The Scottish government’s policy banning gathered church worship is set to face a full judicial review following a legal challenge from 27 Scottish church leaders.
Supported by the Christian Legal Centre, the leaders, who come from a range of Christian denominations, including the Church of Scotland, the Free Church of Scotland, the Free Church of Scotland (Continuing), and a number of independent churches, launched the action stating that the closures are unlawful as they breach Human Rights law and the Scottish constitution.
Urgent consideration
The legal claim was lodged on 28 January 2021 and was deemed suitable for urgent consideration by a judge. The Scottish Ministers were given seven days to challenge whether permission should be given for the claim to proceed, which they declined to do. It allowed the Scottish Ministers, the Lord Advocate and the Advocate General a chance to decide whether they wanted to participate in the decision of the court as to whether permission be granted for the Judicial Review to proceed.
Lord Braid has now granted full permission for a substantive hearing, which will take place remotely on the 11 and 12 March 2021. This could result in the courts ordering the Scottish Ministers to allow churches to reopen.
Church leaders have described the legal case as a “crucial moment for the freedom of the church in Scotland” and stated that the continued “criminalisation of public worship is damaging and dangerous” for the country.
Disproportionate step
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 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 should be allowed to “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 lodged the legal claim for judicial review on 28 January 2021 arguing 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 legal case, the church leaders will seek a ‘declarator’ that the closure of churches in Scotland is 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’.”
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.
‘A crucial moment’
Rev. Dr William Philip, leader of The Tron Church in Glasgow, said: “Criminalising corporate worship is both damaging and dangerous for Scotland, and we are pleased that this case will be heard in March 2021.
“We must care for people as whole human beings, and Covid 19 is not the only threat to health and wellbeing.
“Our congregation of 500 in the heart of Glasgow is diverse in age and background, including some of the most vulnerable in the city. I have witnessed first-hand huge suffering through lockdown, not least a huge increase in loneliness, misery and untold damage to mental health. The worst deprivations from this ban are inflicted on the poorest, the neediest, the most vulnerable – now excluded from the comfort and encouragement in life and death only Christian worship can give.
“At a time when we have been forcefully confronted with the fragility of mortal life, we have allowed the message of the eternal to be eclipsed entirely by the earthly in the national consciousness. There is an urgent need for a message of hope and salvation. This is the calling of the Christian Church – especially in dark and difficult days: Jesus Christ is the only hope that dispels all fear, death included.”
Rev. Geoffrey de Bruin, leader at Christian Revival Church Edinburgh, said: “This is now a crucial moment for the freedom of the church in Scotland.
“The closure of churches is a breach of the historic principle of the independence of the church from the state which is enshrined in the Scottish constitution.
“The state may see church ministry as parallel to other public gatherings such as cinemas and restaurants, but believers see church ministry as far more important.
“For Christians, spiritual health is more important than physical health.
“Churches serve as lifelines of support to the most vulnerable during the toughest times and we pray that these important principles and beliefs will be recognised and upheld by the courts in March.”
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