Covid blanket ban on church worship in Scotland ruled unlawful

The Scottish Government’s blanket ban on church services as part of its Covid regulations has been ruled unlawful in Scotland’s highest civil court.

The prohibition on worship has been overturned by Lord Braid in the Court of Session after a challenge was brought by a coalition of 28 faith leaders.

Lord Braid said the regulations went further than the government was lawfully able to do, but this did not mean churches should “reopen immediately or that no restrictions are required”.

One of the challengers, Glasgow Catholic priest Canon Tom White, said he was “overjoyed” by the result, which “highlights the significance of the church’s role in the very fabric of our society”.

Canon Tom White has been successful in his legal challenge over the ban of worship.

He said: “The court has understood the essential need to protect not only the physical and material health of our society, but also it’s spiritual needs and therefore overturned the disproportionate, unnecessary and now deemed illegal blanket ban on public worship.”

Rev. Dr William Philip, senior minister at the Tron Church in Glasgow, said: “We are very pleased that Lord Braid has recognised how essential gathered church worship is to our communities and to Scotland as a whole.

“From the outset we have recognised the serious decisions the Scottish ministers had to take in response to the pandemic. However, its approach to banning and criminalising gathered church worship was clearly an over-reach and disproportionate and if this had gone unchallenged it would have set a very dangerous precedent.

“However well-intentioned, criminalising corporate worship has been both damaging and dangerous for Scotland, and must never happen again."

And Andrea Williams, chief executive of the Christian Legal Centre, said: “Over centuries, Christian worship has been regarded as a fundamental freedom in the nations of the UK.

"During this pandemic, for the first time in history, our governments chose to criminalise gathered church worship.

"We are thankful and relieved that the court has recognised this dangerous interference with our God given right to engage in worship for exactly what it is and ruled it unconstitutional. The fundamental principle of freedom has prevailed with a strong dash of good old common sense.”

The legal action, which was raised by individuals within the Free Church of Scotland (Continuing), the Free Church of Scotland, the Church of Scotland, the Catholic Church and a number of independent churches, stated the closures of churches were unlawful and breached Human Rights law and the Scottish constitution.

While the government has now said places of worship can reopen for Easter services with a cap of 50 people, the court decision states they were treated unfairly in comparison to other public places regarded as “essential” by the government, which had been allowed to open throughout the latest lockdown.

Lord Braid stated in his decision: ”I have concluded that the regulations … constitute a disproportionate interference with the Article 9 right of the petitioners and others. As such, they are beyond the legislative competence of the respondents.”

He added: “The regulations are also a disproportionate interference with the petitioners’ and additional party’s constitutional rights.”

Lord Braid also rejected the government’s argument that congregations could simply worship online.

"While some people may derive some benefit from being able to observe online services, it is undeniable that certain aspects of certain faiths simply cannot take place, at all, under the current legislative regime," 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.

“The above factors all point towards the conclusion that the regulations have a disproportionate effect.”

However, Lord Braid also said the severity of the Covid threat should not be underplayed and "deserves considerable weight”.

But he said the government had “paid lip service” to Article 9 of the European Convention on Human Rights, which states: “Everyone has the right to freedom of thought, conscience and religion… including the right to manifest his religion or belief, in worship, teaching, practice and observance.”

Lord Braid said there was “no evidence that they [the government] have accorded it the importance which such a fundamental right deserves”.

Arguments were submitted to the court on the behalf of Canon White by Aidan O’Neill QC, one of Scotland’s leading human rights advocates, who called the ban “an extraordinary abuse of the state’s power”, which had a “fundamental chilling impact on worship and belief”.

Lord Braid said: “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.”

A Scottish Government spokesperson 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.”

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

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