Law and religion round-up – 25th October

So, fingers crossed, we appear to be back in business…

The state of the blog

Since late September, there have been problems with some browsers when attempting to access L&RUK, and a security warning has been displayed instead of the padlock icon (lock icon) adjacent to the website address, indicating the secure “https” mode where communications between browser and web server are encrypted. Early in October, we took the decision to migrate the website to a different internet service provider (ISP), and through our IT consultant, the process of migration has been in progress. This has been a lengthy process in view of the size of the files associated with L&RUK and the involvement of a number of third parties in relation to various permissions required, in addition to the mechanics of the transfer and the subsequent testing.

At last, normal operation returned on Monday 20 October 2020. We have published a “catch-up” post which provides links to the L&RUK posts and Weekly legislation updates issued since 23 September which some readers may not have been able to view.

We should like to thank everyone for bearing with us during what has been a fairly stressful experience and, in particular, John Lagrue for managing the transfer to the new ISP. (Unfortunately, the problems with the site seemed to have almost no effect on the amount of spam that we received…)

Three new regional categories for COVID-19 restrictions in England

The past couple of weeks were dominated by the new regional COVID-19 restrictions for England announced to Parliament and in a televised press briefing on Monday 12 October. Since Wednesday 14 October, a new three-tier risk alert system for COVID-19 has been in place in England for the perceived infection risk in areas so designated: Medium (Tier One), High (Tier Two) and Very High (Tier Three).

On Monday 19 October, the Church of England issued an at-a-glance guide to the restrictions for churches, which will be amended as necessary when detailed Government guidance becomes available. This information sets out how the 3 Tier System of alert levels impacts on the main activities related to churches and provides links to the Government’s postcode checker to find out which Tier is applicable and the general description of the different tiers. Additional guidance on the activities listed is available on the Church of England’s national coronavirus webpage.

Coronavirus circuit break: Wales

A short, sharp “circuit breaker” or “fire-break” was introduced across Wales at the end of the week to help regain control of COVID-19. The Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020 put in place a series of restrictive measures from 6 pm on Friday 23 October until the start of Monday 9 November 2020. Our mid-week post, Coronavirus circuit break: Wales, containing extracts from the Guidance: Coronavirus circuit break: frequently asked questions, was updated on 23 October with the latest information: legislation; Welsh Government guidance; and guidance from the Church in Wales.

A group of clergy is challenging the legality of the Regulations insofar as they affect places of worship: the letter before claim, dated 23 October, is here.

Hate Crime and Public Order (Scotland) Bill

Following widespread criticism that the current hate crime provisions in the Bill would stifle legitimate debate, the Cabinet Secretary for Justice, Humza Yousaf MSP, has written to the Convener of the Justice Committee with details of the amendments that the Scottish Government proposed to lodge at Stage 2, and a copy of the Bill as it would look if those amendments are approved by Parliament, here. The “stirring up” offence in the Bill is to be limited to situations where “intent” is present: the Bill as currently drafted states that an offence would also be committed “where it is a likely consequence that hatred will be stirred up against such a group”. [With thanks to David Bradwell, of the Church of Scotland’s Faith Impact Forum.]

Same-sex religious marriage in Northern Ireland

The Government has published its response to the consultation on same-sex religious marriage in Northern Ireland – dated 16 July – and its response to the consultation on conversion entitlements.

As to the first, the Marriage and Civil Partnership (Northern Ireland) Regulations 2020, which came into force on 1 September 2020, put in place an ‘opt-in’ system for same-sex religious marriage, allowing individual officiants to be appointed to solemnise same-sex religious marriage where the governing authority of their religious body gives its written consent to same-sex marriage to the Registrar General; and provided exemptions under which it does not amount to unlawful discrimination for a religious body or an officiant to refuse to marry a couple because they are of the same sex.

As to the second, the Marriage and Civil Partnership (Northern Ireland) (No.2) Regulations 2020, which come into force on Monday 7 December 2020, allow for a three-year period in which couples in a same-sex civil partnership formed in Northern Ireland may convert to a marriage, and couples in an opposite-sex marriage formed in Northern Ireland may convert to a civil partnership. The fee for conversion will be waived for the first year.

COVID-19 and the wedding industry

In a recent judgment that we have had to piece together from media reports, R (Cripps Barn Group Ltd) v Secretary of State for Health and Social Care [2020] EWHC (Admin) (15 October: unreported), the claimant, a wedding operator that runs a number of venues across England, sought an injunction to prevent enforcement of the limit on numbers on weddings and wedding receptions under the various Regulations related to COVID-19. Counsel for the Group argued that the Regulations restricting the limits were unlawful and would cause Cripps Barn and other wedding venues “serious and irreparable harm” if they continued to be enforced.

Swift J rejected the application on the basis that the public interest in keeping the restrictions in place outweighed the harm that would be suffered by the venues. He was reported as concluding:

“I do not doubt the continuing damage to Cripps’ business by reason of the restriction on how many people may attend weddings and wedding receptions – that is a clear and present argument. Moreover, that is to be seen in the context of restrictions … having been in place since the end of March, and the cumulative impact of those restrictions on Cripps … must have been very severe indeed. The restrictions have prejudiced every person and, I suspect, the vast majority of businesses. But the public interest in maintaining the restriction … outweighs that indisputable harm.”

Church Commissioners’ Questions

On 15 October 2020, MPs put questions to Andrew Selous MP, Second Church Estates Commissioner, on coronavirus/COVID-19 and church attendance, baptisms, weddings and funerals, IICSA, renting of church premises, and woodland holdings. A transcript is here. In relation to the Independent Inquiry into Child Sexual Abuse, (IICSA), which had issued its 170-page report into The Anglican Church in England and Wales on 6 October 2020, he informed the House that all its recommendations were going to the House of Bishops on 19 October for urgent response and action. In particular, he said [emphasis added]:

“The House of Bishops is urgently and very seriously considering the recommendations, including deposition from holy orders. We will address both practice and culture within the Church and are working on a redress scheme for victims and survivors, and we fully co-operate with all police investigations.”

An overview of the IICSA Investigation is here; it includes the response from the lead safeguarding bishop and national director of safeguarding and a personal statement from the Archbishop of Canterbury.

Bellringing

The view of the Central Council of Church Bell Ringers is that ringing should be suspended in areas of England designated as being in Tiers 2 and Tier 3. Towers in Tier 1 are unaffected. This is based upon the requirement in law that Tier 2 is that “no person may participate in a gathering in the Tier 2 area which consists of two or more people, and takes place indoors.” Tier 3 has at least the same restriction. The CCCBR has published two pieces of guidance: England – Tier 2 and Tier 3 restrictions and Tiers 2 and 3 in England – update.

The CCCBR’s interpretation of the legislation is shared by the Church of England Recovery Group. However, we would add that the involvement of the priest in any such considerations is governed by Canon F8 §2, “No bell in any church or chapel shall be rung contrary to the direction of the minister”.

The UK and human rights

On Tuesday evening, 13 October, the UK Mission in Geneva tweeted: “The UK has just been elected to the UN #HRC for the term 2021-2023. Thank you to those who supported our candidacy. We look forward to working with members of the Council, @UNHumanRights & civil society to deliver our election pledges.” So presumably the UK is going to remain a party to the ECHR at least until 2023. Presumably, the Government couldn’t possibly take a seat on the UN Human Rights Council and at the same time derogate from the ECHR. So that’s all right, then.

Or are we just being naïve?

Postponement of General Synod elections

Made under section 84 of the Coronavirus Act 2020, the General Synod of the Church of England (Postponement of Elections) (Amendment) Order 2020 (SI/2020/1123) amends the first Order made under that section, SI 2020/526, by inserting a new Article 4 to make consequential provision about the membership of the Cathedrals Fabric Commission for England. Under paragraph 7 of Schedule 1 to the Care of Cathedrals Measure 2011, membership of the Commission is for a fixed term of five years, which is expressed to begin on 1 May in the year following that in which the General Synod was last dissolved. Accordingly, the term of office of each current member of the Commission is due to expire on 30 April 2021, before the General Synod will have been dissolved.

The new Article 4 resolves that issue by providing for each person’s membership of the Commission to continue until 30 April in the year following that in which the next dissolution of the General Synod takes place (unless any particular person ceases to be a member of the Commission for some other reason before that date).

Quick links

And finally…I

From Ian G Mitchell’s reflections on the life of The Revd Alistair McGregor QC, who died on 13 June [scroll down]:

“his qualities an advocate were recognised when he took silk in 1982, only a year before he changed career, to take up his studies at New College from which he graduated BD in 1985, though his legal background enabled to him to take up a classier student job than his fellow students could aspire to – appointment as a temporary sheriff.”

And finally…II

A National Churches Trust tweet enthused “Great story – Eerie Witches’ Marks Found Among Ruins of Medieval English Church“, based upon an article in the Smithsonian Magazine. Err, no. Trevor Cooper put the record straight: “this is a medieval sundial placed on a church to judge service time. Huge numbers survive. Various books and articles have been written about them. A good summary here.”

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