Law and religion round-up – 29th March

“This is an emergency, and so emergency legislation is necessary. But it is worth noting that this legislation is in parts the most illiberal statutory instrument since at least the Second World War. And in other parts, it is the most vague legislation since the Dangerous Dogs Act.”

David Allen Green

An unusual timeline

The sequence of events leading to the legislative controls to halt the spread of COVID-19 coronavirus has not followed the conventional pattern. The Prime Minister’s speech on 23 March was accompanied by the updating of extant guidance from the Ministry of Housing, Communities & Local Government (MHCLG) and other government departments. In response, social distancing and restrictions on movement began to take place. The  MHCLG guidance was again updated but it was not until 26 March than the legislation underpinning these requirements was published and became law, shortly before being laid before parliament.

Coronavirus Act 2020

The Coronavirus Act 2020 came into force on 25 March, the commencement of some sections requiring Regulations appointed by a Minister of the Crown: see s.87(2). The Explanatory Memorandum is not yet available; there are, however, Explanatory Notes which relate to the Coronavirus Bill as brought from the House of Commons on 24 March 2020 (HL Bill 110).

Given the principal objective of the Act, the postponement of General Synod might be seen as one of the more trivial of its “other purposes”. However, had General Synod not been the law-making body for the Church of England, and its legislation formed part of the law of the UK, it is unlikely that s.84 (Postponement of General Synod elections) would have seen the light of day:

“(1) Her Majesty may by Order in Council, at the joint request of the Archbishops of Canterbury and York, postpone to the date specified in the Order the date on which the Convocations of Canterbury and York stand dissolved for the purposes of the Church of England Convocations Act 1966”.

Privy Council meetings are held monthly, and the last was on 11 March. S.84(4) provides that an Order under that section may make consequential, supplementary, incidental, transitional or saving provision.

Closer to the objectives of the Act are the provisions addressing the procedures relating to the fatalities resulting from the coronavirus:

Important in the context of law and religion is Part 4 of Schedule 28, Cremation and wishes of deceased, which includes the provision:

“13(1) In carrying out functions under this Schedule, local authorities and the appropriate national authorities must have regard to the desirability of disposing of a dead person’s body or other remains: (a) in accordance with the person’s wishes, if known, or (b) otherwise in a way that appears consistent with the person’s religion or beliefs, if known.”

When the Bill was first introduced, it overruled legislation that made it illegal for local authorities to cremate bodies against the deceased’s or the family’s wishes; however, the legislation around enforced cremation was amended to respect the strict laws around burial in the Jewish and Muslim faiths.

Coronavirus: closure of all Church of England buildings

On Tuesday, the Church of England issued a Press Release confirming that all its buildings were to be closed – including for private prayer – with immediate effect, in an effort to help limit the transmission of coronavirus. In a joint Ad Clerum, the Archbishops of Canterbury and York announced the decision to close, in support of the restrictions that had been announced by the Prime Minister on Monday. The Ad Clerum and Press Release came after what appeared to be a certain amount of resistance from some clergy who were appearing to argue that the particular circumstances of their church and parsonage house meant either that it was necessary to use the church as a work-space or that the particular configuration meant that the church could safely be left open.

The MHCLG Guidance: Further businesses and premises to close provides advice for “Businesses and premises that must remain closed” and the relevant exemptions. Places of Worship are included under the headings “non-residential institutions”. The Guidance which was current when the Archbishops’ statement was issued on 23 March included exemptions for funerals (following the social distancing guidance); places of worship, which should remain open for solitary prayer; and live streaming of a service without an “audience” (sic). This was updated on 25 March, and again on 26 March, and currently includes exemptions for places of worship relating to funerals; ministers broadcasting from their place of worship; and the use of churches &c for “essential voluntary or public service, such as food banks, homeless services, and blood donation sessions”.

It should be noted that this government advice is for all places of worship, not just for the Church of England; furthermore, there is nothing to prevent the CofE from requiring stricter measures than the government. Bishops in the Diocese of Chelmsford have stated:

“The Church of England guidance does go further than the government guidance and comes from our own medical advice. In the light of that advice we believe we need to take the lead in demonstrating how important it is to stay at home and that we can still be the church without our buildings, hard though that is at present.”

However, it has been indicated that advice e-mailed from the London bishops appears to follow the Government’s recommendations, and in some churches, such as St Mary Bourne Street, there is a direct, if tortuous internal link, between the vicarage and the church. And although unrelated, that from the Church in Wales appears to be similar.

This Government guidance was followed by the formal regulations: The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 and The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. These came into force at on 26 March at 1 pm and 4 pm, respectively, and expire at the end of the period of six months beginning with the day on which they come into force. Furthermore, the Secretary of State must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16th April 2020.

In Scotland, The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 were made late on 26 March and came into force immediately. They  were laid before the Scottish Parliament on the following day. There are differences between the various SI, most notably in the approach of the Scottish Regulations in relation to restrictions on movement,

“S5( 1) Except to the extent that a defence would be available under regulation 8(4), during the emergency period, no person may leave the place where they are living.

Late on 28 March, The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were made and laid before the Assembly, coming into force at 11.00 p.m..

In the English version of the regulations, sub-paragraphs 5(5) and  5(6) echo the above guidance on places of worship, and the restrictions in movement in paragraph 6 provisions for: 6(2)(g) attendance at a funeral; and 6(2)(k) in the case of a minister of religion or worship leader, to go to their place of worship. Similar provisions are within the Welsh SI.

Coronavirus: attendance at funerals

On 26 March, the Diocese of Oxford commented [emphasis added]:

“Funerals may now only happen at the Crematorium or at the graveside – this is to ensure physical distancing and infection control. With regard to numbers attending a funeral, we are aware that there are at times differences of policy between that of the national church, funeral directors and crematoria. The national church are looking into this matter presently. For your safety and that of mourners, may we encourage you to keep to the national church policy wherever possible.”

The Church of England summarises the current position in its Coronavirus (COVID-19) FAQs, last updated on 27 March:

“Funerals may now only happen at the Crematorium or at the graveside. Only immediate family members can attend (if the crematorium allows) – that is, spouse or partner, parents and children, keeping their distance in the prescribed way.” [emphasis added]

So whether or not even close family members may attend a cremation seems, ultimately, to be a decision for the operators of the individual crematorium – not one for the officiant at the funeral or for his or her religious superiors.

A group of seven organisations representing the funeral, burial and cremation sector have issued joint guidance on the number of mourners attending funerals following the Government’s announcement on limiting attendance to immediate family only. The Death Management Advisory Group (DMAG), which is regularly liaising with the Government on the sector’s response to COVID-19, comprises the Association of Private Crematoria and Cemeteries (APCC), Federation of Burial and Cremation Authorities (FBCA); Funeral Furnishing Manufacturers’ Association (FFMA); Institute of Cemetery and Crematorium Management (ICCM); National Association of Funeral Directors (NAFD), National Society of Allied & Independent Funeral Directors (SAIF) and The Cremation Society.

Current advice from DMAG recommends that funeral services consider limiting attendance to members of the immediate family who are not in any of the high-risk categories and are not self-isolating. It regards the “immediate family as: Spouse/Partner; Parents/carers; Brothers/Sisters; Children (and partners)” and further notes that “Limiting attendees must be done sensitively and taking into account individual circumstances. For example, if the deceased person had few, if any immediate, relatives but close a friend wished to attend the service, that would be reasonable – or in the case of the death of a grandparent, attendance by the grandchildren would be appropriate”.

Church building maintenance

On Saturday, the Church of England issued the snappily-titled Securing and caring for your church buildings during the Covid-19 pandemic: advice for incumbents, churchwardens and PCC members, (“the Advice”). This provides clear guidance on a number of practical issues, not least of which is the maintenance of church clocks, bearing in mind the change to British Summer Time (BST) at 1 am on Sunday, 29 March. This was summarized in our post here;  with other updates from the Church on 27 March, including the Archbishops’ further exhortation on the complete closure of churches, this has been added to our Coronavirus updates – index page.

PPC Meetings

On Monday we published a guest post by David Lamming ‘Virtual’ PCC meetings and other Coronavirus-related issues; David’s thoughts were further expanded in a later post in the Church Times So, are PCCs allowed to meet without meeting?

Abortion in Northern Ireland

The Abortion (Northern Ireland) Regulations 2020 were laid before Parliament on Wednesday.

Safeguarding: Thirtyone:eight

On 5 December 2019, we reported that Thirtyone:eight had announced that it had been commissioned by Emmanuel Church, Wimbledon, to undertake an independent lessons-learnt review of the events surrounding Jonathan Fletcher and Emmanuel Church. It is now making an urgent final call for anyone to come forward with information relevant to allegations concerning Rev Jonathan Fletcher and safeguarding culture at Emmanuel Church, Wimbledon. Anyone who has not yet made contact, including victims and survivors, and who wishes to participate in the review, can do so confidentially by emailing: JFsafeguardingreview@thirtyoneeight.org. This can include those simply passing relevant information on to the organization.

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9 thoughts on “Law and religion round-up – 29th March

    • As you know, we like to be “ahead of the curve”, but in this case it was my last minute insertion that introduced the typo, now corrected. Thanks for spotting it. dp

  1. The Church of England is rightly concerned about the transmission risk at a funeral. As noted in the post, its position on who may attend a funeral is more limited than the DMAG guidance and also the government advice of 31st March, which says “only the following should attend: members of the person’s household; close family members; if the deceased has neither household or family members in attendance, then it is possible for a modest number of friends to attend”. Legally, can the CofE decide who can attend a funeral if its held at a crematorium and not a church, and is also organised by funeral directors, not by clergy? Clergy can inform a funeral of the CofE position but how are they meant to enforce it at a crematorium?

    • A good point; clergy have been placed in a difficult pastoral position re: the conduct of a services at the crematorium, and a particularly important one since almost 80% opt for cremation rather than burial [2018 data from Cremation Society]. The hierarchy of control over attendance at a funeral is government legislation/guidance and then crematorium management.

      The Church of England’s Funerals during the COVID-19 Outbreak: Notes for Clergy, dated 26 March 2020, is headed “This note explains the current Church of England guidance on funerals, which should be read in conjunction with the latest public health advice”, but then continues “Because of the present public health regulations, the only available options for Church of England funerals are the following: a short service at the crematorium, with or without a very small congregation, which may only include spouse/partner, parents, and children of the deceased; a short service at the graveside, under the same conditions.

      It appears that an interpretation of the Church’s view on who should be attending turns on whether “may” is used to denote the Church’s preference on attendees, or it is providing an example of who might be in a typical congregation. However, it is not for L&RUK to speculate.

  2. Pingback: COVID-19 Coronavirus: legislation and guidance | Law & Religion UK

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