Closing churches breached human rights

Ministers had no legislative competence to make coronavirus regulations

A successful challenge to regulations made under the Coronavirus Act 2020 this week has received surprisingly little coverage. What makes it particularly unusual is that it was brought under article 9 of the human rights convention, which protects freedom of religion. The practical effect is negligible but the ruling should remind ministers that secondary legislation can be struck down if it does not comply with the Human Rights Act 1998 — something of which the lord chancellor is all too well aware.

The regulations in question are the snappily-titled Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No 11) Regulations 2021. Among other things, they closed all places of worship in Scotland from 8 January 2021 until today. The regulations, made by the Scottish government, were challenged by 27 ministers and church leaders of various protestant denominations in Scotland. A Roman Catholic priest was allowed to join the challenge later.

One ground of challenge in the outer house of the Court of Session — comparable to the High Court in England and Wales — was constitutional: the regulations were said to contravene the historic freedom of churches in Scotland to practise religion and to threaten the independence of the church. That led the judge, Lord Braid, into a fascinating discussion of the “doctrine of the twa kingdoms” embedded as a public theology within Scots law by the General Assembly Act 1592. But the judge concluded that this argument added nothing to the petitioner’s (claimant’s) case under the Human Rights Act. And that turned on whether the regulations were disproportionate.

Braid found that the regulations had been lawfully made. They were not arbitrary. The aim was legitimate. The regulations were rational. But could a less intrusive measure than closing places of worship have been used to achieve the objective of maintaining health and preserving life?

Yes, said the judge. Ministers

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…

Turning to the question of proportionality, Braid said it was not clear that Scottish ministers had fully appreciated the importance of article 9 of the human rights convention:

They have admittedly paid lip service to article 9 by referring to it, but there is no evidence that they have accorded it the importance which such a fundamental right deserves… When addressing the Covid-19 Committee, the Deputy First Minister appears to have thought that there was no interference at all... However, there is no doubt... that the right to manifest one’s religion is an important right to which much weight must be attached. 

As for severity of effect, it is all too easy to argue, as the respondents in effect do, that “it doesn’t really matter” that places of worship are closed because it’s only for a short period, and those who wish to do so can go on-line. The first of those points is valid to an extent, although it should be pointed out that three weeks became six became nine, and that by the time the regulations (we are told) will be revoked or amended with effect from 26 March 2021 they will have been in force for 11 weeks.

I have already commented on virtual “worship”. It can be seen only as an alternative to, not a substitute for, worship. While some people may derive some benefit from being able to observe on-line services, it is undeniable that certain aspects of certain faiths simply cannot take place, at all, under the current legislative regime: in particular, communion; baptism; and confession, to name but three. It is impossible to measure the effect of those restrictions on those who hold religious beliefs. It goes beyond mere loss of companionship and an inability to attend a lunch club. 

The fact that the regulations are backed by criminal sanctions is also a relevant consideration. Were the petitioners to insist on manifesting their beliefs, in accordance with their religion, they would be liable to be met with a fine of up to £10,000, a not insignificant penalty.

These factors, said the judge “all point towards the conclusion that the regulations have a disproportionate effect”. As such, they were beyond the legislative competence of the Scottish government.

Braid added a helpful 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. 

Churches in England and Wales were not required to close during the current lockdown. Braid’s 70-page ruling is not binding outside Scotland. But it is of persuasive authority and well worth reading.