As the coronavirus pandemic stretches into its second year, the tension between freedom of religion and public health measures has become increasingly acute. In Scotland, the issue has come to the fore with the decision of the Outer House of the Court of Session in Philip. In that case, Lord Braid found that Scottish regulations that temporarily closed places of worship altogether (forcing worship to occur online) were both “unconstitutional” due to the independence of the church and incompatible with Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion. The Court did not issue a remedy, but following the decision, the Scottish Government announced that places of worship were allowed to open for communal worship and individual prayer, with a cap of 50 people. This brought forward, by two days, an already planned loosening of restrictions.

The challenged regulations, the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021(“the Regulations”), were made by the Scottish Government pursuant to s 49 of the Coronavirus Act 2020on 6 January 2021, entering into force on 8 January 2021. Regulation 4(b) inserted paragraph 1A into schedule 5 of the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020; this provided that in level 4 areas a person who is responsible for a place of worship must close that place of worship, with limited exemptions not covering public worship. Regulations 4(e)(i) and (f)(i) also removed exemptions on attending places of worship, in effect prohibiting public worship (indoors or outdoors). Since 5 January 2021, every area in mainland Scotland has been a level 4 area.

The Regulations present a difficult issue for courts seeking to protect freedom of religion – it is a drastic restriction to close all places of worship throughout mainland Scotland. These measures are more draconian than the occupancy limits considered by the US Supreme Court in Roman Catholic Diocese of Brooklyn v Cuomo and discussed in a previous post, though they are similar to the ban on indoor worship more recently considered by that Court in South Bay United Pentecostal v Newsom. The Court of Session’s opinion is a careful response to this issue, but there are two difficulties with it. First, the Court’s reasoning about the independence of the church in Scotland seems to apply an incorrect test. Second, there is an alternative view to its analysis under Article 9: that the exigencies of the pandemic – and the importance of protecting people’s lives – offer a justification even for drastic restrictions, provided that they are on a temporary, emergency basis.

Dividing line between church and state

The Court explained that in Scotland, there is a dividing line between the church and the state: “the church has exclusive jurisdiction in matters spiritual, and the state has exclusive jurisdiction in matters civil” (at [73]). Here, the issue was whether the Regulations closing places of worship related to spiritual or civil matters. The Court concluded that proportionality should be used as the test for deciding this, stating at [79] that “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” – the same question, the Court said, as that to be addressed under the Convention. Because the Court went on to find that the Regulations were incompatible with Article 9 of the Convention, they were also “a disproportionate interference with … constitutional rights” (at [128]).

According to the Court at [82], the “constitutional argument add[ed] nothing” because it required a proportionality assessment; thus, it mirrored the Article 9analysis. But that approach seems surprising, and the better view may be that this claim was in fact weaker than that under Article 9. The Court set out at [66] and [73] that the General Assembly Act 1592embedded the distinct roles of church and state, and the separation was affirmed by, among other legislation, the Acts of Union of the Scottish and Westminster Parliaments, and the Church of Scotland Act 1921. It seems unusual to find that a test of proportionality, originally imported from the Continent, that postdates the statutes in question by many decades or centuries is the correct test to apply pursuant to those statutes.

It also seems unusual to apply proportionality to an issue that is a narrow one of categorization. Section 3 of the Church of Scotland Act 1921 provides that: “Subject to the recognition of the matters dealt with in the Declaratory Articles as matters spiritual, nothing in this Act contained shall affect or prejudice the jurisdiction of the civil courts in relation to any matter of a civil nature”. As stated in Article IV of the Declaratory Articles,the Church 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”.The civil authority does not have “any right of interference with the proceedings or judgments of the Church within the sphere of its spiritual government and jurisdiction”.It therefore seems that a law has to be one or the other – related to civil matters or related to spiritual matters.

That is consistent with the approach of the House of Lords in Percy v Board of National Mission of the Church of Scotland. One issue in that case was whether a discrimination claim brought by a former minister of the Church of Scotland constituted “matters spiritual” within s 3. The majority held it did not. Significantly, no member of the House of Lords considered proportionality in order to determine this question. And indeed, proportionality does not seem to be appropriate because the question requires categorizing – of a matter as either spiritual and civil – rather than justification of a burden as in the case of Convention rights. As Lord Hope put it at [133], there is a “dividing line between matters civil and matters spiritual”. Proportionality is not usually a test for classifying on either side of a dividing line. In this case, the temporary closing of places of worship on public health grounds, although drastic, appears unlikely to be characterized as a spiritual matter. Unlike, for example, closing places of worship on some other grounds – such as disagreement with teaching – the measures do not seem to relate at all to “matters of doctrine, worship, government, and discipline in the Church”.

A borderline question under Article 9

The Court’s decision under Article 9 appears to be on surer footing. Since the restrictions were prescribed by law and pursued a legitimate aim (the protection of public health and preservation of life), the key question was whether they were necessary in a democratic society for the protection of public health. This entailed a proportionality assessment following the four-stage test in Bank Mellat v Her Majesty’s Treasury (No 2). The Regulations passed the first two stages: the aim being pursued was sufficiently important to justify limitation of the right, and there was a rational connection between the Regulations and the aim, since “the closure of places of worship combined with the stay at home requirement will inevitably reduce human interaction, which is a known means of transmission” (at [103]).

However, considering the third stage, the Court found there were less intrusive measures: the government had “not demonstrated why there was an unacceptable degree of risk by continuing to allow places of worship which employed effective mitigation measures and had good ventilation to admit a limited number of people for communal worship” (at [115]). The fourth stage entailed “a weighing up of the severity of the measure’s effects on the one hand, against the benefits secured by the measure on the other” (at [118]). The Court said that “it is not clear … that the blanket closure of all places of worship can be said to have contributed to a material reduction in risk” (at [119]). Mitigating factors were possible instead, and online worship was not a substitute for public worship given, for example, communion, baptism and confession could not take place online (at [121]). Although the severity of Covid-19 deserved “considerable weight” (at [123]), the Regulations were not within the margin of appreciation (at [126]). The Regulations constituted a disproportionate interference with the Article 9 right, and so were beyond legislative competence.

The question is “finely balanced”, as the Court put it at [126], but the view that the Regulations were disproportionate, although contestable, is credible because of the severity of the impact of closing places of worship. For example, the Court’s analysis of whether there were less intrusive measures – the third stage of the Bank Mellat test – relied on the idea that alternative measures could have been adopted to mitigate the risk of coronavirus transmission. And indeed, caps on attendance, mask wearing, and even holding services outdoors, as in the measures before the US Supreme Court in Newsom, are such possibilities.

However, these alternative measures would presumably not be as effective at stopping the pandemic as a ban on public worship. Any gathering at all – particularly an indoor one – facilitates transmission of the virus and, on one view, there is no less intrusive measure that stops transmission altogether than holding services online. Other measures do not stop transmission altogether, but rather reduce or mitigate it, which is a different policy choice. A mitigating measure that permits some transmission is arguably not the equivalent of a measure that prevents it altogether; it might even be viewed as one that unacceptably compromises the achievement of that objective. Underlying notions of what is appropriate policy in dealing with the pandemic therefore inform the proportionality assessment.

The same contestability is apparent in the balancing exercise mandated by the fourth stage of the Bank Mellat test. In essence, the Court reasoned that the exigencies of the pandemic were outweighed by the importance of public worship, as protected by Article 9 of the Convention, at least in respect of regulations that banned it altogether throughout mainland Scotland. This view is defensible: religious freedom is a very important right, and the restriction was a very heavy burden on it. But it might also be said that the pandemic, and the protection of people’s lives, are very important (even if they cannot be a blank cheque to the state). If the closure of places of worship is taken on a temporary, emergency basis – as was arguably the case here, since the restrictions were due to be lifted on 26 March 2021 – there is a legitimate view that it can be proportionate, depending on the context.

For example, in Australia and New Zealand, governments have basically eliminated community transmission of the coronavirus and thereby largely returned to pre-pandemic life. Drastic measures were used to achieve this. During the second lockdown in the state of Victoria in 2020, places of worship were closed entirely. However, a distinctive feature of the antipodean approach is that the Victorian government only began lifting those restrictions when new cases dropped to zero. Since eliminating the coronavirus has not been the goal of restrictions in the UK, case numbers tend to fall during lockdown only to rise again, and stop-start lockdowns have become a new normal. This might, on one view, make the sacrifice of closed places of worship a taller order, since such closures may recur.

Adjudication of disputes about Convention rights, in circumstances of a lengthy, unremitting coronavirus pandemic, poses particular difficulties. The pandemic is a global crisis in which millions of people have died. But, having passed the one-year mark, it has also become a kind of new normal in many countries, one in which people may be reluctant to accept significant abridgement of legally enshrined human rights, including freedom of religion. In assessing proportionality in this context, courts may struggle to avoid value judgments about proper public health policy that they are not particularly well equipped to make. With the legal issues being borderline – unless states choose to derogate from the relevant rights – state parties to the Convention risk adverse judicial decisions if they interfere with freedom of religion through closures of places of worship.

My thanks to Alison Young and Michael Gordon for their insightful comments. Any errors are mine alone.

Guy Baldwin is a PhD student in constitutional law at the University of Cambridge

(Suggested citation: G. Baldwin, ‘Banning Public Worship during the Pandemic?’, U.K. Const. L. Blog (12th April 2021) (available at https://ukconstitutionallaw.org/))