The week in which the Royal College of Ophthalmologists may have considered relocating. But to be serious…
Legal challenges to lockdown
The UK Human Rights Blog reports that a businessman, Simon Dolan, is mounting a legal challenge to the Health Protection (Coronavirus) (England) Regulations 2020 (as amended). The letter before action summarises the grounds of the challenge as follows:
- that they are ultra vires s.45C of the Public Health (Control of Diseases) Act 1984, in that they are disproportionate and unlawfully fetter the Government’s discretion to consider less draconian measures; and
- that they are unlawful under the Human Rights Act 1998 in that the restrictions constitute a disproportionate breach of fundamental rights and freedoms in the ECHR. In particular, they contravene Articles 5 (right to liberty), 8 (respect for private and family life), 9 (thought, conscience and religion), 11 (assembly and association) and 14 (discrimination). It is argued that the measures also breach A1P1 (property – which Mr Dolan contends includes business interests) and A2P1 (education).
In a similar vein, The Telegraph reports that a group of “high-profile church leaders and bishops in the UK” has written to the Government seeking an urgent review of the ban on opening churches. In a letter before action which, it is reported, is supported by Christian Concern and the Christian Legal Centre” the group argues that the current restrictions are both unlawful and unnecessary – on very much the same grounds as Mr Dolan – and asks the Government to prioritise the reopening of churches as part of its exit strategy.
The US Supreme Court appears to have taken an entirely different view. On Friday, in South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, et al. 590 US ____ (2020), SCOTUS rejected by 5-4 a California church’s challenge to pandemic restrictions on attendance at religious services on the grounds that they violated the free exercise clause of the First Amendment. Concurring with the majority, Roberts CJ noted that
“Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States to guard and protect.’ … Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people… That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.” [With thanks to Jim Oleske, and see: Amy Howe, SCOTUSblog: Court declines to lift restrictions on crowds at church services.]
Churches during relaxation of lockdown
Further to our recent post on the prospect of churches moving towards holding “worship services with limited congregations”, A sage appraisal of COVID-19 reviews the scientific work which has been considered by the Scientific Advisory Group for Emergencies (SAGE) on the transmission and dispersion. We concluded that whilst there seemed to be qualitative confirmation of the value of much of the current advice on precautionary measures, there was only limited quantitative information on their practical application.
With regarded to the broader issues considered by SAGE, on 29 May, the Government issued a Press Release on the release of the minutes from the Scientific Advisory Group for Emergencies (SAGE) meetings 1 to 34 (200529). The minutes cover those from its first meeting to the meetings that took place at the beginning of May. “The minutes for meetings that have taken place after 7 May still contain sensitive information, with policy advice still under live consideration. These will be published in the coming weeks”.
Church halls and nursery provision
A recent update from the Diocese of Oxford reported that where a church hall is let to a nursery or pre-school provider, in line with Government guidance (see below), PCCs now have permission to consider allowing the reopening of their hall as of 1 June 2020 (this permission is, of course, subject to any changes to Government guidance). In making a decision, PCCs must be aware of the following points:
- As a business, the nursery provider is responsible for considering how best to operate in a way that is safe for its employees and those under its care. The key guidance to follow is here and here.
- The PCC should satisfy itself that: (a) the nursery provider is acting in accordance with the Government guidance; (b) both parties continue to be covered by their insurance policies; (c) responsibility for cleaning has been agreed, here.
- Until further notice, the nursery provider must be given sole use of the hall; no-one else should enter the church hall at any time. This includes members of the church community.
Relaxation of lockdown in England
Following the Prime Minister’s statement at the Downing Street press conference on 28 May, the Press Release PM: Six people can meet outside under new measures to ease lockdown stated that groups of up to six people will be able to meet outdoors in England from Monday 1 June, provided strict social distancing guidelines are followed.
The BBC reports that “each of the UK’s nations has a different approach – and timescale – to lifting the lockdown. England is the only nation to reopen primary schools to selected year groups on Monday. In Scotland, two separate households – up to a maximum of eight people – can meet outdoors and in Northern Ireland, groups of up to six people who do not live together can meet outdoors. In Wales, any number of people from two different households will be able to meet each other outside from Monday, but beauty spots will remain closed.”
In terms of the legislation permitting this relaxation of lockdown, The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020, and accompanying Policy Note came into force 29 May 2020, The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 5) Regulations 2020, WSI 2020 No. 557 (W. 129), come into force at 4.00 pm. on 1 June 2020, The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 SI 2020/558 come into force on I June 2020.
There is a helpful summary of the latest lockdown restriction in each of the four jurisdictions on the BBC website, here.
Latest guidance from the Church of England
On 28 May, the Church of England added a new Schools and Nurseries section to its Coronavirus (COVID-19) guidance for churches including FAQs: Can members of clergy and foundation school governors enter a school building? and when schools re-open can church buildings be used by schools as a place of worship or gathering? Whilst the answer to the latter remains “No”, the former states “ask the head”, and refers to the reader to Government advice Preparing for the wider opening of schools from 1 June (updated 25 May).
There was also an updated FAQ Should we still deliver printed communication? which stated:
“Coronavirus COVID-19 may live on paper and cardboard surfaces for up to 24 hours, and so any paper delivery represents a transmission risk. For this reason, parishes are encouraged to look to digital communication, and telephone calls to keep in touch.”
The URL link is to a letter to the Editor of the New England Journal of Medicine, (N. van Doremalen et al., “Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1,” N. Engl. J. Med., March 2020) one of the authorities cited in the report of the Environmental and Modelling Group of the Environment Agency to the Scientific Advisory Group for Emergencies (SAGE), Environmental influence on transmission of COVID-19, (28 April 2020).
Licensing drive-in movies and church services
Ofcom has announced that organisers of drive-in movies and church service events will be able to apply for temporary radio licences to allow film lovers and congregations to come together while still observing social distancing rules. On 27 May, it updated the licensing information for people or organisations who want to put on these types of events; these events need a ‘restricted service licence’, so people in their cars can hear the film soundtrack, or what is being said, on their FM car radios.
Given the coronavirus pandemic, Ofcom is waiving the usual 60-day notice period for licence applications. It will also process applications quickly so that it can provide an answer to applicants within two weeks of their application being received. It suggests:
“[t]hese events might be a way for communities and congregations to enjoy a film or to worship, while still observing social distancing. However, in granting any licence we are not authorising the event itself. Instead, licensees themselves must make sure their events are permissible under COVID-19-related laws and guidance.”
Law Commission reappointment
On Wednesday, the Secretary of State for Justice announced the reappointment of Professor Nick Hopkins as Law Commissioner for property, family and trust law for a five- year term from 1 October 2020 to 30 September 2025.
Census 2021 and religion
In answer to a Written Question from Lord Bourne of Aberystwyth about including Zoroastrianism as a religion in the 2021 census [HL4386], Lord True confirmed that there will be “a write-in option in the religion question, supported online by the new search-as-you-type function. Both the Government and Office for National Statistics recognise the importance of ensuring that everyone who wishes to identify as Jain or Zoroastrian will be able to do so”.
Which? reports that couples who have had to cancel their weddings because of the COVID-19 lockdown are having difficulty in obtaining refunds or suitable postponement dates. Obviously, a religious marriage does not normally take place in a commercial wedding venue such as a hotel – but the post-wedding reception frequently does.
Archaeology and COVID-19
Consistory court judgments involving developments where there is a possibility of discovering human remains or earlier church structures generally include a condition relating to archaeology. In the light of the coronavirus pandemic, the Department for Digital, Culture, Media & Sport has issued Guidance on searching for archaeological finds in England during COVID-19. However, apart from a section referring to the current Government advice on Staying safe outside your home before leaving your homes to search, which is generally applicable, there appears to be no further advice specific to archaeologists, metal-detectorists, field-walkers and mudlarks.
Turbans and truckers in Quebec
In a judgment of September 2019, Singh c Montréal Gateway Terminals Partnership 2019 QCCA 1494, the Quebec Court of Appeal dismissed the application of three Sikh lorry-drivers who challenged a company policy requiring them to wear a safety helmet over their turbans when they left their trucks to walk around port terminals, where they carry out part of their work. The Court of Appeal accepted the contention of the employers that the work environment of the terminals was inherently dangerous. It ruled that a health and safety policy intended to be as unintrusive as possible had to take precedence over a minimal and temporary impairment of freedom of religion and could be justified under the Quebec Charter of Human Rights and Freedoms.
That decision is now final: on 30 April the plaintiffs’ application for leave to appeal to the Supreme Court of Canada was dismissed by that Court without reasons. [With thanks to Langlois Lawyers LLP]
- Ronan Cormacain, UK Constitutional Law Association: Instinct or rules: making moral decisions in the Cummings scandal.
- Department of Health & Social Care: Two monthly report on the status of the non-devolved provisions of the Coronavirus Act 2020, 19 May 2020.
- Hansard Society: Coronavirus Statutory Instruments Dashboard: key facts and figures about the Statutory Instruments (SIs) being produced using the powers in the Coronavirus Act 2020 and other Acts of Parliament.
- Conor McCormick & Graeme Cowie, House of Commons Library: The Law Officers: a Constitutional and Functional Overview.
- Susan Miller, Historic Religious Buildings Alliance: Pewlets: on one way of dealing with excess pews.
- Siddique Patel, Family Law: Recognition of foreign marriage—implications of (Padero-Mernagh v Mernagh): on an interesting case involving bigamy which was dealt with at a remote hearing.
And finally… I
Scottish Legal News reports that Diageo, which owns Talisker (which, if you don’t know it, is distilled at Carbost in Skye) has been refused permission to trademark another malt as “Port Ruighe” (the Gaelic for Portree). The Douro and Port Wine Institute objected, arguing that using “Port” in the name of a whisky could lead to confusion and unfairly take advantage of the institute’s reputation – the whisky could benefit from the “exceptional reputation” of “Port” and “Porto”. The European Intellectual Property Office agreed with the Institute and overturned the original decision to allow the registration. A strange decision, given that there are a number of distilleries with “Port” associated with their name: Port Ellen (Islay); Port Charlotte (closed, but matures Bruichladdich whisky) (Islay); Port Dundas (closed, but formerly produced grain whisky); and North Port (Highland, closed).
Hmm: neither of us is a notorious drunk, but we can both usually tell whisky from port.
Regarding the SCOTUS judgment 5:4 to uphold a decision to deny interim injunctive relief pending trial of the substantive issue, I wouldn’t necessarily assume that the lower court will throw out the main suit, or that if it does, the same 9 Supreme Justices will still be in office by the time, perhaps years in the future, when the substantive case gets back to the SCOTUS, or a similar case.
Nice to see witchhunt-survivor Kavanaugh making himself useful.
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