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Balfour+Manson client wins case over ‘draconian’ limits on worship

The Scottish Government has lost a court challenge to its Covid-19 regulations closing all churches for congregational worship and private prayer – rules described as “Draconian and disproportionate” by the Balfour+Manson lawyer involved in the case.

Lord Braid upheld the Court of Session challenge by representatives of several churches that the regulations were both a disproportionate interference with the fundamental right to religious freedom – and so breached the human rights of the petitioners and others as well as their constitutional rights. As such, they are beyond the legislative competence of the Scottish Government.

Elaine Motion, Partner and Chairman of Balfour+Manson, represented Canon Tom White of St Alphonsus Church in Glasgow, in the case.

She said : “The Scottish approach to public worship was the most Draconian in the UK, and placed disproportionate limitations on people of faith.

“There were other less restrictive – but perfectly appropriate – options open and provided to the Scottish Government that did not deny people their right to worship and celebrate their faith. The fact that criminal sanctions are in place for any breach of the regulations, particularly conscientious belief, has a fundamental chilling effect on worship and belief.

“The Catholic Church in Scotland has always made it very clear it would only allow people to worship in a safe, socially-distanced manner, to protect and save lives.”

Mrs Motion said Canon White accepted that public worship will require to be carried out in a restricted manner and not in the way which was done before the pandemic.

What he says, however, is that this can be done by way of guidance drafted in accordance with discussion and agreement of the faith communities rather than imposed unilaterally by the Scottish Government without proper consultation.

Canon White, also Dean of the City East Deanery and Canon of St Andrew’s Cathedral Chapter in Glasgow, has previously said: “Freedom of worship is a human right, and receiving the sacraments is as vital to me and my parishioners as receiving food and water.“

Although First Minister Nicola Sturgeon announced on March 9th that public worship would be restored from March 26th, Mrs Motion said Canon White felt it was right to press ahead with the case. “It was important for the court to decide these critical issues. Without that occurring it would be open to the Scottish Government to re-impose or indeed increase further restrictions in future,” she said.

“The physical gathering together of Christians for prayer, proclamation of the Christian Gospel and the celebration of Holy Communion by Christians meeting together in one place are indispensable aspects of the practice of Catholicism. That cannot, generally, be achieved virtually. This appears to have been totally overlooked in the Scottish Government’s decision. The Catholic Church has been fully engaged in discussion about creating a safe environment for worship, but senior figures in the Church said there had been no meaningful consultation.”

Mrs Motion, who led a successful challenge against the UK Government’s prorogation of Parliament during the Brexit impasse in 2019, added: “Despite the special significance of worshipping in person for members of the Catholic Church – and the Church’s willingness to follow all possible safety guidelines – their voices were silenced.”

The priest, who represents people in some of the most deprived areas of the UK, used a crowdfunding site to cover the costs of the legal challenge, led by Aidan O’Neill QC and David Welsh.

Click here to view the judgment