In which The Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 SI 2020/828 finally limped into view…
… five days after the North of England lockdown was first announced, giving only hours to read the 17-page Regulations and 6-page Explanatory Memorandum before they came into force. Commentators were quick to spot that the Regulations make sex between two (or more) people in a private place who do not live in the same household a “gathering” between two or more people and therefore illegal.
Wearing face coverings In England from 8 August
Regulations on the wearing of face coverings in England were first introduced through the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 SI 791; the associated use during services was reviewed in our post Regulations on face covering: Advice from Church of England, (23 July).
On 31 July, the Prime Minister has announced plans to make face coverings mandatory in places of worship from 8 August and withdrew guidance to permit indoor professional performances with immediate effect, Face-coverings in places of worship: update, (31 July). The Church of England responded by updating its Coronavirus (COVID-19) guidance for churches, and at 10:21 on 7 August issued interim revisions to ten sets of its guidance, in anticipation of the new legislation and “confirmation of the exact wording of government guidance for places of worship on the use of face coverings”.
The new legislation and explanatory memorandum were issued on the afternoon of 7 July, but neither contains the necessary detail in relation to the conduct of marriage and other services. The DHSC Guidance Face coverings: when to wear one and how to make your own, (updated on 7 August) has a non-exclusive list of scenarios of when one is permitted to remove a face covering, including those delivering a sermon or prayer in a place or worship and persons getting married in a relevant place.
However, at the time of writing the MHCLG document COVID-19: guidance for the safe use of places of worship during the pandemic had not been updated from the 4 August version.
Wearing face coverings In Scotland from 8 August
There is also new legislation in Scotland on the wearing of face coverings: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 10) Regulations 2020 SSI 236, for which there is an accompanying Policy Note. The Regulations, which were effective as from 8 August, are more prescriptive than those in England and leave less to interpretation via guidance. They provide that a person responsible for a place of worship inter alia must ensure measures to reduce the risk of coronavirus are taken where reasonably practical. These persons must take any other measures, where reasonably practicable, for the purpose of minimising the risk of the incidence and spread of coronavirus on the premises, and gives a non-exhaustive list of examples of what these measures might be, including: installing barriers or screens; providing or requiring the use of personal protective equipment, controlling the use of shared facilities such as toilets and kitchens; changing the layout of premises including the location of furniture and workstations; and providing information to those entering or working at the premises about how to minimise the risk of exposure to coronavirus.
The Regulations specifically exclude face shields from the definition of a face covering, include funeral directors premises, and are not applicable to a child who is under the age of 5. The requirement for wearing of a face-covering does not apply inter alia in a place of worship or to a person leading an act of worship where there is a partition between that person and any other person and a distance of at least two metres is maintained between that person and any other person. Similarly at a funeral, marriage ceremony or civil partnership registration.
Registration of births, deaths, marriages and civil partnerships
In response to a Written Question [HL7029] from Baroness Blackstone on progress on plans for an electronic system of marriage registration, adding mothers’ names to marriage certificates, allowing conversions between opposite-sex marriages and civil partnerships and bringing into force reforms to divorce, dissolution, and separation, Baroness Williams of Trafford answered as follows:
“The Home Office is currently working on implementation plans to introduce the provisions in the Civil Partnership, Marriages and Deaths (Registration Etc) Act 2019. This will facilitate the move to an electronic system of marriage registration and the update of the marriage entry to include the names of both sets of parents of a couple.
The Government Equalities Office ran a six-week consultation on the future of conversion rights in summer 2019. We are analysing the responses and will publish the government response and bring forward any necessary legislation in 2020.
The Divorce, Dissolution and Separation Act received Royal Assent in June. The Government has been clear implementing its reforms will be a significant and complex task. Given the scale of the work needed, we are working to an indicative timetable of Autumn 2021.”
Same-sex marriage in Northern Ireland
On Thursday 30 July, in reply to a Written Question from Jim Wells MLA (Ind, South Down) asking why the General Register Office had written to all Churches informing them that their right to perform marriage ceremonies could be withdrawn, the Minister of Finance, Conor Murphy, said this:
“On 1st September, the British Government laid Regulations introducing religious same-sex marriage. The General Register Office (GRO) incorrectly advised that all registered churches must confirm what types of marriages they wish to carry out. This was an error as only new churches registering need to advise GRO of their position. The current registered churches must advise GRO if they wish to carry out same-sex marriages. All churches currently registered have automatically been opted out of same-sex marriage until GRO is advised differently. A letter of unreserved apology has been sent to all churches.”
A Special Session of General Synod is to be held on 24 September 2020 when it is anticipated that the sole item of business will be the General Synod (Remote Meetings) Measure which will make provision enabling remote meetings (See David Lamming’s Comment, below). 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: “[t]he draft Measure requires that any special standing orders made under it are subject to approval by the General Synod at its next 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.
For further details see Peter Owen’s post on Thinking Anglicans: Special Session of General Synod on 24 September 2020, and the update in David Lamming’s Comment.
Church of England (Miscellaneous Provisions) Measure 2020
The Church of England (Miscellaneous Provisions) Measure 2020 Commencement (No. 1) Order 2020 brings into force the Church of England (Miscellaneous Provisions) Measure 2020 on 1 September 2020 “so far as not already in force, except for sections 1(4) and (5) and section 8”. Under section 16 of the Measure, s.16 and ss.12 to 15 (validity of lease, minor amendments on pensions, updating and minor corrections) came into force on the day on which this Measure was passed: 16 March 2020. Sections 1(4) and (5) relate to members of religious communities and section 8 concerns parochial registers.
Vicarious liability in Newfoundland
In John Doe (G.E.B. #25) v The Roman Catholic Episcopal Corporation of St John’s, 2020 NLCA 27 (CanLII), the Court of Appeal of Newfoundland and Labrador concluded that the Archdiocese was vicariously liable for the sexual abuse of the appellants by the Christian Brothers running the Mount Cashel orphanage in the 1950s and allowed their appeal on that issue:
“The Archdiocese exercised its authority over the Brothers and the orphanage in many ways, but it also provided the Brothers staffing Mount Cashel with the power, environment and tools to carry out their wrongdoing virtually undetected, while they were supposed to be carrying out the Archdiocese’s legitimate objectives of caring for and educating the appellants. The link between the Archdiocese’s introduction and perpetuation of the risk of harm and its manifestation is strong. The Brothers’ sexual assaults of the appellants at Mount Cashel can fairly be regarded as sufficiently connected with the Brothers’ assigned tasks in caring for the appellants and running Mount Cashel orphanage to justify the imposition of vicarious liability” .
However, it confirmed that the Archdiocese was not vicariously liable for the alleged negligence of one of its priests, Monsignor Ryan, whom the Archdiocese had assigned to live at the orphanage as the spiritual adviser to the Brothers. The appellants had claimed that Ryan had been told about the Brothers’ sexual abuse of the residents but had failed to take any action.
- Congregation of the Doctrine of the Faith: Response on the validity of Baptism conferred with the formula “We baptize you in the name of the Father and of the Son and of the Holy Spirit”, 6 August: the CDF says “No!”.
- ECtHR: Information Note on the Court’s Case-Law 241: June 2020.
- ECtHR: Information Note on the Court’s Case-Law 242: July 2020.
- Gabriel Kanter-Webber, Gabrielquotes: 12 things the Mishnah has to say about Covid-19: a Talmudic take on the pandemic and self-isolation.
- James Loeffler, The Atlantic: The Problem With the ‘Judeo-Christian Tradition’: on its inadequacies as “a unifying principle for an American human-rights agenda” (or presumably, for that matter, anyone else’s).
- Andrew McGowan, Journal of Anglican Studies 18(1): Communion and Pandemic: on the suspension of public worship in the C of E.
- NERVTAG: Assessment of transmission of COVID-19 through musical events: aper prepared by the New and Emerging Respiratory Virus Threats Advisory Group (NERVTAG) for the meeting of the Scientific Advisory Group for Emergencies (SAGE) on 16 July 2020.
- Michael J Perry, Human Rights Quarterly 42 (2020) 434–478: The Morality of Human Rights.
- SCOTUSblog: Symposium on the Roberts court and the religion clauses: a series of essays (two still to come) in which commentators “analyze major decisions from the 2019-20 term and look to the future of the court’s religion jurisprudence”.
- Marco Ventura, Talk About: Law and Religion: Conversation: Digitalization of religion in times of COVID-19.
- Shaun Walker, The Guardian: The last of the Zoroastrians: hardly anything to do with “law”, but fascinating stuff.
“SIR – You report that the church at Okeford Fitzpaine intends to remove the Victorian pews because the modern human body is more generously proportioned.
Anyone who holds this view has never seen a picture of Queen Victoria’s bloomers.