Outer House judge finds closure of Scottish churches disproportionate interference with human rights



Lord Braid
Lord Braid

A judicial review petition by 27 religious leaders in Scotland challenging the legitimacy of the Scottish Ministers’ decision to close places of worship in January 2021 has succeeded in the Outer House of the Court of Session

Revered Dr William Philip, as well as 26 other petitioners from various Protestant denominations of Christian churches in Scotland, argued that the respondents did not have the constitutional power to restrict the right to worship in Scotland and that the closure was an infringement on the human rights of Christians in Scotland. 

The petition was heard by Lord Braid. The petitioners were represented by Scott QC and the respondents by Mure QC. An additional party from a Roman Catholic church, Canon Thomas White, was added following the commencement of proceedings, who was represented by O’Neill QC

Unprecedented persecution 

The closure was effected by the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021, which came into force on 8 January 2021 and were approved by resolution of the Scottish Parliament on 20 January 2021. An intention to re-open places of public worship from 26 March 2021 was later stated by the respondents. 

Prior to the coming into force of the Regulations it was possible for people to gather at places of worship provided that a minimum distance of two metres was maintained and they were only admitted to the premises in sufficiently small numbers as to make it possible to maintain that distance. However, while the closure remained in effect places of worship could only be used under specific circumstances provided for by the Regulations including broadcasting sermons and funerals. 

The respondents stated that the closure was part of a response to the new variants of Covid-19 with increased transmissibility that began to emerge in December 2020. Strategic advice given to the respondents suggested that indoor contact should be reduced to the lowest level possible.  

It was argued by the petitioners that the physical gathering of Christians for worship was an integral part of their faith that could not be substituted by virtual events. They stated that the closure was “an interference with the practice of the Christian religion in Scotland, unprecedented since the persecution of the Presbyterian church instituted by the Stuart kings”.  

It was further submitted for the petitioners that the Regulations effectively criminalised worship, and that it was a fundamental feature of the Scottish constitution that the State, including both Westminster and devolved authority, had no authority over the worship of the church. The prohibition also engaged ECHR issues, in particular freedom of worship under Article 9(2) and peaceful assembly under Article 11. 

The respondents acknowledged that the religious beliefs of the petitioners were genuinely held but argued that the Regulations did not prevent worship. Viable alternatives, such as online broadcasts, were available until the re-opening of churches. Further, the Regulations did not relate to spiritual matters, and therefore did not interfere with the independence of the church. 

Worship-lite 

In his opinion, Lord Braid noted that the matter at hand may be “academic” if the restriction did lift on 26 March, but added: “Nonetheless, the issues raised are of importance, since there have been previous church closures; and for aught yet seen, there may be future lockdowns. The petitioners made clear at the outset of the substantive hearing that they therefore insist in the orders sought, as they are entitled to do, not least as for the time being, the Regulations remain in force.” 

Noting that the respondents were at pains to avoid describing places of worship as “closed” due to the exceptions in the Regulations, he said of this point: “There can be no doubt that places of worship may not open for worship and in that sense it is jejune at best, misleading at worst, to state that places of worship remain open. They do not. It is no more correct to state that churches remain open because certain activities may be carried out there, than it would be state that cinemas remain open because they are used as jury centres.” 

On whether online broadcasts could be a proper alternative to in-person sermons, he said: “These are best viewed as an alternative to worship, rather than worship itself. While certain church practices -the reading of prayer, preaching and teaching -may be observed, or even, in the case of live streaming, participated in to a certain extent, on a computer screen or a television whilst alone, in the solitude of one’s own home, that does not amount to collective worship.” 

He added: “That might be an alternative to worship but it is not worship. At very best for the respondents, in modern parlance, it is worship-lite.” 

Turning to the constitutional issue, Lord Braid said: “It is arguable that the state has not merely the power to act to preserve public health and life, but that it has a constitutional duty to do so. In this case, that duty has come into conflict with its duty not to interfere in matters which are the sole province of the church.” 

He continued: “Since the Regulations do interfere with the constitutional right of the petitioners to worship, notwithstanding that they have as their primary purpose the protection of health and preservation of life, they will be beyond the constitutional competence of the respondents (at least insofar as the petitioners and the additional party are concerned) if that interference is not proportionate.” 

Less intrusive means 

Considering whether there was an ECHR issue in relation to freedom of worship, Lord Braid said: “The respondents have failed to show that no less intrusive means than the Regulations were available to address their aim of reducing risk to a significant extent. Standing the advice they had at the time, they have 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.” 

He concluded: “Even if I am wrong in reaching that conclusion, the respondents have in any event not demonstrated why it was necessary to ban private prayer, the reasons which were given for that recommendation being insufficient to withstand even the lowest degree of scrutiny.” 

For these reasons, Lord Braid concluded that the Regulations constituted a disproportionate interference with the Article 9 rights of the petitioners and others. 

In addressing the appropriate remedy in light of the potential re-opening of churches on 26 Match, he said: “I can see the force in allowing the respondents a short opportunity to consider how the Local Levels Regulations might be amended in light of my decision. However, if the restrictions are indeed removed, in any event, within the next few days, then the issue may be academic. I also wish to be addressed further on the ‘reasonable excuse’ declarator, since I am not currently persuaded that to grant it would not be usurping the function of the legislature.” 

The case was therefore put out to call by order so that the parties could make further addresses on what orders should be made.

© Scottish Legal News Ltd 2021



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