Scottish Government's COVID ban on communal worship is 'unlawful' says court

THE SCOTTISH Government has lost a court battle with a group of Christian leaders over the forced closure of churches during the coronavirus pandemic. 

Communal worship – along with all other mass gatherings - has been banned under the Covid regulations since the latest lockdown started on January 8.

A group of 27 churches believe that the government had overreached. 

Janys Scott QC, representing a separate group of 27 church leaders, said: “If one of my 27 ministers were to open their place of worship, they would be a criminal, and if a member of a congregation were to leave their home to attend worship, that is not permitted.”

The court was told there is a constitutional settlement separating the powers of the church and state, and that petitioners believe their ability to worship is “at least as important as food”.

Lord Braid agreed the regulations went further than was lawfully allowed, and disproportionately interfered with the freedom of religion secured in the European Convention on Human Rights.

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.

“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.

Lord Braid said it was important to understand that he had “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.”

He added: “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.”

Places of worship will be allowed to reopen on 26 March, in time for Passover, Easter, Ramadan and Vaisakhi.

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

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.”

The Church of Scotland had previously moved to distance themselves from the legal action,  saying it was the wrong course to take “when the country is under threat from Covid-19".