Coronavirus and ecclesiastical law – I

From an early stage, we have reported the advice and updates on COVID-19 coronavirus from faith groups, government and others, links to which are included in COVID-19 Coronavirus: legislation and guidance. The following review considers aspects of ecclesiastical law and related provisions which have arisen, directly or indirectly, as a consequence the restrictions imposed by coronavirus-related legislation. Some of the  early concerns are no longer current; nevertheless, these have been included as an indication of the extent to which events during this period were impacted by the ecclesiastical law of the Church of England.

Background

On Thursday 26 and Saturday 28 March regulations were made across the UK which gave the police (and others if designated) powers to enforce the lockdown, a detailed analysis of which is given in the House of Commons Library Briefing Paper, Coronavirus: The lockdown laws:

“These significantly restricted people’s free movement by prohibiting leaving home without a “reasonable excuse” and banning all public gatherings (with some exemptions). The current lockdown laws in Scotland and Northern Ireland are amended versions of the original laws. England and Wales have replaced their lockdown regulations.

The new and amended laws mean there is effectively no “lockdown” in the UK anymore. Instead the UK’s lockdown laws are now focused on managing the risk of coronavirus and responding to local outbreaks. They provide limited restrictions on gatherings and businesses. New laws have been made which make wearing face coverings in some public spaces mandatory.”

Of particular importance in relation to faith groups are the provisions relating to “gatherings” and “social distancing”. Restrictions on the maximum number permitted in “gatherings” are laid down in statutory legislation, although in some cases, the wording resulted in a degree of confusion regarding its applicability, here. In England, the definitions on “social distancing” are within within “soft law” guidance, and in most cases there is no associated offence with the infraction of the recommendations; an exception is the participation in a gathering of 30 or more people where the guidelines on social distancing are not adhered to.

In this Part I , we consider the legislation and regulations in relation to time constraints imposed by ecclesiastical provisions. Part II will look at the impact of closure of churches on Church services, and social distancing and statutory limits on gatherings.

Time constraints imposed by ecclesiastical provisions

The restrictions relating to lockdown had an effect in three unrelated areas: on aspects of the governance of the Church of England; the criteria for marriage; and admissions procedures for some church schools. A common features is that whilst it was possible to undertake certain activities, such the licensing of lay readers remotely through a video link, others required the physical presence of those involved. PCC meetings and the working of the faculty jurisdiction were largely unaffected, as discussed in out post Faculty petitions under the coronavirus restrictions. The areas which were affected included:

Requirement to hold a church service, weekly, in parishes or benefices

On 17 March, the Church of England announced “Public worship will have to stop for a season. Our usual pattern of Sunday services and other mid-week gatherings must be put on hold”. In view of the legal requirements to hold such services, questions were asked regarding the legitimacy of such a decision. The advice posted by the Church of England stated:

“In normal circumstances, individual incumbents and parochial church councils would apply under Canon B 14A to bishops for dispensation from holding the public services required by the Canons of the Church of England. However, on the basis of legal advice, and in the light of the Government’s advice on preventing the spread of infection, we consider that the canon law doctrine of necessity can be relied on and that the public services required by the Canons need not – and should not – take place until further notice.

This advice covers the public services which the Canons normally require to be held every Sunday and on principal feasts and holy days (Holy Communion and Morning and Evening Prayer) as well as the weekday Daily Offices.”

At the time, senior ecclesiastical lawyers indicated that this application of the doctrine of necessity should not be regarded as the norm. The Guidance COVID-19 Restarting public worship: some legal questions and answers, issued on 30 June 2020 by the House of Bishops Recovery Group, states:

“Since 26th March, Government legislation has required all places of worship to kept closed except for a small number of specified uses that do not include public worship. On the 4th July this legislation will be repealed and the normal requirements of Canon law will come back into force, (footnote [1], infra )

[1].  Because the Canons give way to statute law, the canonical requirements for holding public worship have effectively been in abeyance. It is understood that the Government legislation requiring the closure of places of worship will be repealed with effect from 4th July. Once that happens, the canonical requirements in relation to the holding of public worship will come back into operation.

The Guidance reiterates “Canons B 11 and B 14…recently amended by Amending Canon No. 39…relaxed the former requirement that these services had to be held in every parish church.”

Annual Church Meeting and Annual Parochial Church Council Meetings

Annual Church Meetings (ACMs) for the election of churchwardens and Annual Parochial Church Council Meetings (APCM) for the election of the PCC, must both must take place between 1st Jan and 31st May each year. An early post Coronavirus: contingency planning and legislation noted that there is extant legislation empowers the bishop to extending the time for holding meetings, Section 10, Churchwardens Measure 2001, and Church Representation Rule 78(5). There is not currently provision for these APCMs to be held virtually.

In a subsequent post Coronavirus: contingency planning and legislation we noted that there is extant legislation empowering the bishop to extend the time for holding meetings: Section 10, Churchwardens Measure 2001, and Church Representation Rule 78(5). On 20 March, the Oxford Diocesan Secretary wrote to PCC and DCC secretaries concerning APCMs, including the signed instrument allowing changes to the current Church Representation Rules. The Bishop’s Instrument – Annual Meetings 2020 allows changes to the current Church Representation Rules to cover an extended period until 31 October (instead of 31 May). This covers the Meeting of parishioners to choose churchwardens, APCMs and the election of representatives of the laity to Deanery Synod. It extends the current term of existing appointees to the various roles. Our post Coronavirus – election of PCC and churchwardens initiated valuable comment and discussion,  and the subsequent guest post by David Lamming ‘Virtual’ PCC meetings and other Coronavirus-related issues.

The latter examines “the common misconception that the combination of Church Representation Rule M29 (business by correspondence) and rule 76 (communicating by email or post), coupled with the abolition of the former rule requiring each PCC to hold a minimum of 4 meetings a year and its replacement by a requirement to hold “a sufficient number of meetings to enable the efficient transaction of its business” (rule M23(1)), enables everything to be done by e-mail.”

[Update: Subsequent to posting, the Church of England revised its FAQ “What can we do about our Annual Church Meetings?” to include:

“You can now meet physically in a church or a church hall if the guidance for the safe opening of these buildings is followed and good physical distancing and hygiene measures are employed. If, exceptionally, that is not possible, another option is for the bishop to make provision modifying the procedure for annual meetings so that they can be held remotely using video conferencing software.  If you think you think you will need to meet remotely for your parish annual meetings you should contact your archdeacon.”]

General Synod Elections

The dilemma faced in May regarding the potential difficulties in holding meetings of Synod during the pandemic was considered in Law changes for next General Synod meetings: whilst it was possible for officers of Synod to exercise their powers under Standing Order 2(5)(b) and (7) to cancel the residential group of sessions scheduled to take place in York in July 2020, the Synod’s Constitution and Standing Orders did not currently at that time enable the Synod to meet remotely. It is therefore in a “Catch-22” situation since the usual means of amending them – by primary legislation in the form of a Measure and by the Synod passing amendments to its Standing Orders – was currently unavailable while it is unable to hold a physical meeting.

In the absence of legislation to enable the Synod to transact its business remotely, an informal online arrangement was established for members to discuss urgent matters and ask questions using one of the dates previously reserved for the July General Synod; however, this could not be regarded as a formal meeting of Synod.

In a separate initiative, changes were introduced under S84 Coronavirus Act 2020, (Postponement of General Synod elections) whereby:

“(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”.

At the meeting of the Privy Council on 20 May 2020, Her Majesty granted an Order for the postponement of General Synod Elections under the Coronavirus Act 2020, The General Synod of the Church of England (Postponement of Elections) Order 2020 SI 526. Consequently, the Inaugural Session of the new Synod will not take place until November 2021; existing members of Synod will serve for a further 12 months and that casual vacancies that arise before 13 July this year must be filled.

[Update, 8 August 2020

A Special Session of General Synod is to be held on 24 September 2020 when the main items of business will include the General Synod (Remote Meetings) Measure which will make provision enabling remote meetings. The draft Measure makes provision for the Synod to meet and transact business remotely, in accordance with special standing orders made for that purpose by the officers of the Synod. The draft Measure requires that any special standing orders made under it are subject to approval (with or without amendment) by the General Synod at its next (face-to-face) meeting. Any special standing orders automatically expire after 12 months unless that period is extended, or any expired standing orders are revived, by resolution of the Synod.

The Explanatory Notes state that the Business Committee will be requested to make provision in the Agenda so that all the Synodical stages for the Measure (First Consideration, Revision in Full Synod, Final Drafting and Final Approval) can be taken at the special session.]

Calling of Banns and “Qualifying Connections”

This is dealt with in detail in Delayed marriages in England and Wales.

Calling of Banns

As noted in Banns of marriage – their development and future, the reading of the Banns is the most commonly used “ecclesiastical preliminary” in Anglican church weddings in England and Wales; in England this is governed by sections 6 to 14 Marriage Act 1949, and section 13 of the Act applies in Wales as it does in England as a result of section 78 (Interpretation). A request for the calling of banns must be made to the minister of each parish where banns are to be called, which should be seven days in advance of the Sunday when it is anticipated that the reading of the banns will be commenced (section 8).

Banns must be called on three Sundays prior to the wedding at either the principal service or both the principal service and another service (section 7); the principal service is defined as that which, in the opinion of the clergyman or other person who, under section 9 of this Act, has the responsibility for publishing banns of matrimony, the greatest number of persons who habitually attend public worship are likely to attend, (section 7(1A)). Given that no public worship took place since during the period of lockdown, it was not been possible to call the Banns; the Faculty Office explained “Banns cannot be called via a ‘live-streamed’ or ‘virtual service’ to a wider digital community but with no congregation physically present nor by any form of ‘public notice’ on the door of a parish church”.

It is not necessary to call the Banns on three consecutive Sundays, and only the date of the third calling is of importance in the present context; where a marriage is not solemnized within three months after the completion of the publication of the banns (i.e. calling for the third time), “that publication shall be void and no clergyman shall solemnize the marriage on the authority thereof”, s12(2). That situation was reached during the initial lockdown, and when marriage was again permitted, the regulatory provisions required a minimum of four weeks between the notification of the clergyperson and the third reading of the Banns.

“Qualifying Connections”

The Church of England Marriage Measure 2008, as amended, extends the existing legal right to be married in a parish using a Church of England marriage service, to cases where one or both of the couple can establish a “Qualifying Connection” with the parish. Section 1(3)(a) to (e) of the Measure defines the criteria for establishing a Qualifying Connection, some of which are time-specific:

(b) that person has at any time had his or her usual place of residence in that parish for a period of not less than six months;

(c) that person has at any time habitually attended public worship in that parish for a period of not less than six months.

The equivalent measure in Wales is s2 Church in Wales, Marriage (Wales) Act 2010. In either case, where one or both of the couple are non-UK/EEA/Swiss Nationals,  the Superintendent Registrar’s Certificate (SRC) is the only marriage preliminary available. However there is normally a 28-day Notice period between the giving of Notice of Intended Marriage and the issue of an SRC;  once issued, an SRC is valid for twelve months from the date on which Notice was given.

On 18 March, Faculty Office guidance statesd[emphasis added]:

“Now that services have been suspended for a season, many couples who have not been able to attend for six months already will be concerned that they are unable to complete their ‘qualifying attendance’. However, where they have already started to attend and are only prevented from maintaining attendance due to the suspension of services, provided that couples resume as soon as services are able to resume, the ‘gap’ will still be capable of counting towards their ‘habitual attendance at public worship for six months or more’.

Where couples have been prevented from starting their attendance period due to the suspension of services, the situation is quite different as the six month period can only start from the date of the first actual attendance at public worship. If there is then insufficient time for couples to create the qualifying connection between services resuming and their intended wedding date, an Archbishop of Canterbury’s Special Marriage Licence is likely to be required. Whilst every application for a Special Licence is considered on its own merits, the Faculty Office will be very sympathetic where couples have shown a willingness and commitment to create a qualifying connection with their chosen church and have been prevented from doing so solely due to the suspension of public worship.

Although ‘attendance’ at any virtual or live streamed acts of worship cannot be said to be attending public worship sufficient to count towards a qualifying connection, couples are encouraged to participate in such services as are available in the parish through social media or other channels.”

Other ecclesiastical preliminaries

“Marriage by banns” is only one form by which, traditionally, marriage has been solemnized in the Church of England. Currently, four such routes are permissible under s 5 (Methods of authorising marriages) Marriage Act 1949:

The Church of England document COVID-19 Advice for clergy conducting weddings, v2 3 June (subsequently updated) suggested that with regard to the banns being read, and on the necessity for attendance to establish a connection if this was required, “[a] Common Licence or a Special Licence may be appropriate in some cases, or a postponement of the wedding for others”.

With regard to emergency weddings in hospital, hospice or at home, the Faculty Office indicated that it would continue to facilitate the issue of a Special Marriage Licence for a Church of England/Church in Wales wedding to proceed in a hospital, hospice or at home where one of the parties is terminally ill (whether through Covid-19 or otherwise). Any decision to proceed with a wedding in these circumstances will be one for the clergy and parties and will need to be based upon medical advice and with social distancing policies and guidance applied as regard the officiant and witnesses. The permission of the hospital or hospice authorities will always be required in writing. Clergy or others enquiring about a wedding in these circumstances are invited to use the contact form in the first instance for further advice.

Faith school admission arrangements

The Department of Education has issued the non-statutory guidance Faith school admission arrangements variation. Admission authorities for schools designated as having a religious character may use faith based oversubscription criteria in their admission arrangements and allocate places by reference to faith where the school is oversubscribed. Some define children’s or families’ membership or practice of the faith for this purpose through regular attendance at a place of worship over a specified period. Due to the coronavirus (COVID-19) outbreak, there have been restrictions on the opening of places of worship (especially for communal worship) and parents and their children may have been unable to attend their place of worship as normal. This has a potential impact on the admission arrangements have been affected for the September 2021 intake, and as a result, some admission authorities may need to seek a variation to their admission arrangements to ensure parents are clear on what they need to do to meet the relevant criteria.

The guidance is for admission authorities who consider that they will need to make changes to their admissions arrangements to account for the period where access to places of worship and/or to communal worship has been restricted as a result of the coronavirus (COVID-19) outbreak.

Cite this article as: David Pocklington, "Coronavirus and ecclesiastical law – I" in Law & Religion UK, 27 July 2020, https://lawandreligionuk.com/2020/07/27/coronavirus-and-ecclesiastical-law-i/

 

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