Scottish Insurance Commissioners v Church of Scotland
| Jurisdiction | Scotland |
| Judgment Date | 18 October 1913 |
| Date | 18 October 1913 |
| Docket Number | No. 4. |
| Court | Court of Session |
Lord Kinnear, Lord Johnston, Lord Mackenzie.
InsuranceNational InsuranceEmploymentContract of serviceChurchAssistant ministersStudent missionariesLay missionariesMaster and servantNational Insurance Act, 1911 (1 and 2 Geo. V. cap. 55), secs. 1 (1) and (2), and First Schedule, Part I. (a).
The National Insurance Act, 1911, enacts, Part I., section 1 (1) and (2), and First Schedule, Part I. (a), that persons employed within the meaning of the Act shall include all persons who are engaged in any employment in the United Kingdom under any contract of service.
Held that,in the Church of Scotland and in the United Free Church of Scotland,(1) assistant ministers were not employed persons within the meaning of the Act, in respect that they were persons holding an ecclesiastical office, who performed the duties of that office subject to the laws of the Church and not subject to the control and direction of a master under a contract of service; (2) student missionaries were not employed persons, in respect that their services were rendered as an incident in the course of their studies and not as work done under a contract of service; (3) lay missionaries, who held no ecclesiastical status, and were appointed by, and subject to the control of, a minister or a kirk-session or a committee, were employed persons within the meaning of the Act.
On 30th January 1913 the Scottish Insurance Commissioners, established under the National Insurance Act, 1911, presented a petition, in accordance with the provisions of section 66 (1) (iii.) thereof, for the decision by the Court of a question which had arisen under the Act.
The petition, after quoting the sections of the Act affecting the question,* proceeded as follows:A question has arisen as to
whether the classes of employment of (a) assistants to ministers of the Church of Scotland, (b) assistants to ministers of the United Free Church of Scotland, (c) lay missionaries of the Church of Scotland, (d) student missionaries of the Church of Scotland, (e) lay missionaries of the United Free Church of Scotland, and (f) student missionaries of the United Free Church of Scotland, are employments within the meaning of Part I. of the Act.
On 9th July 1913 answers were lodged by the Reverend David Paul, LL.D., Clerk to the General Assembly of the Church of Scotland, and the Reverend Archibald Henderson, D.D., Clerk to the General Assembly of the United Free Church of Scotland. A joint minute for the parties was lodged on the same date, in which the material facts relative to the classes of employment referred to in the petition were stated as follows:
(a) Employment of Assistants to Ministers of the Church of Scotland.
Assistants to ministers of the Church of Scotland must be licentiates or probationersthose terms being synonymousof the Church, no one being eligible unless he has received a licence from a presbytery. This licence is granted by the presbytery within whose bounds a candidate for licence resides, and is conferred only after the presbytery is satisfied that the candidate has attended the prescribed course of study at a university and that he possesses qualifications suitable for the ministry, and also after he has answered the questions appointed by Acts of Assembly 1889, XVII., and 1911, VIII., and subscribed the formula prescribed by Act of Assembly, 1910, XIII. The said licence bears that the presbytery license the saidto preach the Gospel of Christ and exercise his gifts as a probationer for the holy ministry. After being licensed the licentiate, if he removes his residence from the bounds of the licensing presbytery, must report himself to the presbytery to which he has changed his residence and must produce to it his certificate of licence and a certificate of conduct, and that presbytery is required to supervise his conduct while within its bounds.
By virtue of his licence a licentiate is authorised and entitled to discharge all the duties of an ordained minister except that he cannot dispense the sacraments or solemnise marriage and cannot act as a moderator or member of a church court. He holds a status recognised by the Church.
Assistants to ministers of the Church of Scotland are appointed by the kirk-session, or occasionally by the minister of the parish. Their duties are to assist the minister in the work of the church and parish. That work includes the conduct of religious services, superintendence of the Sunday schools and teaching of Bible classes, visitation of the sick and the poor, and general parochial work. The assistant is not subject to ecclesiastical censure or discipline in any matter at the hands of the minister or kirk-session. As regards the matter and manner of his preaching and conduct of worship, the assistant is subject to the supervision of, and answerable to, the presbytery, and is not under the control of the minister of the charge except that the minister may exclude him from the pulpit, and that he may be dismissed or his engagement may be terminated either by the minister or the kirk-session according as he has been appointed by the one or the other. In other matters the assistant receives his orders or directions from the minister of the church who is entitled to control him in the exercise of his duties. The assistant is, however, subject, like the minister, to the jurisdiction of the presbytery, who are entitled also to control him in regard to the general manner in which he discharges the duties imposed upon him by the minister.
By Act of Assembly, 1888, XIV., it is required that (in addition to the licentiate reporting himself to the presbytery within whose bounds he comes) the appointment of an assistant must be formally notified by the minister of the charge to the presbytery having jurisdiction over the charge, with a view to the assistant being recognised as such and accounted part of the church agencies within the presbytery. The termination of the assistantship must be similarly notified. If the assistant's licence were temporarily or permanently withdrawn by the presbytery, his appointment as assistant would necessarily be terminated.
The licentiates who become assistants do so in preparation for the ministry and with the view in every case of becoming ordained ministers. Their appointment is of a temporary nature.
There are no general regulations of the Church applicable to the appointment of assistants to ministers, the term and conditions of their appointment being settled in the general case by the kirk-session and sometimes by the minister. They are required to devote their whole time to the duties of their office. Their remuneration consists of a fixed salary; and this salary is usually paid out of the congregational funds of the church to which they are attached. In the case of all the assistants to ministers to whom this petition relates their rate of remuneration does not exceed in value 160 a year.
(b) Employment of Assistants to Ministers of the United Free Church of Scotland.
Assistants to ministers of the United Free Church must be licentiates, no one being eligible unless he has received a licence from a presbytery. The effect of a licence in the United Free Church is the same quoad that Church as that of a licence in the Church of Scotland, and the operative terms of the licence granted by a presbytery of the United Free Church are as quoted in paragraph (a) supra. Prior to the granting of a licence the presbytery must be satisfied that the candidate has gone through the required course of study at a university and at a Divinity hall, and also by trials and examinations that the candidate is a suitable person for receiving a licence; and the candidate is required to answer the questions prescribed by and sign the formula laid down in Act II. of the Assembly of the United Free Church of 1900. The clerk of the presbytery furnishes the licentiate with a copy of the licence, and must send the name and address of the licentiate to the clerk of the committee of the General Assembly on the Distribution of Probationers, or in the case of Gaelic-speaking licentiates, to the Committee of the General Assembly on the Highlands and Islands. The licentiate remains under the jurisdiction of the licensing presbytery, so far as regards his character and doctrine, so long as he is resident within its bounds, and on removing to another presbytery he is required to present to it an extract of his licence and a certificate of character from his former presbytery. He then becomes subject to the jurisdiction of the presbytery to which he has removed.
The assistants are appointed by the minister or kirk-session of the charge. The duties of an assistant, and the terms on which he holds the appointment, are the same as in the case of an assistant in the Church of Scotland; but as regards the manner in which he discharges his clerical duties, he is under the direction and supervision of the minister alone. Their engagement can be terminated by the kirk-session, but in matters of discipline they are subject to the presbytery under whose jurisdiction they are. There is no definite period of engagement; but as a general rule a month's notice of termination of the employment may be given on either side. The appointment is usually made by a formal minute of...
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