Implications of the Judicial Review

Implications of the Judicial Review into Church Closures in Scotland

As part of heightened lockdown restrictions at the start of 2021, Scottish churches (along with all other Places of Worship) were ordered to close by the Scottish Government. This was in contrast to other parts of the United Kingdom where churches were nonetheless allowed to continue their public services.

Concerned that this Scottish close-down of churches was an unjustified use of State powers, a group of 27 pastors challenged the legality of this measure by raising a Judicial Review at the Court of Session in Edinburgh. The arguments were heard over a two day hearing on 11 and 12 March. Lord Braid has now issued his judgement on the case.

Having followed the arguments in the Court of Session on Thursday and Friday March 11-12, I was impressed with the case made by the lawyers of Christian Concern (representing the pastors). I was also surprised at how the Government lawyers failed to adequately respond to their arguments and the questions put to them by Lord Braid.

Nevertheless, it’s possible to win the argument in court and still lose if there are other factors that influence the case. We are after all, in the midst of a global pandemic in which Governments have imposed restrictions on a wide swathe of human rights in order to safeguard public health. In many ways the Government lawyers were arguing: trust us, we were making hard political judgements for the best of motives.

Disproportionate interference

However, Lord Braid’s judgement concluded that the closure of churches for public worship and individual prayer was indeed a disproportionate interference with human rights - specifically the “freedom of thought, conscience and religion”1.

“For all these reasons I have concluded that the Regulations do constitute a disproportionate interference with the Article 9 right … [and] constitutional rights. It is important to understand what I have not decided as what I have. I have not decided that all churches must immediately open or that it is safe for them to do so, or even that no restrictions at all are justified”.

Lord Braid noted, that although Article 9(2) does allow the State to interfere with these rights in the context of a public health emergency, the Court’s decision was that the State had other less disproportionate options available to it rather than a full shut down of churches. Additionally, there was insufficient evidence that churches were leading vectors for spreading the infection to justify that imposition.

Furthermore, Lord Braid also accepted the argument that the regulations disproportionately interfered with the constitutional settlement that guarantees the independence of the church in Scotland from state interference in spiritual matters.

What does this mean for churches in Scotland?

As Lord Braid explained, “the outcome of this case will have little immediate practical effect in the short term” – this is because churches were already allowed to reopen from Friday March 26th for public worship and individual prayer.

Other, more recently introduced, amendments to the regulations and ‘the Roadmap’ also include ways in which the Government have already begun to remedy this breach of the freedom of religion. So currently Scottish churches can look forward to reopening this weekend, with the possibility of the 50 cap on attendances being further relaxed in the coming weeks.

The judgement does not change the guidance against congregational singing at this time. Lord Braid noted the church leaders concession that they would be willing to abide by Government advice not to sing, even though that was arguably an interference with the practice of their religion and worship.

Church & State: distinctions & overlap

It is important not to exaggerate the implications of this long and nuanced court judgement.

It is significant, but it’s also finely balanced. For example, the court recognises that the constitution of Scotland enshrines the distinction between the two kingdoms (civil and spiritual government) and that the State should not intrude into the rule, belief, and practice of the spiritual kingdom.

Nevertheless, there are civil matters concerning the outward running of the church, and the involvement of Christian congregants in the rest of society, over which the State does have a legitimate interest in regulating – e.g. regulations for the mitigation of the risks around Coronavirus.

The Court noted:

“If the state legislated for no good reason to order the closure of every church in the land, that would clearly be unconstitutional. It is arguable that the state has not merely the power to act to preserve public health and life, but that it has a constitutional duty to do so. In this case, that duty has come into conflict with its duty not to interfere in matters which are the sole province of the church. The petitioners argue that there are no circumstances in which the state’s powers could trump their right of worship, but that is not an attractive outcome… Accordingly, any interference in worship by the state will be lawful if (and only if) it is a proportionate and necessary response to a civil matter in which the state is entitled to legislate”.

Regardless of the different persuasions about the necessity of lockdown and the severity of the virus, the Court recognises that Coronavirus can cause serious illness and death, and the State does have a duty to act in such circumstances, and that churches need to respond to that responsibly.

Not a social club

It was also encouraging to read the Court recognising that attending church is not the same as attending a social club, and it is not just another non-essential social interaction:

“I accept from these that central to the Christian faith practised by the petitioners is the importance of physically congregating to undertake corporate worship, communion, baptism, and congregational ministering of spiritual gifts…. I accept the evidence of the petitioners and of the additional party that worship in their faiths cannot properly take place on-line, by means of internet platforms… I have already commented on virtual ‘worship’. It can be seen only as an alternative to, not a substitute for, worship. While some people may derive some benefit from being able to observe on-line services, it is undeniable that certain aspects of certain faiths simply cannot take place, at all, under the current legislative regime: in particular, communion, baptism and confession to name but three. It is impossible to measure the effect of those restrictions on those who hold religious beliefs. It goes beyond mere loss of companionship and an inability to attend a lunch club”

In conclusion, it is significant that the Court has recognised there have been principles of religious freedom at stake in the past two national lockdowns, and these need to be considered in any future potential lockdown situations. It has clarified the constitutional and human rights situation in a welcome way – thus setting a precedent for future discussions about the independence of churches and the Christian faith from State control.

Addendum - 26/3/21

It’s worth having on record for future cases that in view of the General Assembly Act 1592, Claim of Right 1689, Act of Union 1707 and Church of Scotland Act 1920, that the church has its independence from state interference guaranteed in matters of its worship, doctrine, governance and discipline. The court says these rights aren't absolute (and the churches conceded that point in a few specifics), but the state can only interfere if it is acting on the basis of a legitimate civil purpose (eg public health), and if it's interference is necessary and proportionate.

That will be significant when the new Hate Crime & Public Order (Scotland) Act gets its freedom of speech on grounds of religion clause tested and should they seek to legislate against "conversion therapy" (which could outlaw any teaching, pastoral care or prayer which encourages someone to not trust or follow their own sexual desires or gender identity). As many others have said: the wisdom in fighting this court action maybe questionable in current circumstances - but in God's providence it will be very valuable for the real challenges we're facing next for gospel ministry in Scotland!

1 Under Article 9 of the European Convention on Human Rights, incorporated into British law by the Human Rights Act 1998, and binding upon the Scottish government by the Scotland Act 1998.

Photo of Parliament House by Maccoinnich on Wikimedia (CC BY-SA 3.0).

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