Law and religion round-up – 28th June

And in the week in which we both managed to post on the same topic within a minute of each other…

… although by chance they were complementary, written from our respective points of view, here and here, and both relating to…

Opening of places of worship for services in England and Wales

On 23 June, the Prime Minister made a statement in the Commons on coronavirus which included an update on the opening of places of worship from 4 July. Had this been more pellucid, much of the subsequent “clarification” by Government and church bodies might have been unnecessary. However, some of the guidance was ambivalent and certain statements even added further confusion; in answer to a Question for short debate in the Lords on Covid-19: Wedding Venues on 24 June, Lord True, the Minister of State at the Cabinet Office, said: “People should still avoid having a large ceremony and should invite no more than 30 close family members and friends.”

Legally, there must be five people at a wedding: the officiant, the couple to be married and two witnesses – in addition to provision for potential objector(s) – which would leave room for only 24 or 25 “close family members and friends”. We assume that Lord True does not expect wedding planners to apply Matthew 22:14 in these circumstances. Our two posts attempted to address some of the confusion, although we await further amendment to the principal Regulations, SI 2020/350, for clarification.

On Thursday 25 June, the Roman Catholic Church in England issued a Message from the Metropolitan Archbishops of the Catholic Church in England; the issue of opening places of worship in Wales is devolved to the Welsh Assembly, which is still evaluating their position. The message stated [emphasis added]:

“[I]t is important to reaffirm that, at present, the obligation to attend Sunday Mass remains suspended. A significant number of churches may remain closed as they are unable to meet the requirements for openingen for individual prayer. Fulfilling these requirements is a precondition for any church opening after the 4th July for the celebration of Mass with a congregation.”

As a consequence of the locally-determined limits on the number of people who can attend Mass,

“we therefore need to reflect carefully on how and when we might be able to attend Mass. We cannot return immediately to our customary practices. This next step is not, in any sense, a moment when we are going ‘back to normal’ … Our priests may need to consider whether it is possible to celebrate additional Masses at the weekends. Given there is no Sunday obligation, we ask you to consider the possibility of attending Mass on a weekday. This will ease the pressure of numbers for Sunday celebrations and allow a gradual return to the Eucharist for more people.”

It encouraged parishes, wherever possible, to continue live-streaming Sunday Mass, both for those who remain shielding and vulnerable and also for those unable to leave home because of advanced age or illness. It also noted that “[f]or the time being, there will be no congregational singing and Mass will be shorter than usual”.

An indication of future arrangements in the Church of England was given in the Bishop of Oxford’s Ad Clerum of 25 June, which said:

“The detailed guidance from the government is still in preparation. Updated guidance from the national church will need to follow. It may, therefore, be several days before you have all the information you need to begin to plan for physical services to start again”.

In advance of the guidance, Bishop Steven provided a useful overview: no congregational singing yet; Holy Communion in one kind (the House of Bishops’ guidance is here); social distancing of congregations and restrictions about the numbers who are able to attend, depending on the size of the building; shorter services (but possibly more of them); no refreshments or “long conversations at the door”; good hand hygiene; controlled movement throughout the church; and additional cleaning requirements.

Also on Thursday 25 June, the Church in Wales announced that subject to any updated guidance from the Welsh Government, it hoped to permit those churches with the resources to manage reopening safely to do so for funerals and weddings from Monday 6 July – but they will be subject to strict regulation in respect of numbers, physical distancing and hygiene. The Representative Body will issue further guidance on this during the course of this week. The announcement reiterated that no church will be required to open and that no cleric should feel pressured to do so at this time.

Petertide ordinations

One aspect of the lockdown period that has escaped the headlines is that of the Petertide ordinations – the Sunday nearest to St Peter’s Day on 29 June – which in the Anglican Churches is the major of the two traditional periods for ordinations, the other being Michaelmas, around 29 September. Church of England Guidance states:

“Ordinations are understood to be intentionally public occasions, even if tickets are used to control numbers in modern times. They should therefore take place only when public worship in churches and cathedrals is permitted and when and where it is safe for them to take place”.

This year, many prospective ordinands are being licensed temporarily as Licensed Lay Ministers (LLMs), as this may be undertaken via Zoom &c, with ordination to follow:

“Michaelmas seems the earliest practical date, with All Saints the most sensible alternative. If Stage 3 is reached on 4 July, the feasts of the Transfiguration (6 August) or the Blessed Virgin Mary (15 August) are earlier dates when ordinations may be possible.”

Music in churches

A recurring question in our Comments and on Twitter concerns when music will be permitted in church services. On 13 June, the Church of England issued the Press Release Music in our churches and cathedrals, in which the Bishop of London, Sarah Mullally, said:

“We know that for church musicians this remains a difficult time, and many are anxious to know the date it will be possible to sing and play together again. The most recent guidance now allows for organ practice, providing the usual precautions on social distancing are observed, which will be of encouragement, yet before permitting choirs to resume the Government is awaiting the latest scientific and medical advice”.

This was echoed in this week’s Ad Clerum from the Bishop of Oxford, infra. On Thursday 25 June, in response to various questions on Church Services: Covid-19, the Second Church Estates Commissioner (Andrew Selous) said:

”Sadly, I have to tell [Michael Fabricant (Lichfield) (Con)] that singing and chanting are not allowed even at a distance, due to the additional risk of infection, and woodwind and brass instruments should not be used, but that still leaves many other instruments.”

Those who have been following the issue of singing and chanting might wonder on what basis the reference to “woodwind and brass instruments” was slipped in. It is known that work has been undertaken on the transmission of droplets through singing and with various musical instruments, but in the present state of uncertainty, we will not make further comment – there are enough urban myths being circulated in this area already.

At the RSCM webinar on 22 May, reported in our post Music, musicians, and the congregation we referred to the detailed review of the scientific considerations given by Dr Charlie Bell (National Clinical Fellow at the Health and Social Care Committee of the House of Commons. Fellow and Lecturer, Girton College, Cambridge). He stressed that in the absence of definitive science, it was “risk” that was being assessed, and a number of scenarios can be constructed. These “risk assessments” might be specific to certain circumstances, or be so general that would necessary to supplement them with site/situation information before they could be applied. From what is known, certain measures are advisable, whilst others are not so; different advice might be necessary for different situations.

Until more definitive guidance is available, places of worship are reviewing how music might be incorporated in their services, on the basis of the limitations of the building and the musical resources available. On this last point, it is one thing for a particular situation to be perceived as “low risk”: it is quite another for the choristers to feel sufficiently comfortable to be willing to sing under these circumstances.

Brexit and the GDPR

The European Commission has published a Communication on Data protection as a pillar of citizens’ empowerment and the EU’s approach to the digital transition – two years of application of the General Data Protection Regulation. On the GDPR post-Brexit, it says this:

“Adequacy also plays an important role in the context of the future relationship with the United Kingdom, provided that the applicable conditions are met. It constitutes an enabling factor for trade, including digital trade, and an essential prerequisite for a close and ambitious cooperation in the area of law enforcement and security. Moreover, a high degree of convergence in data protection is an important element for ensuring a level playing field between two so closely integrated economies. In line with the Political Declaration on the Future Relationship between the EU and the UK, the Commission is currently carrying out an adequacy assessment under both the GDPR and the Data Protection Law Enforcement Directive” [emphasis added].

No surprise there, then.

Divorce, Dissolution and Separation Act 2020

The Divorce, Dissolution and Separation Bill received Royal Assent on 25 June. The Act has now been posted on legislation.gov.uk.

Same-sex religious marriage in Northern Ireland

In answer to a Written Question [59919] from Colum Eastwood (Foyle, SDLP) about discussions with Northern Ireland’s First and Deputy First Minister on plans to legislate for same-sex religious marriage, Robin Walker, Parliamentary Under-Secretary of State at the Northern Ireland Office replied as follows:

“The Secretary of State for Northern Ireland has not had any recent discussions with the First and deputy First Minister specifically on plans to legislate for same-sex religious marriage.

The Northern Ireland Executive is aware of the duty that the Government is under in section 8 of the Northern Ireland (Executive Formation etc.) Act 2019, which led to the making of The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019. These Regulations came into force on 13 January and legalised same-sex civil marriage and opposite-sex civil partnerships in Northern Ireland.

We have been clear that there were two remaining areas we are committed to delivering on – same-sex religious marriage and conversion entitlements – following publicly consulting on these two issues earlier this year. We will continue to work closely with the Northern Ireland Civil Service, following confirmation from the Minister for Finance, Conor Murphy MLA, that the working relationship with his officials should continue. We intend to make regulations on same-sex religious marriage as soon as possible before the end of 2020 to provide similar rights and protections to the law in other parts of the UK.”

Law Commission wedding law review

The Law Commission has updated its website with an announcement about its consultation paper on provisional proposals for reform of wedding law in England and Wales and questions for consultees. In light of the COVID-19 pandemic, the process has been delayed; and the Commission now plans to publish the consultation paper and launch the consultation in September 2020.

Charity Commission: Christ Church, Oxford

On 24 June, the Charity Commission issued the Press Release, Christ Church Oxford required to undergo mediation by charity regulator, which stated that it had told both sides in the dispute enter into a mediation process. The Commission expressed its concern that “the very protracted and public dispute between the College’s governing body and its Dean is damaging to the reputation of the charity, and affecting its ability to govern itself. The situation risks harming the reputation of charity more generally, in the eyes of the public”. It further stated:

“Both parties in this dispute have called on the Charity Commission to intervene further. However, any regulatory intervention can be effective only if relationships between all parties are stable. The Commission has therefore today told the parties to the dispute that it expects them to enter into formal mediation within a limited time frame, with a mediator selected by the Commission, and without delay.”

The Commission indicated that it would not comment further on the case until the mediation has been completed, and neither will we at L&RUK. The Commission has also asked both sides to refrain from public or private commentary whilst the mediation process takes place – nevertheless, Christ Church did precisely that, issuing a statement about mediation on the following day.

The Church of England has issued a Press Release, Church Times letter – Christ Church, Oxford, in which the Rt Revd Jonathan Gibbs, Bishop of Huddersfield – the Church of England’s lead safeguarding bishop – stresses that “the National Safeguarding Team has no view about, and is not involved in, the wider issues relating to the College and the Dean…There is no agenda behind this and we hope that with the cooperation of all concerned this matter can be concluded quickly.”

DCMS consultation on volunteering

Danny Kruger, MP for Devizes, has been asked by the Prime Minister to work with Baroness Barran to consult on how to maximise the role of volunteers, community groups, faith groups, charities and social enterprises. With regard to faith groups, the consultation will look specifically at “the contribution of faith groups in strengthening social capital and community resilience”. The deadline for the consultation is Friday 24 July – but with whom they are consulting and whether there will be any scope for public submissions, we just do not know.

Quick links

And finally… I: parliamentary drafting

The first thing that we normally want to know after the contents page and Long Title is the definitions of terms used in the legislation. So why do they normally put them at the end? (The draftsmen in Dublin normally put the definitions at the beginning: see, for example, Ireland’s Data Sharing and Governance Act 2019.) [With thanks to Paul Magrath.]

And finally… II

… but the good news is that there’s no room for the objector either

5 thoughts on “Law and religion round-up – 28th June

  1. Drafting Guidance: Whether an interpretation section should be at the beginning or end of an Act was considered by the Renton Committee in 1975 (The Preparation of Legislation, Cmnd.6053 at paras.11.14 & 18.17). The traditional practice is supposed to be dictated by parliamentary procedure: what definitions are needed cannot be known until the substantive provisions have been passed. Renton came down, without much conviction, in favour of this practice. The legislature of the Isle of Man, incidentally, has recently gone over to placing the short title, interpretation and commencement provisions at the beginning of an Act.

  2. Thanks for the link to the Drafting Guidance published by the Office of the Parliamentary Counsel. I was immediately reminded of the excellent and demonstrative guidance at para 1.2.5 “Avoid double negatives wherever it is not impossible to do so” when reading Reg 5 of the Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 when they were issued on Friday 3rd June, less than 12 hours before they came into force removing the restrictions on opening churches.

    It reads
    5.—(1) During the emergency period, unless paragraph (3) applies, no person may participate in a gathering which—
    (a) consists of more than thirty persons, and
    (b) takes place—
    (i) in a private dwelling, including a houseboat,
    (ii) on a vessel, other than a houseboat or a vessel used for public transport, or
    (iii) on land which satisfies the condition in paragraph (2).
    (2) Land satisfies this condition if it is a public outdoor place, which is not—
    (a) operated by a business, a charitable, benevolent or philanthropic institution or a public body as a visitor attraction, or
    (b) part of premises used for the operation of a business, charitable, benevolent or philanthropic institution or a public body.
    (3) This paragraph applies where—
    (a) in the case of a gathering described in paragraph (1)(b)(ii) or (iii)— … etc.”

    Count the negatives: “unless para 3 applies”,”no person”, “other than”, “which is not”.

    This is a piece of legislation which affects every man, woman and child in England, every church, every business. From my reading of Reg 5, it does not say what most have been expecting from Government announcements, namely that there would be a 30 person limit on people at a wedding. That has made my scrutiny at any rate of Reg 5 more anxious than usual (I am a churchwarden and retired solicitor). I am deducing from the posts elsewhere by John Stevens (of FIEC) that the government is expecting to enforce that through Health and Safety legislation and the requirements of insurers.

    • Indeed: words like “mud” and “clear” come to mind.

      Part of the problem is that secondary legislation is only very rarely drafted by Parliamentary Counsel: it’s almost always produced by departmental lawyers, who have other things to do with their time as well as draft.

      Parliamentary Counsel (who, I reckon, are just about the cleverest bunch of people in Whitehall) don’t normally make mistakes – or if they do, it’s because the draft instructions that they’ve received from the relevant Department haven’t been sufficiently clear. In this case, however, I suspect it’s been departmental lawyers doing a very difficult piece of drafting against severe time-constraints.

  3. Pingback: Coronavirus updates – index | Law & Religion UK

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