Court of Session finds closure of churches to be unlawful

The Court of Session has found, in a judicial review brought by a number of Christian churches, that the closure of places of worship by the Scottish Government under Covid-19 regulations was unlawful.

The significance of this case may lie in two points:

First, it is the first time a UK court has struck down government-imposed restrictions on individual freedoms arising from the covid-19 pandemic. This follows other cases in New Zealand and the United States, an unsuccessful challenge in England, and an interim order granted by Glasgow Sheriff Court. Even if it is academic at this stage, the court has asserted that government power to make regulations of this sort is subject to limits, even in times of emergency, and that is an important reminder of a very important principle.

Second, the court considered (and ruled on) the infringement of the right to worship as both an ECHR right and as a common law constitutional right. Given that political debate continues on whether the Human Rights Act should be amended or even repealed, this judgment may be a significant reminder that the power of the courts to rule on questions of individual rights is not a European import but a fundamental part of the law of Scotland.

The judicial review

The challenge to the lawfulness of the enforced closure of churches was brought by 27 church leaders representing a number of different denominations. It concerned Closure Regulations which were brought into force on 8 January 2021 (and approved by the Scottish Parliament almost two weeks later). The Closure Regulations were made by the Scottish Government under powers granted by the UK Parliament (rather than by the Scottish Parliament) under the Coronavirus Act 2020.

The churches argued that the Closure Regulations were unlawful for two reasons: firstly, because the Scottish Government lacked the power to make them to the extent that they contravened the freedom to practice religion and threaten the independence of the church, and secondly because they were a disproportionate interference with the rights (under the European Convention on Human Rights (the "ECHR")) to freedom of religious belief and freedom of peaceful assembly.

Each challenge was based on the right to worship – the first, the right to worship as a constitutional right protected by the common law of Scotland; the second, the right to worship as a human right protected by the ECHR and by the Human Rights Act 1998.

The "constitutional issue"

It was a matter of debate whether the closure of churches for worship and prohibitions on individuals participating in group worship, was a spiritual matter, within the exclusive jurisdiction of churches themselves, or a civil matter, within the jurisdiction of the state. The churches' position that there was an almost absolute right of self-regulation for churches was rejected. Instead, Lord Braid, drawing on what the Supreme Court has said about common law constitutional rights, drew the line here: "any interference in worship by the state will be lawful if (and only if) it is a proportionate and necessary response to a civil matter in which the state is entitled to legislate."

The court accepted that the Closure Regulations were an interference with a common law constitutional right to worship, and would be unlawful if they were not a proportionate interference with that right.

That question of proportionality was then considered alongside the question of proportionality of interference with rights protected by the ECHR.

The human rights issue

The Scottish Government, as a public authority, is required (under the Human Rights Act 1998 and separately under the Scotland Act 1998) not to act in a way incompatible with the ECHR; in this case, specifically, the right to freedom of thought, conscience and religion protected by article 9, and the right to freedom of association and assembly protected by article 11.

The right to manifest religious belief protected by article 9 and the rights protected under article 11 are not absolute: they can be interfered with in the public interest provided that such interference is necessary and proportionate. Resolution of this issue, like the constitutional issue, therefore came down to whether the restrictions imposed by the Closure Regulations were proportionate.

Proportionality

The court accepted that the Closure Regulations were prescribed by law, and that they pursued a legitimate aim (noting particularly that the aim was not the elimination of all deaths, or even all premature deaths, from covid-19, but only the suppression of risk to the lowest possible level).

The test for whether an interference with ECHR rights is proportionate comes down to four questions:

• Is the objective sufficiently important to justify the limitation of the right? The court considered that was not in dispute.
• Is the measure rationally connected to the objective? The court concluded that it was not irrational to think that the more people stay at home, the less transmission there will be.
• Could a less intrusive measure by used without unacceptably compromising the achievement of the objective? Here the court thought the Government's arguments to be weaker – the scientific evidence might well be convincing but once the Government conceded that there ought to be exceptions to the "stay at home" rule, it fell on them to justify why one of those ought not to be the right to attend a place of worship. In particular, the court noted that by opening cinemas for jury trials, the Scottish Government had effectively conceded that persons from different households gathering indoors could be safe if suitable mitigation measures were in place. The Government failed to demonstrate why the article 6 right to a fair trial had to be protected (by juries meeting in cinemas), but the article 9 right to freedom of worship did not.
• Does the severity of the measure's impact on the rights in question outweigh the importance of achieving the objective? Although, having decided the measures were not necessary to achieve the objective, the court did not need to go on to this question, it nonetheless concluded that the Scottish Government had not accorded the right to freedom of worship the importance which it deserves. Moreover, given that worship was a low-risk activity, where the risks could be mitigated, the effective criminalisation of public worship was a sledgehammer to crack a nut.

So what happens next?

The court has issued a declarator holding that the relevant parts of the Closure Regulations were outside the powers of the Scottish Government, though churches are set to reopen to communal worship on Friday 26 March in any event (subject, of course, to any further restrictions imposed in future).

Whether this judgment provides impetus to further challenges, particularly as (in the words of Lord Braid) 3 weeks of lockdown has become 6 has become 9 has become 11, remains to be seen.