Law and religion round-up – 29th November

“Sometimes I wonder whether our politicians are talking about Christmas or a modern version of Saturnalia”

Sr Catherine Wybourne OSB

The joint statement on Christmas/Saturnalia

On Tuesday, the UK Government and the devolved administrations released a Joint statement on UK-wide Christmas arrangements. In brief:

  • “Travel restrictions across the four administrations and between tiers will be lifted to provide a window for households to come together between 23 and 27 December.”
  • “Up to three households can form an exclusive ‘bubble’ to meet at home during this period. When a bubble is formed it is fixed, and must not be changed or extended further at any point.”
  • “Each Christmas bubble can meet at home, at a place of worship or an outdoor public place, but existing, more restrictive rules on hospitality and meeting in other venues will be maintained throughout this period.”

COVID-19 and Christmas in England

Guidance

Early this morning, 29 November, the Cabinet Office issued Guidance for the Christmas Period which clarifies some of the issues raised by the Second Church Estates Commissioner, Andrew Selous in the Commons on Thursday. The new Guidance covers most aspects relevant to the period from 2 December, an overarching criterion being the guidance for each of the three tiers. Included are:

Three time-periods are involved: from 2 December to 23 December; from 23 December to 27 December; and from 28 December. There is also cross-referencing to other earlier guidance. A future post will summarize the new legislation and guidance.

Legislation

Under Regulation 23 Health Protection (Coronavirus, Restrictions) (England)(No. 4) Regulations 2020, SI 2020/1200, the current lockdown in England will cease automatically at the end of Wednesday 2 December. However, Regulation 25 revoked the three separate Regulations relating to the Medium, High, and Very High Alert levels, other than Schedule 3 within each of these Regulations (SI 2020/1103SI 2020/1104, and SI 2020/1105 as amended) Consequently, new three-tier Regulations will have to be brought into force to implement the COVID-19 Winter Plan, summarized in our post, below.

The Government has been under continued pressure on the lack of parliamentary scrutiny on coronavirus-related legislation, and since the first set of three tiers regulations was introduced it has stated that it would place further Regulations before Parliament prior to them coming into force. Motions “to approve regulations related to public health” are scheduled in both Houses for 1 December. This raises two issues regarding the possible outcomes: the overlap of new legislation if it is brought in to be effective on 2 December, as indicated in the Winter Plan; and contingency measures if no Parliamentary agreement is reached before the current legislation expires.

COVID-19 and Christmas in Scotland

On Thursday, the Scottish Government published guidance on forming “bubbles” over Christmas, though it reiterates that “The safest way to spend Christmas and the festive period is to stay within your own household, in your own home and your own local area.” The key message in relation to places of worship is this:

If I have formed a bubble can we go to worship together?

Whilst bubbles are permitted to gather in a place of worship during the Christmas period, places of worship are required to take measures to protect individuals, worshippers, staff members and volunteers from infection by COVID-19. Indoor acts of worship are limited to a maximum of 50 people in levels 0 – 3 and 20 in level 4 providing there is sufficient space to maintain 2-metre distancing. Where that is not possible capacity will be reduced.”

COVID-19 and Northern Ireland

On Friday, a further lockdown came into operation in Northern Ireland which will run until midnight on 10 December. in relation to places of worship, the guidance states that:

“Places of worship must close, except for funerals and weddings (limited to 25 people). Buildings may also open for individual acts of worship or for the recording or broadcasting of an act of worship. Drive-in services will be permitted for the two-week period (persons attending must remain in their vehicle).”

Cathedrals Measure

The Cathedrals Measure has been given Final Approval by the Church of England General Synod. It implements proposals first brought to Synod in July 2018, following a report by the Cathedrals Working Group set up by the Archbishop of Canterbury. Under the new structures, Chapters will remain as governing bodies for cathedrals, but with changes to their composition to achieve a majority of non-executive members. The Measure will also bring cathedrals under regulation by the Charity Commission. This Measure applies to cathedrals in England only but does not apply to the cathedral church of Christ in Oxford, except in so far as Schedule 5 amends a provision which applies to that cathedral church.

The Measure will now be considered by the Ecclesiastical Committee of Parliament and, if found expedient by that committee, it will go forward for approval by Affirmative Resolutions of both Houses of Parliament and then become law on receiving Royal Assent.  Section 52 contains quite complicated provisions relating to when different sections of the Measure will come into force.

Church of England and IICSA

On Wednesday, the Church of England General Synod voted unanimously fully to accept the final investigation report into the Anglican Church by the Independent Inquiry into Child Sexual Abuse (IICSA) and to commit itself to implement the six recommendations set out on pages 4–6 of GS 2184.

Synod also resolved that the Safeguarding (Code of Practice) Measure be considered for revision in Full Synod: it is due to be considered again in February. The Measure replaces the general “duty to have due regard to safeguarding guidance” in the Church of England’s current legislation with a strengthened provision for a safeguarding Code of Practice that will impose requirements on relevant persons to comply with all secular and Church Safeguarding legislation and practice guidance. In practice, the current legislation imposes similar obligations but IICSA requested a change in the wording to make the nature of the obligation clear.

Hate Crime and Public Order (Scotland) Bill

On Tuesday, Cabinet Secretary for Justice Humza Yousaf told the Scottish Parliament’s Justice Committee that the Government proposes to amend section 11 of the (much criticised) Hate Crime and Public Order (Scotland) Bill – the section which deals with the protection of freedom of expression with regard to religion. He said that s.11 would be amended to cover the absence of religious belief and to clarify that “mere expressions of antipathy, dislike, ridicule and insult are not on their own criminal behaviour”.

Consultation on early medical abortion

During the COVID-19 pandemic, the Government put in place a temporary measure in England enabling women to take both the pills to induce an early medical abortion (up to 10 weeks’ gestation) in their own homes. Before the pandemic, only the second pill could be taken at home: the first had to be taken under medical supervision. The temporary measure is time-limited for two years or until the pandemic is over ‒ whichever is earliest.

The Government is now seeking views on whether or not to make the temporary measure permanent. The consultation closes on 26 February.

UK and Crown Dependencies marriage legislation

On 27 November, we posted UK marriage legislation, which provides links to 105 posts which have appeared in L&RUK since 2012. This represents “work in progress” and will be followed up by a revised post(s), an early addition to which will be Marriage (Bailiwick of Guernsey) Law 2020. On 14 October Her Majesty in Council gave Royal Sanction to the Projet de Loi of the States of Guernsey, entitled the Marriage (Bailiwick of Guernsey) Law, 2020, which was registered in the Royal Court, and is due to come into effect on Monday 1st March 2021. The Marriage (Bailiwick of Guernsey) Law, 2020 was approved by the States of Deliberation in April 2020 and replaces the Marriage Law of 1919; it simplifies the administrative procedure required before a couple are married, whilst ensuring that the necessary safeguards are in place to prevent illegal marriages.

November consistory court judgments

In contrast to the dearth of judgments in Ecclesiastical court judgments – October which reported only four cases, there has been a significant upturn in November, and at the time of writing there is a total of eleven. This week we posted Carbon neutrality and the consistory courts which, although only three pages in length, raised some interesting questions on the application of the Church of England plan of action to cut its emissions of greenhouse gases (GHG) year-on-year, reaching net zero emissions by 2030. The recent Synod, held on 23-24 November, was circulated with the paper Rising to the Challenge: reaching Net Zero by 2030, GS Misc 1262 (“Rising to the Challenge”) which updated members with the progress made since February; the paper itself, however, is not scheduled to be discussed.

A faculty was granted for the installation of a replacement heating boiler, despite the fact that the new equipment was not “carbon neutral”, with an expected working life of more than ten years, i.e. beyond the target year of 2030. Issues such as these are unlikely to be unique to St Mark, Mitcham, and similar balancing exercises will be necessary; the justification for similar replacements will become more difficult as 2030 approaches. However, a strict application of the 2030 target would be problematic, given the lack of scrutiny given by Synod to the change in the target year from 2045 to 2030.

Quick links

And finally…

In response to a document which has “apparently been posted in the windows of pubs, salons and other businesses by owners believing it to confer immunity from the regulations requiring them to close their businesses for 4 weeks”, this week The Secret Barrister posted “Can Magna Carta and “common law” give you immunity from Covid regulations?” Readers of this blog will probably not need to read further, and agree with Joshua Rozenberg, who comments:

Extraordinary that this is a question that even needs asking. But I fear that not even the persuasive and authoritative @BarristerSecret can convince people who believe in fairytales”.

Nevertheless, the post provides a convenient aide-memoire to those of us who have forgotten the basic arguments against the assertion but will be aware that.

“this document – and the assertions of law that it contains – is pure nonsense. It is a species of what regular attendees at courts will recognise as the pseudo-legal rubbish peddled by self-styled Freemen on The Land’, a grouping of proselytising individuals who believe that by misquoting Magna Carta and basic tenets of contract law, they can somehow place themselves outside the jurisdiction of the law of England & Wales.”

 

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