Introduction

In the landmark case of Reverend Dr. William J.U. Philip and Others for Judicial Review of the Closure of Places of Worship in Scotland ([2021] ScotCS CSOH_32), the Scottish Court of Session addressed the legality of COVID-19 induced closures of places of worship. The petitioners, comprising Reverend Dr. William Philip and 26 other ministers and church leaders from various Protestant denominations, challenged the Scottish Government's decision to enforce the closure of churches in response to the emerging B.1.1.7 variant of COVID-19. The key issues revolved around the constitutional authority of the Scottish Ministers to restrict religious practices and whether such restrictions constituted unjustified infringements of the petitioners' human rights under the European Convention on Human Rights (ECHR), specifically Articles 9 and 11.

Summary of the Judgment

The court, presided over by Lord Braid, meticulously examined the legal frameworks underpinning the Regulations, including the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021. It delved into the historical constitutional separation of church and state in Scotland, highlighting the "doctrine of the twa kingdoms" which delineates distinct spheres for civil and spiritual authorities.

Lord Braid concluded that while the Scottish Ministers possessed the authority to enact public health measures, the blanket closure of places of worship was a disproportionate interference with the petitioners' rights to manifest their religion. The regulations not only restricted public worship but also criminalized attempts to circumvent these restrictions, imposing significant penalties. The court emphasized that less restrictive measures could have been employed without compromising public health objectives, thereby rendering the regulations beyond constitutional competence.

Consequently, the court declared the Regulations unlawful in their entirety concerning the closure and criminalization of worship activities, underscoring the necessity for the Scottish Government to respect constitutional and human rights even amidst public health crises.

Analysis

Precedents Cited

The judgment referenced several pivotal cases that shaped its reasoning:

• Ballantyne v Presbytery of Wigtown [1936] SC 625: Established the church's exclusive jurisdiction over spiritual matters, prohibiting civil interference in ecclesiastical affairs.
• Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73: Differentiated between spiritual and civil matters, noting that employment-related disputes could fall under civil jurisdiction.
• Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39: Discussed the proportionality principle, emphasizing a structured approach to evaluating restrictions on rights.
• Manoussakis v Greece (1997) 23 EHRR 387: Highlighted the strict scrutiny required for restrictions affecting true religious pluralism.
• R (Amicus and others) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin): Addressed the balance between public health measures and religious freedoms.
• International cases from Germany, the United States, South Africa, and others were also referenced to contextualize the judgment within global perspectives on religious freedom during pandemics.

These precedents underscored the inviolability of spiritual autonomy and the necessity of proportionality in any state interference with religious practices.

Legal Reasoning

The court's legal reasoning was bifurcated into constitutional and ECHR issues. Under the constitutional lens, the court reaffirmed the historical doctrine separating church and state, emphasizing that spiritual matters lie solely within the church's jurisdiction. The Scottish Ministers' regulations were deemed an overreach into this sacred domain, lacking constitutional legitimacy.

Regarding the ECHR issue, the court applied the four-stage proportionality test:

• Legitimate Aim: The Regulations aimed to protect public health and preserve life, a recognized legitimate aim under Article 9(2).
• Rational Connection: The measures were rationally connected to the aim, as reducing communal gatherings curbs virus transmission.
• Necessity: The court found that less intrusive measures, such as limiting congregation sizes or enhanced safety protocols, could have sufficed without completely banning public worship.
• Balancing: Weighing the minor impact on religious freedoms against significant public health benefits, the court concluded that the extent of restrictions was disproportionate.

The absence of robust evidence linking worship gatherings to virus spread and the imposition of severe penalties further tilted the balance against the Regulations.

Impact

This judgment sets a critical precedent in balancing public health imperatives with religious freedoms. It delineates clear boundaries for state interventions, ensuring that measures impinging on deeply held religious practices are justified, proportionate, and respect constitutional safeguards. Future public health regulations will now be scrutinized more rigorously to prevent undue encroachments on religious autonomy. Additionally, it reinforces the necessity for governments to explore less restrictive alternatives before imposing broad prohibitions on religious assemblies.

Complex Concepts Simplified

Judicial Review

Judicial review is a legal process where courts examine the actions of public authorities to ensure they comply with the law. In this case, the ministers sought judicial review to challenge the government's closure of churches.

Proportionality Test

The proportionality test is a principle used to assess whether a government action infringes on rights justifiably. It involves four steps: determining if the action serves a legitimate aim, if it is suitable to achieve that aim, if it is necessary without less restrictive options, and if the benefits outweigh the harms.

European Convention on Human Rights (ECHR)

The ECHR is an international treaty protecting human rights and political freedoms in Europe. Articles 9 and 11 protect freedom of religion and assembly, respectively. The Scottish Government's regulations were found to infringe these rights without sufficient justification.

Ultra Vires

"Ultra vires" refers to actions taken by a public authority beyond its legal power or authority. The court declared that the closure regulations were ultra vires as they overstepped constitutional boundaries.

Doctrine of the Twa Kingdoms

A Scottish constitutional principle that separates civil and spiritual authorities, ensuring that the state does not interfere with religious matters. This doctrine was pivotal in the court's decision.

Conclusion

The judgment in Reverend Dr. William Philip and Others for Judicial Review serves as a seminal reference in the intersection of public health and religious freedoms. By affirming the constitutional separation of church and state, and enforcing the proportionality of legal measures, the court underscored the necessity for balanced governance. This decision not only protects the sanctity of religious practices but also ensures that state interventions remain within lawful and ethically justifiable limits. Moving forward, this case will guide both legislative bodies and courts in crafting and evaluating measures that affect fundamental human rights during crises.