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Clergy Employment, Judicial Review and the Free Presbyterian Church of Scotland
Published online by Cambridge University Press: 20 August 2010
Extract
The Revd Allan Macdonald was inducted as Free Presbyterian Minister at Daviot, Tomatin and Stratherrick in 2001. He received neither a written contract of employment nor a statement of terms and conditions. In 2006 he wrote book, Veritatem Eme, that was highly critical of some aspects of the life of the Church and was ordered to apologise. He refused to comply, was temporarily suspended in January 2007 and suspended from the ministry sine die – in effect, dismissed – in May 2008.
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References
2 Buy the Truth – Proverbs 23:23 in the Vulgate version: veritatem eme et noli vendere sapientiam.
3 Macdonald v Free Presbyterian Church of Scotland [2009] ET S/11071/08 (28 May 2009) at para 81.
4 Meek v City of Birmingham District Council [1987] IRLR 250: that although judgments are not required to be ‘… an elaborate formalistic product of refined legal draftsmanship …’ they should ‘… contain an outline of the story … and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts’, per Bingham LJ at para 9.
5 Macdonald v Free Presbyterian Church of Scotland [2010] UKEAT S/0034/09/BI (10 February 2010), available at <http://www.bailii.org/uk/cases/UKEAT/2010/0034_09_1002.html>, accessed 14 March 2010.
6 [2010] UKEAT S/0034/09/BI at 52. The issue of clergy employment also arose recently, though as a side-issue, in Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 (16 March 2010), in which the Court of Appeal found for a claimant who sought damages for sexual abuse by a priest of the Archdiocese. At first instance Jack J had held that the Archdiocese was not vicariously liable for the abuse. On appeal, counsel for the Archdiocese accepted that the errant priest should be treated as its employee for the purposes of the action while insisting that this should not be taken as a general admission that a priest was, or was in the same position as, an employee – and the appeal proceeded on that basis. The issue of principle as to whether or not a Roman Catholic priest was ‘employed’ by the Church was not pursued.
7 See Lord Hope in Percy v Board of National Mission of the Church of Scotland 2006 SC (HL) 1 at 87.
8 [2010] UKEAT S/0034/09/BI at 55.
9 [2010] UKEAT S/0034/09/BI at 39.
10 Following New Testament Church of God v Stewart [2007] EWCA Civ 1004 (19 October 2007): [2008] ICR 282.
11 [2010] UKEAT S/0034/09/BI at 42: sic. It may be helpful to clarify the slightly-confusing reference in paragraph 7 of Lady Smith's judgment to the Disruption of 1843 and the fact that the Protest and Deed of Separation of the founders of the Free Church were ‘recorded in a document dated 14 August 1893’. The Free Presbyterian Church was the result of a further schism in 1893, when The Revd Donald Macfarlane of Raasay and two elders laid a Protest on the Table at the Free Church General Assembly and left it to found the Free Presbyterian Church in the same year. Macfarlane and his colleagues took care formally to record the Protest and Deed of Separation of 1843 in their own founding documents 50 years later because they asserted that it was they who were the ‘true’ Free Church and that the body which they had left had departed from the theological principles espoused at the Disruption.
12 New Testament Church of God v Stewart [2007] EWCA Civ 1004 at 55.
13 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 AER 433 and Lee v Chung and Shun Shing Construction and Engineering Co Ltd [1990] IRLR 236 followed.
14 Brentnall v Free Presbyterian Church of Scotland 1986 SLT 470. For a discussion of that case, see Cranmer, F, ‘Judicial Review and Church Courts in the Law of Scotland’, [1998] Denning Law Journal 49–66Google Scholar at 54 ff.
15 McDonald v Burns 1940 SC 376.
16 Ibid at 383.
17 Forbes v Eden (1865) 4 M 143, in which Lord Cowan declared at 163 that the courts would not review the actings of ecclesiastical judicatories unless ‘[s]ome civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages … be alleged and instructed’.
18 McDonald, Re Application for Judicial Review [2010] ScotCS CSOH 55 (28 April 2010) available at <www.bailii.org/scot/cases/ScotCS/2010/2010CSOH55.html>, accessed 10 May 2010.
19 [2010] ScotCS CSOH 55 para 20.
20 Para 4.
21 Para 28.
22 ‘Office holder/employee status’, available at <http://cofe.anglican.org/lifeevents/ministry/workofmindiv/dracsc/rctshomepage/faqs/faqs2.htm>, accessed 27 March 2010: emphasis added.