COVID-19: was the closure of places of worship in Scotland lawful? Philip & Ors

In Revd Dr William J U Philip & Ors for Judicial Review of the closure of places of worship in Scotland [2021] CSOH 32, the petitioners, ministers in various Protestant denominations joined by an additional party, Canon Thomas White, a Roman Catholic priest [4], sought judicial review of the lawfulness of the enforced closure, in January 2021 of places of worship in Scotland under the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021 (SSI 2021/3). The case raised two issues: (1) the extent if any to which the respondents had the constitutional power, at common law, to restrict the right to worship in Scotland; and (2) whether the closure was an unjustified infringement of the petitioners’ rights under Articles 9(2) and 11 ECHR [1 & 2].  The petitioners sought declarator that the Regulations were unlawful in so far as they purported to require the closure of churches in Scotland and to criminalise public worship, reduction of regulations 4(b), (e)(i) and (f)(i) of the Regulations (which removed certain exemptions which previously existed in relation to worship), and declarator that a person living in a Level 4 area might lawfully leave his or her home in order to attend a place of worship [2].

The petitioners averred that communal worship was an integral and essential part of Christianity and that virtual, internet events were no substitute and that the Regulations were ultra vires insofar as they contravened the historic freedom of the churches in Scotland to practise religion and threatened their independence. They also averred that the Regulations were unlawful because they were a disproportionate infringement of the petitioners’ Article 9 and 11 rights to freedom to manifest their religious beliefs and to freedom of peaceful assembly [5].

On the ECHR issue, it was common ground that Articles 9 and 11 were engaged [55]. Lord Braid agreed that the Regulations were prescribed by law [98] and pursued a legitimate aim: the protection of public health and preservation of life [99]. The core issue was whether or not they were proportionate and “necessary in a democratic society”: (i) whether the objective being pursued was sufficiently important to justify the limitation of a protected right; (ii) whether the measure was rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (iv) whether the severity of the measure’s effect on the rights of the persons to whom it applies outweighed the importance of the objective [100].

Its importance was not in dispute [101] and the impugned Regulations satisfed the rationality stage of the assessment: that said, however, there was “a whiff of irrationality about the decision not even to allow places of worship to open for private prayer, when one looks at the reasoning behind that option not being recommended” [103]. As to whether the object could have been achieved by less intrusive means, His Lordship was not convinced, concluding that

“… without in any way questioning the science which underlay the respondents’ decision-making … the respondents have failed to show that no less intrusive means than the Regulations were available to address their aim of reducing risk to a significant extent. Standing the advice they had at the time, they have not demonstrated why there was an unacceptable degree of risk by continuing to allow places of worship which employed effective mitigation measures and had good ventilation to admit a limited number of people for communal worship. They have not demonstrated why they could not proceed on the basis that those responsible for places of worship would continue to act responsibly in the manner in which services were conducted, and not open if it was not safe to do so; in other words, why the opening of churches could not have been left to guidance. Even if I am wrong in reaching that conclusion, the respondents have in any event not demonstrated why it was necessary to ban private prayer, the reasons which were given for that recommendation being insufficient to withstand even the lowest degree of scrutiny” [115].

The Regulations, therefore, were not a proportionate interference with the Article 9 rights of the petitioners and the additional party [116].

Balancing the severity of the measure’s effects on the one hand, against the benefits secured by the measure on the other, he concluded that, though the decision was ultimately a political one and that the respondents enjoyed some margin of appreciation:

“Nonetheless, the apparent under-playing of the importance of the Article 9 right in comparison with other activities, coupled with the blanket ban on all forms of worship, including private prayer, communion, confession and baptism, lead me to the conclusion that even if some enforced restriction on the right to worship was justified by the situation in December 2020/January 2021, the Regulations in the form they were passed did have a disproportionate effect and thus that they also fail the fourth stage of the assessment” [126].

He concluded that the Regulations were a disproportionate interference with the Article 9 right of the petitioners and others and, therefore, beyond the legislative competence of the respondents [127] and that the Regulations are also a disproportionate interference with the petitioners’ and additional party’s constitutional rights [128]. However, he added a caveat:

“It is as important to understand what I have not decided as what I have. I have 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. 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” [129].

Lord Braid put the case out to call By Order on Wednesday 24 March 2021 so that parties might address him further on what orders he should make, in light of his Opinion and the foregoing comments [135].

Cite this article as: Frank Cranmer, "COVID-19: was the closure of places of worship in Scotland lawful? Philip & Ors" in Law & Religion UK, 24 March 2021, https://lawandreligionuk.com/2021/03/24/covid-19-was-the-closure-of-places-of-worship-in-scotland-lawful-philip-ors/

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