Nicola Sturgeon’s coronavirus regulations that forced the closure of churches in Scotland and criminalised public worship have been deemed unlawful.
Some representatives from the Church of Scotland, the Free Church of Scotland, the Free Church of Scotland (Continuing) and a number of independent churches launched a claim for judicial review against the rules that closed churches during lockdown.
The group of 27 church leaders launched a case at the Court of Session arguing Scottish Government ministers acted out with their powers when ordering the closure of places of worship under emergency legislation.
Their case has now met with success just ahead of new guidance out on Friday allowing churches to open with congregations of up to 50 people.
Judge Lord Braid issued his judgment on Wednesday, finding the Scottish Government regulations were unlawful as they disproportionately interfered with the freedom of religion secured in the European Convention on Human Rights (EHRC).
He said: “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.
“The above factors all point towards the conclusion that the regulations have a disproportionate effect."
“There are however other factors which point the other way, not least the severity of Covid-19 and the threats posed by the new variant, which I do not underplay in the slightest. This factor deserves considerable weight.
“The need to avoid the NHS being overwhelmed is another factor, although if I am correct in saying that the risk is reduced to an insignificant extent by the regulations, this factor attracts less weight.
“The fact that much public opinion, including that of other faiths and church leaders, supports the closures is also a relevant consideration, which I thought initially might carry some weight.
“However, I have concluded that it does not, for a number of reasons.”
Additional party Canon Tom White’s argument that the regulations were disproportionate on constitutional grounds was also found to be the case by the judge.
A further hearing will now take place so potential remedies can be discussed.
The petitioners have asked for a declarator that a person living in a Level 4 area may lawfully leave their home to attend a place of worship.
Churches are due to be allowed to open on Friday under Scottish Government guidance.
Lord Braid added: “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.”
