In a historic judgment, a judge has today (24 March) ruled that the Scottish Ministers’ decision to ban and criminalise gathered church worship during the current lockdown was unconstitutional and disproportionate.
Handing down judgment, Lord Braid also ruled that online worship is not real Christian worship, stating that it is not for the 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 on-line. 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.”
The judgment states that the Scottish government’s worship ban is therefore a disproportionate interference of Article 9 ECHR rights. It is believed that this is the first successful legal case against covid regulations in the UK.
Victory for Scottish church leaders
Supported by the Christian Legal Centre, 27 Scottish church leaders, from a range of Christian denominations, had brought the legal action stating that the unprecedented closures were unlawful and breached Human Rights law and the Scottish constitution. The leaders come from the Free Church of Scotland (Continuing), the Free Church of Scotland, the Church of Scotland, and a number of independent churches.
Their claim came in response to the restrictions outlined by First Minister, Nicola Sturgeon, on Friday 8 January 2021, which made it a criminal offence for churches in the highest tiers, to hold in person services and, for example, to conduct baptisms.
At a full judicial review hearing at the Court of Session in Edinburgh earlier in March, the leaders had sought a declarator (an declaration order) that the restrictions on churches were unlawful and a declarator which would allow people to attend church, should the tier system be reintroduced.
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.
‘Must never happen again’
Responding to the ruling, Rev. Dr William Philip, Senior Minister at the Tron Church in Glasgow, said: “We are very pleased that Lord Braid has recognised how essential gathered church worship is to our communities and to Scotland as a whole.
“From the outset we have recognised the serious decisions the Scottish Ministers had to take in response to the pandemic. However, its 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, said: “Over centuries, Christian worship has been regarded as a fundamental freedom in the nations of the United Kingdom. During this pandemic, for the first time in history, our governments chose to criminalise gathered church worship.
“We are thankful and relieved that the High Court in Scotland has recognised this dangerous interference with our God given right to engage in worship for exactly what it is, and ruled it unconstitutional. The fundamental principle of freedom has prevailed with a strong dash of good old common sense.”
During the judicial review on the 11 and 12 March, Janys Scott QC, representing the 27 Scottish church leaders, argued that the pandemic had highlighted an “irreconcilable conflict” for church leaders between obeying the state and God.
“Church leaders do not lightly take to law,” Scott told the court. “My note of argument makes no apology for starting with a statement — and that is Jesus is Lord because that encapsulates the issue as far as the petitioners are concerned.
“The Scottish ministers have presented these 27 church leaders and very many more ministers, church elders and ordinary members of congregation with a deep crisis.
“As Christians their primary obedience is to God and not to the state and there is a fundamental obedience in regular communal public worship.
“Regular communal public worship is a central part of the Christian’s life of faith and of the church’s being.
“And to be absolutely clear this is not about buildings — it’s about assembly of congregations; the sacraments of communion and baptism and the ministry between members of a church are integral aspects of expression on what it is to be a Christian and to belong to a Christian church.
“The petitioners would say that faith is a matter of hope in life and in death and it’s more than mere obedience and that it is essential particularly at a time of national crisis.”
Scott argued that the closure of churches is unlawful, criminalises public worship and goes against centuries old practice that churches in Scotland have authority over their own affairs free from state interference.
She accused John Swinney, the Deputy First Minister of holding a “condescending and inaccurate” attitude towards public worship, by treating churches as if they are a “matter of personal welfare or comfort.”
“The Deputy First Minister does not understand”, Scott said. “The primary purpose for worship is not for social or mental well-being. Public worship is a robust central aspect of the practice of the Christian both individually and as a church.
“It is important because that it is no exaggeration to say that over the centuries Christians have died in the defence of the public worship in the church and Christians continue to die in the defence of the public worship in church.
“There is an irreconcilable conflict between the obedience of the Christian church to their God or God and obedience to the state.”
Scott told the court that past legal rulings and the nature of the constitution meant that the state couldn’t interfere with churches.
She also said the European Convention on Human Rights did not allow the Scottish Ministers to take the action of stopping public worship.
“It’s not for the government to question the legitimacy of beliefs or the manner in which they are expressed,” she said. “The petitioners say that public corporate worship is essential to the church — it is of the essence, of the being of the church and that is a matter for them.”
In her concluding remarks, Scott said: “Without wanting to resort to hyperbole, what is worryingly insidious about the way this has been presented to us politically is, ‘oh no, we haven’t closed your churches’ – and that’s in the face of a regulation that says places of public worship will be closed.
“That’s what the First Minister said and that’s what’s been said in the course of argument for the Scottish Ministers.
“When one starts using double-speak like that one gets to exactly the issue which Article 9 is designed to forfend.
“I’m saying this from the perspective of a group of ministers and church elders who want to defend their right to worship, but it is there as an underlying point which is protected for good reason by the European Convention on Human Rights.”
Find out more about Church lockdown