Hercules comes to Scotland: the quashing of the Scottish Regulations Restricting Assembling with others for Worship Purposes

Abstract

In a landmark case, the Outer House of the Court of Session in Scotland on 24 March 2021 declared that the closure of worship places in Scotland was a disproportionate interference with the right to freedom of religion and freedom of assembly under article 9(2) and 11 of the European Convention of Human Rights. This is probably the first successful case in challenging lockdown regulations. Two previous attempts, in England and Scotland, failed.

This judgment, delivered by Lord Braid, could have consequences for other European jurisdictions facing similar restrictions, not least in Ireland, where currently religious services must be held online.

Lord Braid’s judgment is as an example of anxious scrutiny in judicial review of administrative action in the pandemic context. His consideration of the evidence concerning closure of worship places strikes as well documented and highly demanding assessment. Lord Braid’s assessment provides good reasons to think that the government could have chosen an alternative and less intrusive measure to curb COVID-19 and prevent the health system from being overwhelmed. Nevertheless, given the exceptional circumstances in which governments are crafting their emergency responses to the pandemic, pitching proportionality assessments as Lord Braid does is concerning. Hence, as a rule of thumb, there should be a more deferential and institutionally sensitive approach to judicial review of emergency response measures.

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https://creativecommons.org/licenses/by-sa/4.0

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Identifiers

DOI

https://dx.doi.org/10.17176/20210330-194951-0

Repository URI

https://strathprints.strath.ac.uk/80914/