Janys Scott QC

“These church leaders were being put in an impossible situation by a regulation that said they had to shut their churches – that precluded worship, which is a fundamental part of their Christian faith,” she says.

“It’s not often as an advocate that you get the opportunity to put that conviction over, and it’s a conviction that I share. When I spoke to [Lindsays partner] Brent Haywood, who was my instructing agent, I thought, here are Christians wanting to stand up for their convictions – that Jesus is Lord – and it’s not often that you get people brave enough to do that.

“These 27 really deserved to have that put out in a way that is properly understood in a secular world.”

The case was argued on two grounds: that by imposing a ban on religious gatherings Scottish ministers were infringing the right of churchgoers to express their religious beliefs, and that the ban threatened the long-held independence of the church as an institution. It was the latter point, Ms Scott says, that was particularly interesting to litigate.

“There’s a really interesting Scottish constitutional point and it’s really important not to lose that because the ministers were keen to bring it,” she says.

“It’s about the separation of church and state in Scotland. The Scottish constitution has at its heart a separate jurisdiction for the church and state that has been in place since 1592, so pre-Union. That led to a firm defence of the church in the Act of Union, which guaranteed two things – one was the church and one was the law. The church in Scotland has its own regime over its own affairs and that includes worship.

“The judge [Lord Braid] decided that there is a divide between the spiritual and the civil. The case turned on the question of proportionality, but he endorsed the [church] ministers’ position, which was hugely important to them.”

While the case being argued was a novel one, so too was the judgment. Indeed, though he found in the petitioners’ favour, Lord Braid made it very clear that what he had not decided was just as important as what he had.

“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,” he wrote in his opinion. “All I have decided is that the regulations which are challenged in this petition went further than they were lawfully able to do, in the circumstances which existed when they were made.”

As the Scottish government had already said churches could open for communal worship within days of the judgment being handed down, in some ways Lord Braid’s decision was moot. Ms Scott says that, regardless, it has merit because of the principle it has laid down.

“There was no challenge to the dangers of Covid or the need for health measures and that can be seen from what the judge said,” she says.
“What was being said by the church leaders was that we have to look at this properly because certain things are so important they need to be accommodated. You can go to the supermarket or to the bank but where does the church sit within that scheme of things?

“They felt that the Scottish ministers had put that too far down the heap. They had classified the manifestation of religious belief as if it was some sort of service, but it is much more than that.

“The restrictions were being lifted anyway, but the effect of this is really to lay down a principle – you can’t close down churches as if they are swimming pools or gyms, they have a more important dimension to them.”

Having moved to Scotland in the 1980s after her clergyman husband got a job in Musselburgh, Ms Scott’s life is closely tied to the church, but the constitutional case was a departure from her usual area of focus. After practising as a solicitor in Oxford she originally worked in-house at the British Association for Adoption and Fostering on making the move north. After calling to the bar in 1992 she continued to focus on work with a family element, helping significantly develop that area of the law after taking silk in 2007.

“I applied for silk because it meant I could argue the more interesting case at a higher level,” she says. “I also felt very strongly that with the cases that went to the House of Lords, as it was then, the silks weren’t specialists and you really need specialists to argue at the highest level.

“It’s hard to think of this now in 2021, but back in the 1990s family law did tend to have a particular profile and it wasn’t recognised as being of such importance as it is now. Things have changed enormously over the past 20 years.”

Ms Scott names the first case she argued in the UK Supreme Court – Principal Reporter v K – as a career highlight as it challenged the Children (Scotland) Act 1995 on human rights grounds to establish that an unmarried father had the right to attend children’s hearings relating to the care of his own child. Finding in his favour, the judges – Lord Hope, Lord Rodger, Lady Hale, Lord Kerr and Sir John Dyson – said the case raised “a fundamental issue about fairness”.

“That was exactly the sort of case I felt had to be argued by someone who was steeped in family law,” Ms Scott says.

Other standout cases have seen her successfully establish the principle that the Scottish courts were taking too narrow an approach when determining the rights of cohabiting couples, and that the Secretary of State for Work and Pensions could not restrict the eligibility of people with mental health difficulties to claim Personal Independence Payments.

Even a case she did not ultimately win – ABC v Principal Reporter and another – is hugely important to Ms Scott because while it did not, as had been hoped, establish that children should be given the same status as parents in children’s hearings, it did establish that they should be given a say. “We lost the battle but won the war,” she says.

In addition to arguing before the courts, Ms Scott has been a part-time sheriff since 2005, a role she says has helped sharpen her own advocacy technique.

“I’ve found it has broadened my focus and helped on how to address a court,” she says. “I now know what’s helpful and what’s not; I can think about it from the perspective of the person who is going to make the decision.”

Though she enjoys being involved in that decision-making process, Ms Scott says it is not a role she would like to explore further by seeking a full-time position on the bench.

“I’ve got a job I really love, why would I want to change it?,” she says.