Walsh v Lord Advocate

The Appellant was born on the 1st November, 1934. He holds the offices of "pioneer publisher" and "congregation servant" in the body now known as Jehovah's Witnesses. Shortly before the 10th January, 1953, the Appellant had some discussion with officials of the Ministry of Labour and National Service as to his liability to be called upon to serve in the armed forces of the Crown under the National Service Act, 1948. On the 10th January, 1953, the Ministry sent him a letter in the following terms:—

"Consideration has been given to your claim to non-liability under the above-named Acts but this Department is of the view that a member of the Society of Jehovah's Witnesses cannot be regarded as coming within the definition of a regular minister of a religious denomination for the purposes of exemption from liability under Paragraph 2 of the First Schedule of the National Service Act, 1948. I have, therefore, been instructed to inform you of this decision, and request you to attend at this office as soon as possible in order that your registration may be effected. Should you so desire, you can register as a conscientious objector."

The result of this letter was that the Appellant on the 15th January, 1953, issued a summons asking:

"1. For declarator ( a) that the body of Christian people known as Jehovah's Witnesses forms and is a religious denomination for the purposes of paragraph 2 of the First Schedule to the National Service Act 1948, and ( b) that the pursuer, by virtue of his appointments as pioneer publisher and company servant of the said body is a regular minister of that religious denomination.

2. For an order, in terms of Section 21 (1) ( a) of the Crown Proceedings Act 1947, declaring that the pursuer not being a person subject to registration for the purposes of Section 8 (1) of the National Service Act 1948, the Minister of Labour and National Service has no power to serve or cause to be served upon the pursuer a notice requiring him to submit himself for medical examination."

The office referred to in the summons as "company servant" is now known as "congregation servant".

The relevant provisions of the National Service Act, 1948, are as follows:—

"1. (1) Subject to the provisions of this Part of this Act, every male British subject ordinarily resident in Great Britain who has attained the age of eighteen years and has not attained the age of twenty-six years and is not a person mentioned in the First Schedule to this Act shall be liable to be called upon to serve in the armed forces of the Crown

. . . . . .

6. (1) The Minister may from time to time by public notice require male persons who have attained such age as may be specified in the notice (not being less than seventeen years and eight months), being persons who if they had attained the age of eighteen would have become liable under this Part of this Act to be called up for service in the armed forces of the Crown, to be registered for such service under this Part of this Act.

. . . . . .

8. (1) The Minister may from time to time cause to be served on any person subject to registration a written notice in the prescribed form requiring that person to submit himself to medical examination by a medical board at such place and time as may be specified in the notice;

. . . . . .

First Schedule. Persons not liable to be called up for service.

. . . . . .

2. A man in holy orders or a regular minister of any religious denomination."

When the case was heard by the Lord Ordinary (Lord Strachan) there were two issues to be determined—( a) Was the body of persons known as Jehovah's Witnesses a "religious denomination" within the meaning of the Act of 1948? ( b) Was the Appellant a "regular minister of a religious denomination" within the meaning of the same Act?

"A very great deal of evidence was adduced for the pursuer, the shorthand notes extending to no less than 762 pages. In my opinion the relevant evidence could have been stated within much shorter compass, but as this is a very unusual case, and is indeed a test case from the point of view of Jehovah's Witnesses, and as three of their headquarters staff came specially from America to give evidence, I took the view that it was desirable to give them the fullest opportunity of putting forward their case and I was not disposed to curtail the evidence which they offered. I had in mind also that this is really the first opportunity in this country for an enquiry into the relevant facts in a civil process. A similar question has been raised in earlier cases but it has always previously been initiated in a summary prosecution with the consequent limitations upon a right of appeal."

In his judgment the Lord Ordinary described the history, beliefs and organisation of the body now known as Jehovah's Witnesses, stated the facts relating to the Appellant and to the offices which he holds, and arrived at the conclusion that Jehovah's Witnesses were a religious denomination within the meaning of paragraph 2 of the First Schedule to the Act of 1948. As to the Appellant the Lord Ordinary expressed his final views as follows:—

"I hold that the pursuer is not a regular minister of a religious denomination by virtue of his appointment as a congregation servant, and that he is not such a minister by virtue of his appointment as a pioneer publisher. I am also of opinion that the combination of both appointments does not make him a regular minister because, as I have indicated, it seems to me that the pioneer appointment really adds nothing material which could bring him within the category of a minister. The pursuer's case therefore fails."

The Lord Ordinary therefore granted decree of declaration in terms of Conclusion 1 ( a) of the Summons but assoilzied the Respondent from Conclusions 1 ( b) and 2.

From this decision the Appellant appealed, and at the hearing of the appeal by the Second Division the Respondent did not seek to challenge the finding of the Lord Ordinary that the body known as Jehovah's Witnesses was a religious denomination. Counsel for the Respondent, however, intimated to the Court that this concession was only made for the purposes of the present case. The same attitude was adopted by the Lord Advocate in this House, and in his written Case the Respondent stated that he desired to reserve his right, if so advised, to maintain in a subsequent case that Jehovah's Witnesses are not a religious denomination and, in any event, are not such within the meaning of the Act of 1948.

Thus the only question which arose for decision in the Second Division and now arises for decision in your Lordships' House is whether the Appellant was, in January, 1953, "a regular minister of any religious denomination" within the meaning of the Act of 1948.

The three learned judges of the Second Division—the Lord Justice Clerk. Lord Patrick and Lord Mackintosh—concurred in answering this question in the negative and dismissed the appeal.

My Lords, notwithstanding a very able argument by Sir Lynn Ungoed-Thomas for the Appellant, I find myself in agreement with each one of the three very powerful judgments delivered by the Second Division, and for this reason I...