Law and religion round-up – 30th August

The content of this week’s round-up has not been influenced by an algorithm, mutant or otherwise, nor has it been fomented by “activist lawyers”

Bellringing and COVID-19

The most recent guidance from the Central Council of Church Bellringers was last updated on 21 August and has not changed from the previous week. The CCCBR’s current guidance for running safe ringing sessions is here. However, as the CCCBR itself acknowledges, though its guidance has been reviewed by Public Health England, it only applies, strictly speaking, in England itself. The Scottish Association of Change Ringers has published its own guidance for ringing in Scotland, here. It notes that “In its present form the CCCBR advice is definitely not acceptable in Scotland because it is working on a distancing that is smaller than – currently – allowed here”. The Scottish Government is still recommending two-metre social distancing – which is difficult to achieve in some ringing-chambers even if you only ring alternate bells.

Singing and COVID-19

On Monday we posted Aerosols and droplets in church – breathing, speaking, shouting and singing in which we summarized the guidance which has been issued by various bodies: the Church of England’s COVID-19 Advice on the Conduct of Public Worship, version 2.2 , 17 and19; resources produced by the Royal School of Church Music (RSCM); the MHCLG guidance COVID-19: guidance for the safe use of places of worship and special religious services and gatherings during the pandemic; the Department for Digital, Culture, Media & Sport (DCMS) guidance Working safely during coronavirus (COVID-19): Performing Arts; and the preprint of PERFORM trial.

Although the question in many people’ minds is “Is it safe to restart singing”, the issue faced by those responsible for singing is in fact “How can we minimize the risks of singing”; there is no unique solution, and account must be taken of local circumstances by undertaking a risk assessment.

Full immersion baptism and COVID-19

Following the earlier discrepancies between the Wales and England in the treatment of pipe organs, this week the Church Times carried the headline Baptism by immersion stops at the Welsh border; the Church in Wales Bench of Bishops advises against any baptism by total immersion in the current circumstances and is unaffected by the regulations. However for faith groups for whom this is an issue, the Welsh Government guidance advises that only one baptism should be allowed per session, and the water should be drained and the baptistery cleaned. Its interpretation of physical distancing requires that baptisms should be by self-immersion, and no one should be baptised by another person, with exception of a member of their own household. “Anyone else present should stay out of range of any potential splashing”.

Church of England guidance was updated last week to reflect the change in Government guidance concerning full immersion baptism from 21 August. The updated FAQ. Can we do full immersion baptisms?, indicates that this is possible providing specific measures are taken.

COVID-19 Coronavirus: legislation and guidance

Having transferred the material from the earlier Coronavirus updates – index post to COVID-19 Coronavirus: legislation and guidance on 20 August 2020, this week we have add a further nineteen items from our updates in New COVID-19 legislation and guidance: to 29 August. In addition, we have begun to rationalize the existing entries of legislation, which we had been added in chronological order, as they appeared on the government web pages.

We have now started to group the secondary legislation into that which is generally applicable and that relating to a specific lockdown area. Some of the early regulations and the associated amending regulations have now been revoked; we have removed the reference to these provisions but added appropriate links in the description of the SI making the revocation. For those wishing to identify the current provisions, this should simplify the scanning of the legislation, whilst retaining access to the early documents for those who wish to follow the developments in the legislation.

Employees targeted by COVID-19 legislation

Whilst earlier COVID-19 legislation has targeted specific areas and postcodes where there has been a spike in coronavirus cases, in a new legislative development The Health Protection (Coronavirus, Restrictions) (Greencore) Regulations 2020 SI 2020/921 applies to the employees of, and other persons associated with, a single food wholesaler; they require persons who work at the specified premises or have worked there within the specified period, and members of their households, to self-isolate for the period of up to 14 days from the date when the Regulations come into force, or for a shorter period in certain specified circumstances. The tenuous law and religion link is the inclusion of this (ungrammatically-drafted) exception;

“4(8)(e)  on compassionate grounds, including to attend a funeral of—

(i) a member of P’s household; (ii) a close family member; or;

(iii) if no-one within paragraph (i) or (ii) are attending, a friend;”

Religion and fake COVID-19 protection kits

The Charity Commission has opened a statutory inquiry into The Kingdom Church GB over concerns about the charity’s management. It first opened a regulatory case into the charity after media reports that it was selling a “plague protection kit” which, it was claimed, would protect against COVID-19. Southwark Council had also opened a trading standards investigation into the sale of the kits. The Commission has since examined the charity’s records and has concerns about the accuracy of information provided by the charity about its income and expenditure. It had already intervened to ensure that the charity removed all known links to sales of the kits from its social media sites and is continuing to liaise with Southwark Council’s Trading Standards investigation.

Charity property and the duties of trustees

Arkengarthdale C of E Primary School closed last year after pupil numbers had fallen to five. Swaledale with Arkengarthdale PCC put the building up for sale with an asking price of £185,000. The Upper Dales Community Land Trust, with the backing of Arkengarthdale Parish Council, the Yorkshire Dales National Park and Richmondshire District Council, sought to buy it for £150,000 to convert it into affordable housing; however, the PCC sold it for £185,000 to an undisclosed buyer after it was told that, as a matter of charity law, it was obliged to sell to the highest bidder. The sale has caused considerable local controversy, but the PCC has said that, in effect, though it would have preferred it to have gone for social housing, its hands are tied.

Which, on our reading, they are. PCC members are charity trustees, charities are bound by charity law, and trustees have a fiduciary duty to act in the best interests of their charities and not otherwise. In making decisions, trustees’ wider religious or moral views can sometimes be legitimately accommodated – but not always. The Community Land Trust is in the process of registering as a charity in the hope that “this will free the Church from constraints it says forces it to sell to the highest bidder”: we shall see.

Classification and rationalization of churches in Sodor and Man

The financial consequences of the 3-month lockdown brought about by the Covid-19 pandemic have “taken altogether, been catastrophic for the diocese of Sodor and Man. On 6 August 2020, the Diocesan Strategic Review Group issued two documents: The Diocesan Strategy for Church Buildings 2020 and a Tool kit for the Mission Partnership Councils which seek recommendations on which the Implementation Group can place all of the church buildings into a category and align their decision making, and that of the DBF and other diocesan bodies, accordingly. The five categories are: hub churches; community mission churches; heritage churches; churches at a crossroads’; and marketable churches.

Whilst the Diocese is not typical of others within the Church of England, the progress of this initiative is likely to be followed closely.

Reviewing judicial review

Earlier this month, we reported the Government announcement that a panel chaired by Lord Faulks QC would “consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”. The review panel includes Professor Alan Page of Dundee University, and we wondered whether its scope would extend to Scotland.

To which, it appears, the answer is “Yes”: The Guardian reports that the Ministry of Justice has confirmed that the review would cover all the UK’s separate jurisdictions. The Justice Secretary has told Joanna Cherry QC that the review would examine “the balance of the interest of the citizen being able to challenge the lawfulness of executive action through the courts with the importance of the executive being able to govern effectively under the law”. In her reply, Cherry points out that “The authority and privileges of the Court of Session including its inherent supervisory jurisdiction are protected by article 19 of the Acts of Union and the underlying Treaty of Union.”

Falun Gong and asylum

In Appeal by Zuo Hui Xie against The Secretary of State for The Home Department [2020] ScotCS CSIH 52the appellant sought reduction of a decision by the Home Secretary refusing to treat certain further submissions made by him as a fresh claim for the purposes of Rule 353 of the Immigration Rules: in short, that he would be at risk of persecution in the event of being returned to China because of his practice of the Falun Gong religion. Permission for his petition to proceed had been refused at first instance by Lord Tyre and that refusal had been confirmed by Lord Drummond Young on an application for review.

An Extra Division of the Inner House rejected his appeal. In its view, his circumstances were not at all analogous to having to conceal one’s sexuality (as in HJ (Iran)) or having to pretend that one held political beliefs to appease an oppressive regime (as in RT (Zimbabwe)). Though the Chinese authorities perceived Falun Gong as a political movement, there was no material before the Home Office to justify the view that the practice of Falun Gong amounted to political activity: nor was there any pressure on Falun Gong practitioners to proselytise [16]. Further, the appellant’s evidence was that he practised Falun Gong only in private and “The fact that a person … may choose to conceal certain behaviour or beliefs, which do not on an objective analysis amount to expressions of political opinion, cannot amount to an infringement of any core human right” [17]. Appeal refused [20].

Quick links

And finally…I

For those returning to school next week (or those in Scotland who are already back), Regulation 2 of the Town and Country Planning (Use Classes) (Amendment) (England) (No. 3) Regulations 2020 provides a lesson in basic arithmetic (once pupils have decided when and where they must wear face coverings). The amendment corrects “a minor drafting error”, and replaces “280 metres square” (i.e. a square of area 78,400m², the area of 11 football pitches) with “280 square metres” (the Sunday Trading Act floor limit, the size of a tennis court). The Explanatory Note states that “[t]his instrument corrects that drafting error to make express what was already understood to be the effect of paragraph (a)(i)” – or as we ecclesiastical lawyers might say, “as any fule kno“.

[With acknowledgements to Rich Greenhill@RichGreenhill for alerting us to the error.]

And finally…II

The most popular names for babies born in 2019 were Oliver and Olivia, reports the BBC. Alexa, however, has fallen out of fashion “since the introduction of Amazon’s Echo, down from 332 in 2016 to just 39 in 2019”.

As in Alexa, can you tell me about the Vestiarian Controversy?

1 thought on “Law and religion round-up – 30th August

  1. Swaledale with Arkengarthdale PCC brings to mind Harries v The Church Commissioners for England [1992] 1 WLR 1241: trustees can be guided by ethical considerations so long as finances do not suffer and it is consistent with the objectives of the trust. Personally I cannot see that providing affordable housing is a statutory objective for PCC funds. Dioceses have the same challenge when faced with requests for glebe land (which must fund stipends) to be used for affordable housing. Save possibly on a rural exception site where no other development would be permitted.

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