Scotland's Covid lockdown ban on church services breached human rights, judge rules

Judgement that coronavirus regulation was unconstitutional is first legal ruling of its kind

Tron Church in Glasgow
The Tron Church in Glasgow was among those to oppose the government rules Credit: Tass

A ban on church services in Scotland was unconstitutional and breached human rights, a court has ruled, in the first legal victory against Covid laws.

In the judgement, published Wednesday, a judge ruled that a decision by Scottish ministers to ban and criminalise communal church worship during the current lockdown “disproportionately infringed” the freedom to express religious beliefs secured in the European Convention on Human Rights.

It was also found that the forced church closures were unlawful because they breached the Scottish constitution.

In a landmark ruling – which came two days before communal worship is due to resume north of the Border – Lord Braid agreed the regulations went further than was lawfully allowed and that the Scottish Government regulations “amount to a disproportionate infringement of the petitioners’ human rights”.

Following the judgement, at a remedies hearing on Wednesday afternoon, Lord Braid said that churches in Scotland could instead open with "immediate effect". 

"In practical terms, we are only talking about one day or just over a day," he said. “There are existing restrictions in place in the regulations – everybody knows what the new regulation and guidance is going to be.  

“I don’t see that there’s anything that is going to happen tomorrow that the court needs to cater for given that churches and places of worship across Scotland of all faiths have, as the Scottish Ministers, have recognised in previous communications and correspondence have acted responsibly. So the declarator can have immediate effect.”

The ruling was made after a group of 27 church leaders from a range of Christian denominations, alongside Canon Tom White, a Glasgow-based Catholic priest, launched a judicial review at the Court of Session arguing that the Scottish Government had acted beyond its powers under emergency legislation. 

It marks the first victorious judicial review against Covid laws in the UK, and also acts an "in principle" judgement regarding any future bans and criminalisation of church worship setting a precedent for any future lockdowns – and not just those in Scotland.

Handing down judgement, Lord Braid 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."

Lord Braid also ruled that online worship was not real Christian worship, stating that it was not for Scottish ministers to: "Dictate to the petitioners or to the additional party, that, henceforth, or even for the duration of the pandemic, worship is to be conducted online. 

“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."

He also concluded that the Government made its decision without explaining why it had decided not to consider other measures, such as limiting the numbers of people into churches. 

However, Lord Braid emphasised that he was not saying that coming together for worship was safe or that churches “must immediately open”.

"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," he said.

Responding to the ruling, the Rev Dr William Philip, senior minister at the Tron Church in Glasgow, who was among the petitioners who brought the judicial review, said: “Scottish ministers’ 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.

"There is an urgent need for a message beyond that of just health and safety: a message of hope and salvation, and Jesus Christ is the only hope that dispels all fear, death included. Now is the time as we begin to exit the current lockdown for the church in Scotland, and across the UK, to provide the spiritual leadership that is so desperately needed.”

Andrea Williams, chief executive of the Christian Legal Centre, which supported the 27 church leaders who brought the legal action, said: “The fundamental principle of freedom has prevailed with a strong dash of good old common sense.”

Canon White, who was supported by ADF UK, the faith-based rights group, added: “This decision highlights the significance of the church’s role in the very fabric of our society. 

“Now, we can trust that our fragile and damaged communities will never again be left without the church as a source of hope, comfort, and vital spiritual nourishment in times of crisis.”

The claim came in response to restrictions outlined by Nicola Sturgeon on Jan 8 this year, which made it a criminal offence for churches in the highest tiers to hold in person services and, for example, to conduct baptisms.

There had previously been no attempt to close churches in Scotland since the persecution of the Presbyterian church, instituted by the Stuart kings, in the 17th century.

Communal worship is due to resume in Scotland from Friday, in time for Passover, Easter, Ramadan and Vaisakhi.

Up to 50 people will be able to attend if the place of worship is large enough to facilitate 2m social distancing, an increase from the limit of 20 people that had applied pre-lockdown.

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.”

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