Scottish church leaders launch legal action over ‘unlawful’ closures

1 February 2021

A group of Scottish church leaders has launched a claim for judicial review over the Scottish Minsters’ unprecedented decision to close churches and criminalise public worship during the current lockdown.

Supported by the Christian Legal Centre, 27 church leaders from a range of Christian denominations, including the Free Church of Scotland (Continuing), the Church of Scotland, the Free Church of Scotland, and a number of independent churches, have launched the action, stating that the closures are unlawful and breach European Convention of Human Rights law and the Scottish constitution.

Restrictions outlined by First Minister, Nicola Sturgeon, on Friday 8 January 2021, made it a criminal offence in the highest tiers for churches to hold services in-person and, for example, to conduct baptisms.

In response, the church leaders sent a pre-action letter to the Scottish Ministers on 15 January, urging them to re-open churches.

They emphasised that the regulations prohibit them from supporting the material, emotional and spiritual needs in their congregations and communities.

In the claim the church leaders outlined that they fully understand the seriousness of the COVID-19 pandemic and the difficult decisions the Scottish Government has had to take.

However, the leaders stated that they believe the Scottish Ministers’ have “failed to appreciate that the closure of places of worship is a disproportionate step, and one which has serious implications for freedom of religion.”

The Scottish Ministers’ responded by rejecting the claim and declaring that the state can ‘regulate the secular activities of Churches…for the purposes of protecting public health’ and that churches are compelled to ‘comply with secular law’ and therefore must remain closed.

This statement conflicts directly with the long-established and traditional authority Scottish churches have had over their own affairs, free from state interference. This is enshrined in the 1592 Act, the 1706 Act for Securing Protestant Religion and the Church of Scotland Act 1921.

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

Left with no alternative but to pursue a judicial review, lawyers representing the church leaders, will now argue that the regulations are in violation of the European Convention on Human Rights (Articles 9 and 11) and the Scottish Constitution.

As part of the claim, the church leaders will seek a ‘declarator’ that the closure of churches in Scotland are unlawful, that church closure regulations must be reversed, and that a person may lawfully leave their home to attend a place of worship without fear of prosecution.

In the claim, the church leaders: ‘hold that public corporate worship, involving the physical gathering together of Christians… are fundamental and indispensable aspects of their religion’, and argue that ‘in the absence of the gathered people of God, there is effectively no “church.”’

The Scottish Ministers’ now have seven days to respond.

Closures ‘illogical’ says microbiologist

Scottish Ministers’ insist they are relying on ‘science’ to justify a number of lockdown measures, including church closures. However, an expert report, provided as part of the case by microbiologist, Dr Ian Blenkharn, describes the strategy as ‘illogical’ on a number of levels.

Dr Blenkharn says, for example, that it is: “illogical to propose that church premises can be used for blood donor sessions, food banks and other social support activities, and if required for Covid-19 testing and vaccination activities”, but not for public worship.

At present, a church building in Scotland could be used as a vaccination centre, but should the same people recite the Lord’s Prayer together, they could be prosecuted.

Dr Blenkharn’s report concludes that he can find: “No barriers to the safe opening of churches for worship. Indeed, there is an overwhelming and unavoidable comparator that church services present no additional risk of COVID-19 coronavirus infection than would the many different commercial activities in the manufacturing, supply and retail sectors etc that are now permitted to operate.”

‘Constitutional issues’

The decision to close churches in Scotland is out of step, not only with the decision of the English and Welsh government’s decision to allow churches to remain open under the current lockdown, but also internationally.

In November 2020, Chancellor Angela Merkel refused to close churches in Germany due to ‘constitutional issues’.

Earlier this year a French high court branded government church closures as unlawful and overturned the ban, and the Supreme Court of the United States recently allowed churches to remain open in New York state.

Vulnerable excluded

Rev. Dr William Philip, leader of the Tron church in Glasgow City Centre, which has over 500 members of all ages and backgrounds, said: “We are able to do some things remotely via broadcasting, but many – especially the poorest, the oldest, and those most vulnerable – have no access to this. They are excluded completely from the possibility of Christian worship, and the comfort and encouragement in life and death only this can give.

“Due to the severe restrictions upon gatherings and significant distress this has caused, we have faced no alternative but to pursue legal action.”

Rev. Nathan Owens, Minister of Maxwell Church in Kilmaurs, said: “I serve a number of vulnerable people and I have seen the dire consequences that shutting churches has had on those people for whom church is a lifeline. We think churches being open is not only a human right or a Scottish constitutional matter, but is one of the most vitally important ways our society can respond to this pandemic.”

Gerald White, Pastor of Hope church in Edinburgh, said: “I serve the local community on a council estate and there is a lot of darkness here. The church offers hope to the hopeless. People’s struggles with drug and alcohol addictions are exacerbated at this time. Mental health issues are even worse than they were before and single mothers in particular are struggling. Under these regulations we cannot reach and support those in greatest need.”

John William-Noble, pastor of Grace Baptist church in Aberdeen, said: “We do recognise that the pandemic is very serious and churches throughout this past year have followed a number of guidelines given by the government in order to protect health and safety. Churches have demonstrated that they are one of the most Covid secure parts of society.”

Rev. Dr Rupert Hunt-Taylor, Minister of Edinburgh North Church, said: “When the nation faces a life and death situation, with so much already taken away from so many, you don’t close down the one source of true hope that Scotland has turned to for centuries.”

Find out more about Church lockdown
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