Success of churches in Court of Session action
Mar 24, 2021
During a two day hearing earlier this month, it was argued for Reverend Dr William Philip, and 26 other ministers and church leaders of Christian Churches of various protestant denominations, including the Free Church of Scotland (Continuing), the Baptist Church and others, that Scottish Ministers had no power to order the closure, as:
- it was unconstitutional
- it was an unjustified infringement of their right to manifest their religion under article 9 of the European Convention on Human Rights (ECHR).
The action was supported by Canon Thomas White, of the Roman Catholic Church, who presented similar arguments.
The petitioners asked the Court to rule that the provisions of the regulations which brought about the closure - the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021 (SSI 2021/3) – were unlawful; to reduce those provisions; and to declare that a person may lawfully leave the place where that person is living in order to attend a place of worship.
At the hearing, the petitioners argued that the regulations threatened the independence of the Church and that Scottish Ministers had no power, whatever the circumstances, to order churches to close, thereby preventing worship. They claimed that to do so involved state interference in spiritual matters, which were the sole province of the Church and had been since the 16th century and the days of the covenanters. They also argued that the regulations were an unlawful and disproportionate interference with the petitioners’ right to manifest their religion, which did not admit of on-line worship, and, as such, a breach of their article 9 right. While the regulations pursued a legitimate aim – the protection of health and preservation of life – they were not the least restrictive means of achieving that aim. Mitigation measures in place in churches had already reduced the risk of transmission of the virus. The status quo should have been preserved, failing which a limit placed on the number of persons who could attend, failing which private prayer should have been permitted to continue. It was significant that England and Wales had not seen fit, on this occasion, to order places of worship to close. Cases from other jurisdictions showed that courts across the world had ruled restrictions on the right to worship unlawful. The petitioners’ right to manifest their religion had not been accorded sufficient importance by Scottish Ministers. The regulations had a disproportionate impact on the petitioners, who were completely unable to worship in accordance with their beliefs.
Scottish Ministers opposed the action. They argued that the regulations, which were directed towards public health, did not involve a spiritual matter and were not unconstitutional. Nor were they unlawful or disproportionate in terms of ECHR. They had been made under the Coronavirus Act 2020 which, among other things, permitted Scottish Ministers to make regulations closing premises. The Scottish Ministers should be allowed a wide margin of appreciation to make decisions, balancing a range of interests which all had to be taken into account. The risks posed by the variant strain of Covid-19, which had become prevalent by December 2020, justified a cautious approach. Although the petitioners’ article 9 right had been interfered with, the interference was limited, standing the ability to worship online.
In a written judgment issued today, Lord Braid has found in favour of the petitioners, upholding most (although not all) of their arguments. He ruled, first, that although the regulations had a legitimate aim, they nonetheless had the effect of preventing worship and to that extent did involve a spiritual matter. However, contrary to the petitioners’ argument, the regulations would not be unconstitutional if (but only if) they were proportionate.
That in turn depended on whether they were proportionate in ECHR terms. The regulations had been lawfully made in terms of the 2020 Act, and were not arbitrary. The aim pursued was important. The regulations were rational. When it came to whether less restrictive means of achieving the aim were available, however, Lord Braid agreed with the petitioners that Scottish Ministers had not discharged the burden, on them, of showing that less restrictive measures had not been available. Advice to them at the time of the emergence of the new variant was that compliance with guidance in places of worship was generally good, and that, in public health terms, a reduction in the number permitted to attend a place of worship to a maximum of 20 should suffice. No good reasons had been advanced for the rejection of the options either to reduce numbers to below 20, or to allow churches to open only for private prayer. To the extent that the advice was based on an assertion that 800,000 people regularly attended church in Scotland, that figure was not justified by the data. Separately, while certain aspects of church services could be replicated online, some aspects of worship could not – for example, baptism, communion and (in the case of Roman Catholics) confession. Online platforms provided an alternative to, but did not constitute, worship. Scottish Ministers had not adequately explained why some activities such as jury centres in cinemas were able safely to continue, but not places of worship. As regards proportionality, while the decision was finely balanced, the importance of the article 9 right coupled with the blanket ban on all worship including private prayer meant that the regulations had a disproportionate impact. In reaching this view, Lord Braid left out of account the fact that England and Wales had adopted a different approach, since the Court did not know what different considerations applied there. Similarly he left out of account the decisions from other jurisdictions. It was not known what factors informed those decisions.
The petitioners are therefore entitled to have the regulations declared unlawful. As regards other remedies, Lord Braid has assigned a hearing for the afternoon of Wednesday 24 March 2021 to be addressed further on what orders he should make, in view of the fact that Scottish Ministers have announced that the regulations are likely to be amended in any event with effect from 26 March 2021.
Lord Braid pointed out that it was as important to understand what he had not decided as to what he had. He had not decided that all churches must immediately open or that it was safe for them to do so, or even that no restrictions at all were justified. All he had decided was that the regulations which were challenged in the petition went further than they were lawfully able to do, in the circumstances which existed when they were made.
24 March 2021