The week in which, amid some controversy, the Government began easing the lockdown in England…
Easing the lockdown
The Government published its plan for a gradual easing of the lockdown (which, it should be noted, applies only in England). In response, the Institute for Government produced a brilliant one-page graphic summarising a somewhat rambling and confused document, here. [With thanks to Dr Hannah White.]
Following the Prime Minister’s Address on coronavirus on 10 May 2020, the UK Government issued a further tranche of advice on the relaxation of some of the restrictions imposed during the initial phase of lockdown. Those relating to public places such as places of worship are unlikely to take place before 4 July, leaving church leaders little scope for comment at the present time. The Bishop of London, Sarah Mullally, commented, “We are examining what steps we will need to take to do so safely and are actively planning ahead in preparation”.
On 13 May, it was announced that five new ministerial-led taskforces had been set up to develop plans for how and when closed sectors can reopen safely in England, following the publication of the UK Government’s roadmap to rebuild Britain. Places of worship, including faith, community and public buildings with fall within the Ministry for Housing, Communities and Local Government, and the latest information indicated that if data indicated an appropriate level of safety, places of worship could be allowed to open in early July, although potentially private prayer in places of worship might be permitted before then. The Task Force first met on Friday 15 May, although this has not been widely reported.
As to the Church of England, the House of Bishops approved a phased approach, but only as far as “worship services with limited congregations” – and exactly how such services might be conducted was not detailed. There are a number of “common sense” precautions that might be taken, but whilst urban myths abound, there is very little sound science backing these rudimentary measures, on which significant disagreements may arise, such as those raised here.
The Catholic Bishops’ Conference of England and Wales issued a statement in which they said “The timing and the manner of the opening of churches touches profound sensitivities and spiritual needs. The Government’s document and statements fail to recognise this…In dialogue with the Government, the Catholic Church will continue its engagement in this process and has already submitted a detailed plan, in full accordance with public health guidelines, for churches to be opened for private prayer”.
On Thursday, Cardinal Vincent Nichols, Archbishop of Westminster, was interviewed on Radio 4’s Today programme in relation to the Government’s taskforce on reopening places of worship which met for the first time on Friday. He said “[it] needs an understanding that what goes on in places of worship is quite different from one to another … A personal, individual prayer in a Catholic church is not something that is much done in Pentecostal churches which tend to concentrate on big gatherings. It’s not what’s done in mosques, where people pray side by side. So we need a bit of differentiated thinking”.
A report in The Guardian suggested that Cardinal Nichols had implied that Roman Catholic churches should be allowed to reopen before Pentecostal churches or mosques, owing to their different styles of worship. However, from the transcript and recording of the interview, it appears to us that whilst he was indicating the different challenges faced by other faiths, which by implication make take a longer time to resolve, he was not suggesting that the Roman Catholic Church should have priority.
CPS analysis of the application of coronavirus legislation
On 15 May 2020, the Crown Prosecution Service (CPS) announced the finding of its review for the first 200 finalized cases under the coronavirus legislation up to the end of April. These comprised 187 cases under the Health Protection Regulations and 44 cases under the Coronavirus Act.
- The main criminal offence under the Coronavirus Act relates to potentially infectious persons who refuse to co-operate with the police or public health officers when they are required to be screened for COVID-19. No case of a potentially infectious person refusing to comply with a lawful instruction has yet been prosecuted.
- The legal test under the Regulations is whether or not someone has a reasonable excuse for being outside his or her home, which includes going to work, exercising or caring for the vulnerable: Regulation 6 applies to a person found outside his or her house without a reasonable excuse, and Regulation 7 applies to gatherings: for example, a person mixing in a large group from outside that person’s household.
The vast majority of prosecutions under the Regulations – 175 out of 187 – were charged correctly. Errors usually involved the Welsh Regulations being applied in England or vice versa. However, all 44 cases under the Act were found to have been incorrectly charged because there was no evidence that they covered potentially infectious people, “which is what this law is intended for”. The CPS review did not cover Fixed Penalty Notices (FPNs): according to the National Police Chiefs’ Council, 14,244 FPNs had been issued in England and Wales by 11 May.
Bride and Zoom continued
Last Sunday, 10 May, The Sunday Times reported that a petition had been launched to urge the Government to allow register offices to conduct the legal formalities online, via a video service such as Zoom. Martin Loat, chair of the Equal Civil Partnerships campaign which started the petition, was quoted as saying: “New York City has done it. The UK authorities must now accept that legal unions can be carried out online because showing up in person is not possible. We have vulnerable couples and NHS and frontline workers desperate to get a legal relationship in place.”
Unfortunately, just because “New York City has done it” doesn’t mean that it could be done in the UK without primary legislation. In her recent post on this blog, Rebecca Probert made a strong argument for amending the law to allow weddings to take place in England and Wales by videoconference “speedily and in a range of locations if one of the couple is terminally ill”. And when the issue came up on BBC Radio 4’s Westminster Hour last Sunday, Justice Secretary Robert Buckland said that he was giving “a lot of anxious consideration to the effect of the potential changes” to rules on marriage ceremonies, urging people to “watch this space, we’re working on it”. He was particularly concerned about those couples who wanted to get married “because things are happening in their life that means they might not be together for a long time.” The Government subsequently confirmed that it was “examining how to enable people [in England] to gather in slightly larger groups to better facilitate small weddings” when the second phase of lifting the lockdown begins – which, the Government says, will be not before 1 June.
Nevertheless, though the Government might be prepared to consider that particular situation as a special case, we cannot imagine that any more radical amendment of the Marriage Act 1949 is very high on its current list of priorities. And then there’s the issue of the separate legislation in Scotland and Northern Ireland…
And it is still possible to marry according to the rites of the Church of England or the Church in Wales by Special Licence, for which the Faculty Office has produced guidance: Emergency Marriages in hospice, hospital or at home (England and Wales). And see below,
Reduction in carbon emissions
On 12 May we posted Towards net zero carbon for churches, in which we examined the General Synod amended resolution committing it to work towards reducing its GHG emissions to net zero by 2030, and the new advice on The practical path to net zero carbon for churches. Coincidentally, the Church of England Environment Group met on Tuesday, the first meeting of the Group since the February Synod. On the following day, the Group tweeted “[w]e’re hosting a series of webinars to equip our Dioceses on their journey to #netzero carbon emissions…”. The times, topics and booking information are all available on the Church webpage at Webinars on getting to net zero carbon. Of particular interest is the fourth in the series of webinars 4. Defining and measuring net zero which focuses on “what we mean by net zero; what is in and out of scope. It also discusses ways we can start to measure net zero”.
Vicarious liability again
In FXF v Ampleforth Abbey Trustees  EWHC 791 (QB) – which we missed at the beginning of April – the Ampleforth Trustees admitted vicarious liability for sexual abuse carried out by Fr Damian Webb, a member of the Ampleforth Benedictine community; however, primary limitation expired in 1985 and Webb had died in 1990. FXF’s claim was not issued until 2017, 32 years after the expiry of limitation.
Lambert J weighed the reasons for the delay against the prejudice that it caused the Defendant and concluded that the prejudice outweighed the reasons for the delay. Though FXF genuinely believed that she had been abused, there were lapses in her memory and there were no contemporaneous records to fill the gaps. Because Webb was dead, the Ampleforth Trustees were unable to advance a positive case in rebuttal. Had FXF had a very strong case “this would have weighed heavily in the balance in her favour”  but the gaps in FXF’s evidence meant that this did not apply. Lambert J decided not to exercise her discretion under s.33 Limitation Act 1980 and, as a result, the claim was time-barred. [And see the link to Megan Griffiths’s article, below].
VAT and religion?
A question in our spam box which, as always, we junked: “I have started my business as 1 TRUE GOD ministry. Do I need to register for VAT? If so, how would I go about this?”
To which the short answer is – inevitably – “it all depends”. Does the business supply VATable services? If it does, is its turnover above the VAT registration threshold, currently £85,000? But we aren’t accountants: if the person who asked the question is reading this, we suggest that she consult one.
Ecclesiastical Law Journal Vol 22(2) – May 2020
The latest issue of the Ecc LJ is now out: online only. As well as the usual case-notes and reviews, it includes:
- Christopher Grout, ‘The Seal of the Confessional and the Criminal Law of England and Wales’.
- Peter Collier ‘Safeguarding in Church and State over the Last 50 Years: “From Ball and Banks to Beech via Bell”’.
- Idowu A Akinloye, ‘Legal Disputes Involving Clergy Discipline: Perspectives from Nigeria and South Africa’.
- Andrew Hambler ‘Beliefs Unworthy of Respect in a Democratic Society: A View from the Employment Tribunal’.
- Christopher Hill, ‘The Caroline Divines and the Church of Rome: A Contribution to Current Ecumenical Dialogue – A Review Article’.
Ecclesiastical Law Society YouTube
On 14 May, the Ecclesiastical Law Society launched a YouTube channel, comprising three sections: a series of interviews with people both from the Ecclesiastical Law Society and from the wider world of ecclesiastical law; a repository of videos to help with training in ecclesiastical law; and video recordings of some lectures, where the lecturer is happy to give permission. We were pleased to participate in a brief unscripted interview on the L&RUK blog. Other material currently available includes an introduction to the Ecclesiastical Law Society and its YouTube channel by the Revd Russell Dewhurst, the Ven Simon Baker on the work of the ELS Education Committee and Professor Norman Doe on the LLM in Canon Law at Cardiff University.
Call for papers
British Journal of Religious Education: abstracts are invited for a special issue on “Religious Education, Law and the Judiciary: National, International and Supranational Perspectives”. Deadline for abstracts, 31 May: details here.
- Rajnaara Akhtar, Electronic Journal of Islamic and Middle Eastern Law: Non-Legally Binding Muslim Marriages in England and Qatar: Circumventing the State.
- Church of England: Notice from House of Bishops meeting.
- Church of England in Parliament, Week in Westminster, 11th-15th May 2020.
- Rosalind English, UK Human Rights Blog: The latest critique of the Coronavirus Act 2020.
- Lawrence Freedman, Survival: Strategy for a Pandemic: the UK and COVID-19: the full text is downloadable from the blog page – absolutely essential reading on the Government’s response to the pandemic.
- Megan Griffiths, 12 King’s Bench Walk: Limitation in historic sex abuse claims: recent decisions on the exercise of section 33 of the Limitation Act 1980.
- Chloe Kerr, The Sun: Vicar gets special permission from Archbishop of Canterbury to wed couple in garden: not a source we often quote, but worth a read.
- Chris Sloggett, National Secular Society: Scotland’s new hate speech law will be too censorious: argues that though the Hate Crime and Public Order (Scotland) Bill will abolish blasphemy, the new range of “stirring up hatred” offences is dangerously vague in its application. In a highly unusual alliance, the Christian Institute has said something very similar.
- Jonathan Sumption, The Times: Lockdown challenges face tough audience: the recently-retired Justice of the Supreme Court argues that, on balance, the courts would be unlikely to side with an applicant for judicial review.
- UK Human Rights Blog: three linked articles on COVID-19 and human rights:
- Francis Hoar: A disproportionate interference: the Coronavirus Regulations and the ECHR: 21 April.
- Leo Davidson: The Coronavirus lockdown does not breach human rights (Part One): 30 April.
- Dominic Ruck Keene: Leviathan Challenged — the lockdown is compliant with human rights law (Part Two): 11 May.
Spent the night working out the new rules. Think I’ve got it: we can play cricket with a close family member in a garden centre after work, but preferably not on a bus. Close?
— Gary Lineker (@GaryLineker) May 11, 2020
Le masque: “In France, at the moment, a woman who wanders in niqab risks a fine of €165, but she risks at the same time, by complying with this law, a fine of €135 by appearing in the subway without mask.”