assembly concerning the complaint against the appellant. He emphasised, however, that the applicant's claim was directed against neither of these bodies but against the respondents as a Board which had neither legislated nor adjudicated on the matter in question: what they had done, according to the appellant, was to enter into a contract with her under the civil law and then discriminate against her by subjecting her to a detriment. There was therefore no question of the Employment Tribunal interfering with any proceedings or decision of the Church courts concerning her appointment. Nor, as Mr. Hodge accepted, was there any equivalent right to redress for such discrimination in Church law, however sympathetic the General Assembly might actually be in practice if a minister had indeed suffered discrimination at the hands of the Church authorities. It is sufficient to say, without deciding, that I see force in the argument that, if the appellant and the respondents had indeed entered into a contract of employment binding under the civil law, then they would have deliberately left the sphere of matters spiritual in which the courts of the Church had jurisdiction and would have put themselves within the jurisdiction of the civil courts - as seems to have been assumed was the position in Hastie v. McMurtrie.

[25] Finally, Mr. Napier relied on the Equal Treatment Directive. Our duty, as spelled out by the Court of Justice in paragraph 8 of their opinion in Marleasing SA v. La Comercial Internacional de Alimentación SA [1990] E.C.R. I - 4134, was to interpret both the 1921 and 1975 Acts "so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 [now 249] of the Treaty." In particular we should apply that approach, if necessary, to the interpretation of Article IV of the Declaratory Articles contained in the Schedule to the 1921 Act. In Webb v. EMO Air Cargo (U.K.) [1993] ICR 175 at p. 187 E Lord Keith of Kinkel, with whom the other members of the House concurred, held that the court's obligation was to "construe a domestic law to accord with the terms of a directive in the same field only if it is possible to do so."

[26] If the Marleasing approach to interpretation were to be applied in the manner envisaged by Lord Keith, then it would apply to the 1975 Act since it is in the same field as the Equal Treatment Directive. It is less clear whether the same approach would apply to the 1921 Act. Even if it did apply to that Act, however, I am far from sure that any court could rely on Marleasing and the Equal Treatment Directive to impose a novel interpretation on the constitution of the Church in matters spiritual. In my view, the proper question would be whether, in the light of Marleasing, the 1975 Act should be interpreted as covering the case of ministers employed qua ministers by some Church body, if necessary by holding that it impliedly amended Section 3 of the 1921 Act so as to affirm the jurisdiction of the Employment Tribunal. While accepting that this would indeed be the appropriate question, Mr. Hodge submitted that, in view of the constitutional significance of the 1921 Act, it could not lightly be assumed that Parliament would have made any such amendment merely by implication. Mr. Napier countered by pointing out that we should be at least equally slow to qualify the apparently unqualified terms of the 1975 Act in such a manner as would lead to the conclusion that the United Kingdom had failed adequately to transpose the Equal Treatment Directive into our domestic law. Fortunately, I find it unnecessary in this case to determine the point.

[27] For these reasons I would refuse the appeal.

[1] I have had the advantage of reading the opinion of your Lordship in the Chair in draft. I am in full agreement with it and, in particular, with the reasons given by your Lordship for concluding that the appellant was appointed to and held an office which was recognised in the legislation of the Church of Scotland as being that of a spiritual nature, such that the arrangements giving rise to her appointment were not intended to create obligations enforceable in the civil law.

[2] For my own part I am particularly influenced by a consideration of certain of the provisions of that legislation to which we were referred, namely, those in section 18 of Act IV 1984 and section 26 of Act V 1984. The terms of section 18 state that, upon the linking proceeding to form one charge as occurred in the present case, the charge was to be served by two "ministers" but only one might be the minister of the charge. The other required to be denominated as the associate minister. But that appointment proceeded upon the basis that an "Associate Ministry" had already been established within the parish which was the subject of the linked charge as provided by section 26(2) of the Act V 1984. That is to say that such a ministry had been established upon a resolution of the Presbytery, with the concurrence of the Assembly's Committee on Parish Reappraisal. It was to such an Associate Ministry that the appellant was appointed in accordance with the provisions of section 26 and as an associate minister a service of introduction required to be arranged for her on "the lines of an induction" as set out in section 26(6). In that service she required to affirm her adherence to a vow in relation to the discharge of the duties of her ministry.

[3] Your Lordship notes the formality of the language used in certain of the documents referred to at the appeal and also that certain of the language used, both in that documentation and in correspondence, was language familiar to employment law. I do not find this surprising and would only note that such language is to be found elsewhere in the legislation of the Church, for instance, that applied in section 15 of Act IV 1984 in relation to a minister called to a vacant charge. In such a case the Presbytery may decide to induct a minister, on any of three conditions, on a tenure terminable upon giving six months' notice in writing or reviewable on the occurrence of a specified event or at a specified date. On the date of termination the minister shall be deemed to have demitted his or her charge (see section 15(a) and (b) of the Act IV 1984). It is further provided that before proceeding to induct a minister in terms of that section, the Presbytery requires to submit to him or her the Basis of Terminable Tenure, and obtain and record his or her written acceptance thereof.

[4] I therefore agree that the appeal be refused.

I have had the opportunity of reading the Opinion of your Lordship in the chair. Since I agree entirely with its reasons and conclusions there is nothing I can usefully add.