Covid in Scotland: lockdown rules forcing churches to close deemed unlawful

Covid restrictions in Scotland that force churches to close and criminalise public worship have been deemed unlawful by a judge.

A judicial review was launched by a group of 27 church leaders at the Court of Session.

They argued that Scottish Government ministers acted outside the remit of their powers when ordering places of worship to close under emergency coronavirus legislation.

On Wednesday 23 March, Judge Lord Braid issued his judgement which found the regulations were unlawful as they disproportionately interfered with the freedom of religion secured in the European Convention on Human Rights (EHRC).

He said: “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.

“The fact that the regulations are backed by criminal sanctions is also a relevant consideration.

“Were the petitioners to insist on manifesting their beliefs, in accordance with their religion, they would be liable to be met with a fine of up to £10,000, a not insignificant penalty.”

‘Disproportionate effect’

Lord Braid added: “The above factors all point towards the conclusion that the regulations have a disproportionate effect.

“There are however other factors which point the other way, not least the severity of Covid-19 and the threats posed by the new variant, which I do not underplay in the slightest.

“This factor deserves considerable weight.

“The need to avoid the NHS being overwhelmed is another factor, although if I am correct in saying that the risk is reduced to an insignificant extent by the regulations, this factor attracts less weight.

“The fact that much public opinion, including that of other faiths and church leaders, supports the closures is also a relevant consideration, which I thought initially might carry some weight.

“However, I have concluded that it does not, for a number of reasons.”

Additional party Canon Tom White’s argument that the regulations were disproportionate on constitutional grounds was also found to be the case by the judge.

A further hearing will now take place so potential remedies can be discussed.

The petitioners have asked for a declarator that a person living in a Level 4 area may lawfully leave their home to attend a place of worship.

Churches are due to be allowed to open on Friday under Scottish Government guidance.

Lord Braid added: “It is as 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.

“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.”

‘Damaging and dangerous’

Rev Dr William Philip, senior minister at the Tron Church in Glasgow, was one of those behind the legal challenge and welcomed the ruling.

He said: “However well intentioned, criminalising corporate worship has been both damaging and dangerous for Scotland, and must never happen again.”

Canon White added: “I’m overjoyed to hear that the court has understood the essential need to protect not only the physical and material health of our society but also its spiritual needs and therefore overturned the disproportionate, unnecessary and now deemed illegal blanket ban on public worship.”

A Scottish Government spokeswoman said: “The First Minister has set out that places of worship will be able to welcome congregations of up to 50 where there is space for physical distancing from March 26 – this is in time for a number of important religious festivals over the next few weeks.

“We acknowledge this opinion and will now carefully consider the findings, its implications, and our next steps.

“Court proceedings are ongoing and it would be inappropriate to offer any further comment at this stage.”

Additional reporting by PA.