In January, the Scottish government became the only government in the UK – and in most of Europe – to forcibly close Churches as part of their lockdown measures.
The decision placed Scottish worshippers in a difficult situation. Many want to take all efforts to care for the vulnerable. Yet with other national governments finding ways to make sure that Churches are open and “Covid-secure” so that individuals could make the decision for themselves about whether they felt it necessary to worship collectively or at home, it’s unclear why Holyrood decided otherwise.
A significant case will sit before the Scottish courts on Thursday to determine whether there cannot be a more reasonable compromise – one that protects health while also protecting the right to freedom of worship, a fundamental human right. A coalition of evangelical Church denominations and a representative from the Catholic church have issued claims for judicial review, supported respectively by Christian Concern and ADF International. In addition to appealing to human rights protections, the cases argue that the worship prohibitions breach the constitutional power conferred to churches in Scotland to be independent of the State. They assert that since Westminster’s medical and scientific experts admit that the evidence to support closing churches is “weak” and “anecdotal” rather than based on “scientific fact”, it’s reasonable to allow Churches to open, with strict safety precautions, without placing greater strain on the nation’s health.
Whether one agrees or disagrees, the question is: will the judiciary proactively engage with these arguments and issue a timely ruling?
The UK prides itself on its democratic principles. Central to democracy is accountability, in part realised through the courts and facilitated by an independent judiciary with the authority to review government actions– un-swayed by political dealings.
But, since the first set of Covid-19 regulations were rushed through Parliament, various individuals have sought to challenge the government’s law–making via judicial review but been left disappointed. In England in 2020, cases filed at the courts included challenges to the Department for Health, Department for Education, the Treasury, Transport for London, and the Home Office, with a common argument that the government has acted ‘ultra vires’, beyond its legal authority. In some of the legal challenges, the protector of human rights, the judiciary, heard and passed judgment on the arguments.
But in other challenges, to the dismay of the claimants, the courts struggled to hand down a ruling before the rules were changed again.
Among the cases which didn’t have a satisfactory outcome for the claimants was the human rights claim against the complete limitation on freedom of worship in England.
In the first Dolan judicial review, Ms Monks, a practising worshipper, argued that her human rights from the English common law and European human rights regime had been restricted without appropriate justification because she was precluded from attending communal worship during the first national lockdown. Despite filing the claim with the courts as soon as reasonably possible, by the time the judges heard the case a few months later, the worship argument was ‘moot’; the rules had changed a few times since.
In another freedom of worship challenge by Omooba, a church pastor, court delays dragged the case out – after both first and second lockdowns – and the case was eventually dropped.
In all likelihood, the reasoning put forward in these cases is what convinced the English, Welsh and Northern Irish authorities to allow Churches to be open at their members’ discretion, once safety measures were secured.
Yet almost a year since people were told that they could not freely live out their religious beliefs – while other activities remained open – the English courts have still not robustly analysed whether the initial restrictions on churches were proportionate and permissible.
Now, the Scottish judiciary have an opportunity to proactively engage with the same claims while the issue is still live. With Scotland being the only nation in the UK to have banned worship at this time, the Christian challenge could make Holyrood think again.