Last month, the Scottish Court of Session ruled that the Scottish government’s decision to ban public worship in light of the coronavirus pandemic was both unconstitutional and a disproportionate interference with the Article 9 right to freedom of religion or belief, as protected by the European Convention of Human Rights (ECHR).
Compared to other jurisdictions, the Scottish Government’s recent measures to prevent the spread of COVID-19 have been especially strict. With the arrival of a new and more deadly variant of COVID-19 in late 2020, the Scottish Ministers (the executive) declared a second national lockdown on 5 January 2021. This involved the closure of all hospitality venues and the prohibition of all indoor and outdoor gatherings, allowing citizens to only leave the house for essential purposes such as shopping, exercise, and meeting up with one other person outdoors. Public worship, however, was caught in the crossfire. While in England public worship could continue during their national lockdown, the Scottish Government decided to close Churches on 8th January 2020. The Bishops’ Conference of Scotland condemned the Scottish Government’s decision to close to Churches.
Not very long after these regulations were imposed, two groups (petitioners) sought to challenge the ban of public worship in the courts. The petitioner was a group of protestant clergymen from various confessions and the additional petitioner was a Catholic priest from the Archdiocese of Glasgow, Canon Thomas White. Both parties were invited to present their submissions before the Outer House of the Court of Session on the 11th and 12th March. The decision was handed down on the 24th March, where Lord Braid ruled in favour of the petitioners.
The Case
Philip & Ors v Scottish Ministers[1] was a landmark case, not just because it was the first Human Rights challenge in Scotland brought solely by clergymen, but also because it was the first successful instance of coronavirus litigation in Scotland. Some other attempts had been made by the hospitality sector to challenge the severity of the Scottish Government’s Coronavirus restrictions, but ultimately these failed because the legal arguments were purely technical; relating to distancing, use of masks, transmission rates, R Numbers and so forth. Naturally, one can understand why a judge would be nervous about ruling on technical matters when judges are certainly no experts in public health.
The curious case of the Churches, however, was not really a technical question at all. Although the Church’s impeccable efforts to mitigate the spread of COVID-19 were certainly a crucial part of the debate, this case differentiated from any previous coronavirus litigation because it hinged upon questions about fundamental rights to freedom of religion—and the freedom of the Church.
Lord Braid considered two issues before the court: 1) a constitutional issue and; 2) an ECHR issue. The Constitutional issue was a question concerning the two powers, spiritual and temporal. Lord Braid cited the various sources in Scots Law which granted the Church of Scotland (the protestant ‘Kirk) a certain independence from the state, such as the General Assembly Act 1592 which ensured that the independence of the Kirk was “embedded […] as public theology within Scots Law”.[2] The independence of the Kirk is also guaranteed in the 1707 Act of Union, which is perhaps why the Scottish Government’s regulations can be subject to constitutionality review. However, more recent legislation was the crux of the constitutional part of the decision, namely the Church of Scotland Act 1921. This Act did not legislate for the Kirk, but was “declaratory” in ensuring the Kirk’s independence from the state to exclusively deal with “matters spiritual”. Lord Braid cited Article IV of the Declaratory Articles appended to this Act, which declared that the Church alone has “the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government and discipline in the church”, and furthermore that the state has no “right of interference with the proceedings or judgments of the church within the sphere of its spiritual government and jurisdiction”. Building upon this, the Protestant petitioners had argued that Churches had to be completely immune from state interference in matters spiritual, even where it concerned matters of public health. The Catholic petitioner, however, accepted that the spiritual powers owed deference to the temporal in matters that were properly the ambit of the temporal powers (public health, construction regulations, safeguarding etc).[3]
Ultimately, this led Lord Braid to conclude that there was a ‘constitutional right’ to worship in Scots Law, given the historical independence of the Kirk from the State. However, he was not willing to accept, as per the Protestant petitioners’ submission, that this right was completely unchecked. He decided that this ‘constitutional right’ to worship was to be balanced with the proportionality tests that already exist in UK law.
The ECHR issue was a relatively through application of the proportionality test set out by Lord Reed in Bank Mellat v Her Majesty’s Treasury,[4] with some departure from the ECHR jurisprudence on proportionality. Lord Braid set out the three stage test in assessing proportionality under UK Law. With regards to Article 9, interference or limitation upon rights must: 1) be prescribed by law; 2) pursue a legitimate aim, and; 3) be necessary in a democratic society for the protection of public health.[5] Lord Braid was satisfied that the first two conditions had been fulfilled for these restrictions on worship to be proportionate, but he did not believe that the third condition had been satisfied in this case. Lord Braid gave various justifications for rejecting the third condition, but perhaps the chief among them was the fact that the Scottish Government had permitted indoor gatherings for remote jury centres due to the guarantees made under Article 6 and the right to fair trial, meanwhile forbidding the petitioners to gather indoors for religious service in pursuance of their Article 9 right to manifest religious beliefs. Counsel for the Scottish Government was unable to answer for such an obvious inconsistency in the regulations.
On 24th March 2021, Lord Braid issued a declarator deeming the regulations unlawful with immediate effect, meaning that some Churches were open for Holy Mass that very evening. Deo gratias et Mariae.
‘Gelasian Dualism’ and the Scots Constitution
For the classical jurist, the real point of interest in this case was the petitioner’s citation of Pope St Gelasius I’s Famuli Vestrae Pietatis—a text that is often referenced by followers of this blog and The Josias.[6] While counsel for the Protestant petitioners focused more on a legal aspect as regards the Church of Scotland Act 1921, counsel for the Catholic petitioner dared to go even further back, arguing that the Scots Constitution is founded upon a presumption of “Gelasian Dualism”; a subordination of the temporal powers to the spiritual powers (although the Catholic model is better called “Dyarchy”, since it concerns two princes, Pope and King). Counsel for the additional [Catholic] petitioners also argued before the court that this Gelasian model was ultimately endorsed by the Calvinist religion which would later become confessional in Scotland.
From a quick glance at the history books, it is obviously true that the Scots Constitution is Gelasian in its nature and origin. In the Declaration of Arbroath, one sees that Scotland’s very nationhood was contingent on an appeal to the spiritual powers. The document ends with the temporal powers declaring total obedience to the determinations of the Holy See, no matter whether or not the Pope decided to establish Scotland as a nation:
Therefore we are and will be ready, and in these [letters] we are bound, to obey you as his vicar in all things as obedient sons; to Him as supreme king and judge we commit the maintenance of our cause, casting our cares upon Him and firmly trusting that He will inspire courage in us and bring our enemies to nothing.
Although the Declaration is not really cited as an authoritative legal document, it is a fundamental constitutional document, insofar as it defines the make-up of our nation. And it is not the only source we can point to which evidences the Scottish Gelasian model; it is probably one of a thousand of sources. Gelasian Dyarchy is permeated throughout Scottish constitutional history, as evidenced by later (pre-reformation) parliamentary legislation which guarantees that “the holy church and its ministers enjoy their old privileges and freedoms”[7] and elsewhere that “the freedom of the holy church be kept through all the realm”.[8] Counsel for the additional petitioners argued before the court that this Gelasian Dyarchy was not abandoned by the Scottish Reformation—rather, the reformers affirmed it. John Calvin referred to the division of power in his institutes as the “Two Kingdoms”, which James Melville applies to Scotland poetically:
And, thairfoir, Sir, as divers tymes befor, sa now again, I mon [must] tell you, thair is twa kings and twa kingdoms in Scotland. Thair is Chryst Jesus the King, and his kingdome the Kirk, whase subject King James the saxt is, and of whase kingdome nocht a king, nor a lord, nor a heid, bot a member![9]
Indeed, this is a reductionist view of both the papacy and King of Scots; we uphold the former to be the office of the vicar of Christ, and we uphold the latter to the be an office that has curacy of the Church temporal.[10] In fact, the Calvinist understanding of these matters differs significantly in nature from the Catholic understanding, as Pater Edmund Waldstein eloquently explains here. The Calvinist understanding therefore erodes the order and connection between these ‘twa kingdoms’ set forth in ‘Gelasian’ model, which understands the temporal and the spiritual powers to be integral. (The Gelasian model also explicitly concerns the temporal power of the papacy.) Therefore, the idea that nothing changed after the reformation is a bit ill-considered.
However, Counsel would be correct to some extent that the pre-reformation Dyarchical model was continued by the Kirk in Scotland. There existed, even after the reformation, a subordination of the temporal to the spiritual in the realm, where the spiritual could interfere and influence the temporal, but the temporal could not interfere in strictly spiritual matters. As Counsel also rightly noted, this continuation of the Dyarchical model exposes a chasm between the Scots and English Constitution—a chasm which was not bridged in any way by the 1707 Act of Union. The King of England, in declaring himself the Head of the Church, abolished any notion of Dyarchy by vesting both the spiritual and temporal power in one man. The Scots Constitution, despite all of our unfortunate reformations, maintained that the temporal powers were still to be subject to the higher and independent spiritual powers, albeit stripped of any fanciful popery. Some form of Dyarchy was therefore retained in Scotland, albeit weaker.
One might therefore muse that there is a ius non scriptum, that is, an unwritten fundamental right,[11] in the law of Scotland, which denotes that the spiritual power remains independent, as a higher juridical order, which co-operates with, guides and protects the temporal order. This case, by providence, has solidified that ius non scriptum a little more, even amid the secularism of the modern era.
An Exercise of Judicial Restraint
It is not often that one would describe a successful judicial review challenge as ‘judicial restraint’, but this could be a first. If we understand the spiritual and the temporal powers to exist as independent juridical orders and perfect societies, then surely this decision is—from a Catholic perspective—an instance where the temporal power has restrained itself from an unjust interference into the spiritual power.
As a preamble, it is also worth noting that the ‘constitutional right’ to worship referred to in Lord Braid’s decision was never defined as an individual right. In fact, every reference to he makes to this ‘constitutional right’ as regards the 1921 Act concerns “the Church alone” having rights. Therefore, instead of viewing this judgment as having created an individual subjective right to freedom of religion, the ‘constitutional issue’ could be better viewed as a respect for the independent juridical orders of Church and State, subject to some consideration for the common good, through the test of proportionality. This new ‘constitutional right’ is therefore still a subjective right of sorts, because it is contingent upon some respect for the common good, but it also pertains to objective right insofar as it gives a great amount of deference to the Church and her freedom to operate as a societas perfecta.[12] [13]
This certainly rings well with some recent Scottish legal history. In McDonald v Burns, where five former extern nuns petitioned the Court of Session to overturn their dismissal from the cloister, the court declared that the civil courts are obligated to respect the determinations of ecclesiastical authorities, unless there are some grave civil rights considerations to be considered:
But the limits within which the Courts will interfere with the judgments of ecclesiastical bodies are strictly defined, and should not be incautiously extended. Where civil rights are concerned, appeal may be made to the Courts of law for their protection […] but the mere fact that a civil right is affected by itself forms no justification for interference by the Court, for civil consequences may often result from decisions of ecclesiastical Courts in matters that lie properly within their own jurisdiction.[14]
Thus, it is evident that the margin of appreciation for the state was already very limited as regards interference with the spiritual power—even powers that were not strictly those afforded to the Kirk. The problem with Philip & Ors was that the state had very good reasons to propose some interference with the Church: stopping the spread of a very deadly virus. This case was an unusual situation where the Church’s exclusive jurisdiction over the sacraments and worship were, for the first time, directly impacting the temporal sphere, since the gathering of the masses for the Holy Mass could very easily have endangered the temporal common good of society through transmission of the disease.
To that end, it must be remembered that Lord Braid’s decision was very circumstantial, and ultimately it was a determination of the common good between the good of public health and the good of religious worship. The government made absolutely no attempt to negotiate with the Churches about the various mitigation measures which could be taken to prevent the spread of COVID-19. Instead, the government treated them not as a higher juridical order but as yet another sector to be regulated. The Churches also had very strict COVID-19 regulations in place, meaning that the risk of transmission was incredibly low. And, perhaps most importantly, the government had actually criminalised religious worship—with Mass attendees facing fines of £10,000 and threats of prosecution. Given all of these factors, Lord Braid decided that the regulations were not proportionate and were therefore unconstitutional.
But even setting aside the circumstantial nature of the decision, there is much to be grateful for with this judgment. A judicial custom[15] has now been established which denotes that, when the temporal and spiritual powers should directly clash, a great amount of deference is to be given to the ‘constitutional rights’ of the spiritual power—and even the turmoil of a global pandemic was not sufficient to completely restrict that ‘constitutional right’.
Crucially, this decision was not solely determined in the name of freedom of religion, but also in the name of a unique kind of judicial restraint, insofar as the temporal powers were restrained from interfering with the spiritual power. As for Scotland, if the Scottish Government had acted in accordance with our Dyarchical Scots Constitution, there would have been greater respect for the Church as a higher and independent juridical order, and there would have been a solution to this debacle without need for costly, lengthy and hostile litigation.
What seems obvious here is that the spiritual and temporal powers would have worked better all along if the government had treated the Church as its partner—as another societas perfecta—in preserving the spiritual and physical health of society. The Scottish Government’s disregard for the Church is a paradigm example of why the separation of Church and state is so obviously an error.[16] The State and the Church must work together, in concord, integrally, as two perfect societies in pursuit of one aim: the spiritual and temporal common good of the entire nation. This is a matter of Juridical Theology that must crystallise within the Church if we are to make any impactful advance into political life.
The final word can be left to the wisdom of Pope St Paul VI:
It cannot be disputed that the duties of Church and State belong to different orders. Church and state are in their own right perfect societies. That means: They have their own legal system and all necessary resources. They are also, within their respective jurisdictions entitled to apply their own laws. On the other hand, it must not be overlooked that they are both aiming at a similar welfare, namely that the people of God should obtain eternal salvation.[17]
—Jamie McGowan
- [2021] CSOH 32. Available here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csoh032.pdf?sfvrsn=0 ↑
- Ibid at para 66. ↑
- This was the view taken by the Holy See during the pandemic. ↑
- (No 2) [2013] UKSC 39. ↑
- Article 9(2) ECHR allows for limitations on the right to manifest religion where it is “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” ↑
- A thorough analysis of the text of Famuli Vestrae Pietatis can be found on The Josias’ blog, here: https://thejosias.com/2020/03/30/famuli-vestrae-pietatis/ ↑
- Records of the Parliament of Scotland, 1424/2 ↑
- RPS, 1425/3/2. ↑
- James Melville, Autobiography and Diary, p. 369-371 ↑
- As Hugh of St. Victor says: “Universitas Ecclesiae duos ordines complectitur, laicos et clericos, quasi duo latera corporis unius.” The temporal society, governed by a ruler, is still to be understood as ‘the Church’, and the attitude of a good ruler must be one of a shepherd toward them. ↑
- A Ius non Scriptum is an unwritten fundamental law, similar to what we might understand in Diceyan terms as a “convention”. However, it is not to be likened so much to a convention, since it is justiciable under Scots Law, according to Stair. ↑
- Societas perfecta (Perfect Society) is the term used by Aristotle and Aquinas to denote a society that is ‘complete’ or whole, without further appeal to another juridical body. In modern parlance, the concept might be likened to the concept of sovereignty (although the concepts are different). ↑
- I will caveat this paragraph by noting that the judgment is incredibly vague about who this constitutional right actually belongs to—this is purely my interpretation, according to what I think befits natural justice. ↑
- [1940] SC 376 ↑
- Judicial custom is what Stair refers to as the non-binding nature of Scottish judgments. Whereas in England, stare decisis ensures that every judicial decision is binding, Stair argued that in Scotland judicial decisions have an advisory or customary effect. ↑
- “From this teaching, as from its source and principle, flows that fatal principle of the separation of Church and State; whereas it is, on the contrary, clear that the two powers, though dissimilar in functions and unequal in degree, ought nevertheless to live in concord, by harmony in their action and the faithful discharge of their respective duties.” (Libertas praestantissimum, Pope Leo XIII) Available here: http://www.vatican.va/content/leo-xiii/la/encyclicals/documents/hf_l-xiii_enc_20061888_libertas.html ↑
- Sollicitudo omnium Ecclesiarum. Translated by Author. Available here: http://www.vatican.va/content/paul-vi/la/motu_proprio/documents/hf_p-vi_motu-proprio_19690624_sollicitudo-omnium-ecclesiarum.html ↑
