Law and religion round-up – 10th May

Another week dominated by you-know-what…

… and despite a short break in our service, with guest posts from Professor Rebecca Probert and Professor Russell Sandberg, here and here, our readership was soon back to normal levels.

Approval of lockdown legislation in England

On 4 May, MPs approved a motion to approve the legislation that underpins the current ‘lockdown’ in England: The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020. An explanation to the procedures involved in the approval of these Regulations was given on the House of Commons Library Insight pages.

Due to the coronavirus pandemic, the Secretary of State for Health and Social Care declared that the Regulations were needed urgently and brought into force without prior parliamentary approval;  they came into force on Thursday 26 March 2020 after Parliament had risen early for the Easter Recess due to the crisis. However, they could not remain in force indefinitely without parliamentary approval, and under the Public Health (Control of Disease) Act 1984, such approval was required within 28 days (excluding certain times when both Houses of Parliament are not sitting); otherwise, the Regulations would cease to have effect on 19 May.

Regulation 3(2) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI 350 requires the Secretary of State to review the need for the restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16 April 2020. The most recent review was due on Thursday 7 May, and it expected that an announcement will be made today, 10 May, with a statement to the House of Commons tomorrow.

Lockdown legislation in Wales

On 8 May it was announced that following the latest evidence from the UK Scientific Advisory Group for Emergencies (SAGE) and the advice of the Chief Medical Officer for Wales, the Welsh Government had decided the lockdown in Wales would continue until the next review period in three weeks’ time. It will make “a series of small adjustments to the regulations” (t.b.a.), although none of these is likely to affect churches and other faith communities. These were planned to come into force on Monday, so Wales could move in step with the rest of the UK.

COVID-19, charities and volunteering

On Wednesday, the House of Commons DCMS Committee published a report on The Covid-19 crisis and charities. Perhaps most controversially from the Government’s point of view, it recommends that

the Government should introduce a separate Coronavirus Job Retention Scheme for charities within four weeks. The scheme should enable furloughed employees of charities to volunteer for their organisations providing appropriate safeguards are met. We also ask the Government to guarantee that six weeks’ notice will be given of the Coronavirus Job Retention Scheme ending so that charities can plan accordingly, and to phase the ending of the scheme to support any charities that are unable to return immediately to full capacity” [Paragraph 21: emphasis added].

Access to churches and cathedrals during lockdown

Following its meeting on 5 May, the House of Bishops issued a Statement announcing their backing of a phased approach to revising the access to church buildings. This included the now ubiquitous statement “the Bishops were clear once again that this is guidance – not an instruction or law”: a position now taken up by the Diocese of Rochester where, in an Ad Clerum on 23 March 2020, clergy had been reminded that “failure fully to implement these arrangements could be deemed to be a disciplinary matter”.

Further to this Statement, the Archbishops’ Council, Cathedral and Church Buildings Division issued Access to church buildings during lockdown: advice for incumbents, version 1,  6 May, and an updated version 2 on 7 May.

As indicated in the House of Bishops’ Statement, decisions on the timing of when to implement specific advice on ministers or worship leaders praying and streaming from their church buildings should be made by individual Diocesan Bishops, depending on their local situation. Our Coronavirus updates – index will continue to be updated with links to the latest changes in the legislation and guidance.

On the evening of 7 May, the media carried images of the Prime Minister lighting a  candle at Westminster Abbey ahead of VE Day celebrations. These images served to emphasize the role of buildings in acts of remembrance and worship and why, as one commentator observed, this could not have taken place in the kitchen of No 10 – a sentiment that was also captured in the post by Serenhedd James, Priests and palaces.

Attendance at funerals

This week, the BBC reported that a letter signed by 36 MPs was urging churches to allow “small funerals” to take place. Responding to the letter, the Reverend Dr Brendan McCarthy, the Church of England’s adviser on healthcare policy, said:

“The House of Bishops has been meeting frequently and advice is reviewed regularly and updated as circumstances allow. The Church of England has consistently stated that it will always ensure that, where requested, a priest is present to conduct a funeral service, either at a crematorium or at the churchyard.

Any suggestion that the Church of England is responsible for ‘direct cremation’ could not be further from the truth – that is against both Government guidance and the Church’s commitment to provide pastoral care for all.

The advice not to conduct funeral services in church buildings – and it is advice, not instruction – was given because of concerns about parishes having capacity to conduct funerals safely, including being able to deep-clean church buildings between services.”

Perhaps the Church’s FAQ “Can funerals still go ahead” might benefit from the inclusion of some of this information?

Covid-19 and the consistory courts

In our post Faculty petitions under the coronavirus restrictions we noted “[c]ases involving hearings are very rare and are likely to be postponed during the outbreak”. However, a recent exception was Re St Mary Andover [2020] ECC Win 4 on which Chancellor Ormondroyd reported:

“[9]. A hearing was held using ‘Zoom’ videoconferencing technology on 16 April 2020, pursuant to the court’s power to “hold a hearing and receive evidence… by using any other method of direct oral communication” (Faculty Jurisdiction Rules 2015, r18.1(2)(e)), and without objection. At the hearing, I was addressed by Miss Arlow of counsel on behalf of the Petitioners and heard evidence under oath from the Reverend Chris Bradish and Mr Neil Burton. Although I had invited a representative of the Victorian Society to attend the hearing, in the event no-one did attend.

I visited the church on 21 April 2020; consistent with government guidance on social distancing the church was simply left open for me and I visited alone without meeting or interacting with anyone at any stage of the visit. I am grateful to all parties for their assistance in making these novel arrangements work in a manner which was both safe and practically effective”.

The right to die at home?

On Tuesday, Lieven J handed down judgment in VE v AO & Ors [2020] EWCOP 23, in which the daughter, VE, sought an order that it was in the best interests of her terminally-ill mother, AO, to be allowed to leave the care home in which she was currently living and live with VE and her family. Lieven J said that, while the issue had originally been framed as a challenge to the deprivation of AO’s liberty under the Mental Capacity Act 2005 engaging Article 5 ECHR (right to liberty and security of the person), “as the matter progressed it became increasingly clear that it was really a case about AO’s best interests under the MCA and the proportionality of the interference in her family life under Article 8 ECHR” [3].

Lieven J made the order sought [43]. She started from “the basic proposition that most people would strongly wish to die with their family around them … Given the COVID-19 pandemic, the need to minimise the spread of the virus and the current Government guidance, if AO were to stay at [the care home], then the most contact that she would be likely to have would be one short visit from one family member at or around the time of her death” [35].

Senedd Cymru and Welsh Parliament names become law

Part 2 (sections 2 to 9 and Schedule 1) of the Senedd and Elections (Wales) Act 2020 came into force on 6 May 2020. The date is exactly one year from the scheduled date of the 2021 Senedd Elections. The National Assembly for Wales officially becomes Senedd Cymru and Welsh Parliament, commonly known as the Senedd. “The new name reflects the institution’s full status as a national parliament, with law-making powers and the ability to vary taxes”.

Other changes introduced in the Senedd and Election (Wales) Act include:

  • Lower the voting age to 16 at Senedd Elections.
  • Giving the vote to eligible foreign nationals at Senedd Elections.
  • Changes in the law relating to disqualifications which prohibit a person from taking up a seat in the Senedd.
  • To make the Electoral Commission funded by and accountable to the Senedd for Welsh elections.

The Senedd and Elections (Wales) Bill received Royal Assent and became law in January 2020. It is the first part of a Senedd Reform programme and is based on the recommendations made in the independent report of an Expert Panel on Reform.

RE syllabus in Wales

On Tuesday, the Welsh Government launched a consultation on proposed legislative proposals for the implementation of Religion, Values, and Ethics (RVE) within the Humanities Area of Learning and Experience in the Curriculum for Wales. The consultation seeks views on the proposed changes to legislation to support RVE as a mandatory part of the Curriculum for Wales. It includes proposals in relation to the development and application of agreed syllabus and denominational syllabus in different types of school. It will run for 12 weeks, closing on 28 July. Russell Sandberg contributed a guest post on the proposals.

COVID-19 in South Africa

In Mohamed & Ors v President of the Republic of South Africa & Ors (SA High Ct, April 30, 2020), Neukircher J, sitting in the Gauteng division of the High Court, rejected a challenge brought by a mosque, two its imams and some of its worshippers to the country’s lockdown order made under the Disaster Management Act 2002, which effectively required all places of worship to be closed down. The applicants asserted that it was obligatory to perform the five daily prayers in congregation and at a mosque, and though they admitted that their views were not held by the majority of Muslims, they argued that the lockdown order violated their constitutional rights to freedom of movement, freedom of religion, freedom of association and the right to dignity.

S.36 of the Constitution provides for the limitation of rights only “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors…” – very much along the lines of the limitations on rights permitted under the ECHR. Neukircher J concluded that given the serious threat of the pandemic “to every person throughout South Africa and their right to life, dignity, freedom of movement, right to access healthcare and their right to a clean, safe and healthy environment … I cannot find that the restrictions imposed are either unreasonable or unjustifiable and thus the application must fail” [With thanks to Howard Friedman].

Zoom backgrounds – Under the nodding ogee?

The BBC’s Empty Sets provides the opportunity to “give your video calls a makeover” with a selection of over 100 empty sets from its Archive. All that is required is to “[c]lick on an image to bring up a full quality downloadable version, right-click and select ‘Save image as…’, then set it as your background image in your video conferencing application”.

Whilst we sometimes feel that L&RUK is “Open all hours“, some of our reports of Parliament certainly feel like “Yes Minister“, whilst “Play School – windows” would have been more relevant if the presenters had referred to them as “through the Romanesque, Late-Perpendicular and Rose windows”.

Quick links

And finally…I

From an answer by the President of the United States on state restrictions on attendance in person at public worship:

“Or they’ll go in a field, some field, and they’ll be — they’ll have a good minister, pastor, or could be a rabbi, could be a person of faith, and what happens is, in some places — not in all places — I would say in most places they really sympathize. But I do.” [With thanks to Howard Friedman].

And finally…II

From Crimeline:

“If a judge says, ‘I can’t see you,’ it probably means that you have not enabled your video link. It used to have a different meaning. ‘I can’t see you’ was coded language for ‘You are inappropriately dressed for court’.  A variation on this occurred when a District Judge asked a white-suited solicitor for ‘just one Cornetto, please’.”



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