As we noted yesterday, in Philip & Ors for Judicial Review of the closure of places of worship in Scotland  CSOH 32, Lord Braid ruled in the Outer House of the Court of Session that the enforced closure, in January 2021 of places of worship under the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021 had been an unjustified and disproportionate infringement of the petitioners’ rights to freedom of worship and of assembly under Articles 9(2) and 11 ECHR and were also unconstitutional.
“ 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.”
We understand that, in light of this, places of worship in Scotland will be able to open with immediate effect if they wish to do so, and the relevant Regulations – The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 18) Regulations 2021 and the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 18) Amendment Regulations 2021 have made the necessary changes to the law.
The Scottish Government’s guidance on the safe use of places of worship has also been amended to reflect the new situation.
The main amendment regulations [SI 2021 No.166] and the ‘Amendment to the Amendments’ regulations [SI 2021 No.168] made the same day (24 March 2021) by Scottish Minister Michael Russell, both contain what has become the standard rubric in coronavirus regulations, “These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.” Although SI 166 also amends the earlier ‘Local Levels Regulations’ to add organised picketing to the purposes for which persons are permitted to gather in outdoor public places in Level 0 to 4 areas, would it not have been more honest and transparent to add to the rubric, “and to make the regulations compliant with the law as set out in the Opinion of Lord Braid in the case of Philip and others v Scottish Ministers (Judicial Review of the closure of places of worship in Scotland)  CSOH 32.”
One further point: As a result of the ‘amendment to the amendments’, the amendments in respect of places of worship came into force today, 25 March. However, but for the judge effectively ‘staying’ his decision on remedy “so that parties may address me further on what orders I should make, in light of this Opinion, and the foregoing comments” (see judgment, paras 131-135), an Order would surely have been made declaring the original regulations unlawful (or, pro tanto unlawful) as from the date they were made. Lord Braid accepted that the issue might become academic “if the restrictions are indeed removed, in any event, within the next few days”, but this assumes that no one has been fined or given a penalty notice for breaching the prohibition held now to be unlawful. It will be interesting to see what Orders are eventually made in the case.