Law and religion round-up – 24th January

Closing places of worship in Scotland

A group of church leaders in Scotland, supported by the Christian Legal Centre, has sent a pre-action letter to the Scottish Government calling for the reopening of places of worship during the current lockdown. The letter, which contends, inter alia, that the closure is disproportionate and in breach of Article 9 ECHR, asked for a response by 21 January. The Church of Scotland and the Scottish Episcopal Church have both stated that they do not support the proposed action.

Opening places of worship in Scotland

On 19 January, the Church of Scotland reported that the Scottish Government’s Communities Secretary, Aileen Campbell MSP, had sent a message of reassurance to faith groups saying that places of worship will be among the first to reopen when COVID-19 restrictions are eased. In her letter, Ms Campbell thanked congregations for their hard work to support local communities during the pandemic and said that she appreciated “the significant role communal worship plays in supporting people’s mental and spiritual well-being and its importance as a lifeline for many in preventing social isolation and loneliness”.

Church of England services in Lent, Holy Week and Easter: 2021

In 2021, Ash Wednesday falls on 17 February, about four weeks away, but on 20 January the Church of England published COVID-19 Advice for Services during Lent, Holy Week, and Easter detailing the necessary changes in view of the coronavirus pandemic. It notes that this advice should be read alongside the guidance for Using Church Buildings for Public Worship and Individual Prayer and Advice on the Conduct of Public Worship, here.

The first lockdown regulations did not come into effect until 26 March – the fourth week in Lent – although some contingency planning had been issued early in February and guidance was issued for Holy Week and Easter. This year, the Church of England is “ahead of the curve”, and its new advice provides guidance on eighteen features of Lent, from the silent sprinkling of ashes to the singing of the Exsultet during the Easter Vigil.

There are cautions for the clergy – “[t]he temptation should be resisted to use a single-use implement to apply ash to the forehead” – and in addition to restrictions on singing, “[i]f the Stations of the Cross are being prayed in person, people should not gather around the stations, touch them, or walk between stations. Physical distancing must be preserved”. It confirms that the Three Hours’ Devotion is regarded as “communal worship”, but “should be concluded in the shortest reasonable time”. As for Palm Crosses, they “could be enclosed in sandwich bags or envelopes to avoid too much contact when they are collected or distributed”.

Currently, about half of the Church of England’s churches are closed, as are many cathedrals, apart from those which are functioning as vaccination centres. Whether the current lockdown continues beyond the Easter Triduum is anyone’s guess.

Guernsey in lockdown

On 23 January, the States of Guernsey issued a Media Release which declared that the Civil Contingencies Authority has decided the island would enter lockdown with immediate effect. This decision follows confirmation of four new positive cases of COVID-19 where it is not immediately clear how they contracted the virus, as none are directly from travel or the contacts of known cases or travellers. Contract tracing is continuing to determine whether there is a link between the cases and whether these cases are linked or this is as a result of wider community seeding. Following the announcement, the Church of England and Methodist churches in Guernsey will be closed for public worship on Sunday 24 January; details of online worship will be published on local church websites.

Church of England General Synod Meetings 2021

It has been decided by Archbishops, Prolocutors of Canterbury and York of the House of Clergy, and the Chair and Vice-Chair of the House of Laity with the support of the Chair of the General Synod Business Committee, that the meeting of the Church of England’s General Synod planned for the end of February has been postponed, although there will be an informal online meeting on 27 February. The decision was taken in order to follow the Government’s call for people to stay at home to limit the spread of the coronavirus.  The Officers of General Synod agreed that Synod chairs and the staff needed to manage formal proceedings should not be required to travel or gather together at the moment.

However, Members will have the opportunity to discuss questions including the future shape of the Church in the wake of COVID-19, independent oversight of safeguarding and proposals by a Commission of the Church of England towards addressing the Housing Crisis at a meeting held entirely remotely on 27 February. Legislation and other business which can only be addressed in a formal session will be discussed slightly later – expected to be from 23 to 24 April. The two meetings will replace the planned group of sessions which would have taken place from 26 February to 1 March.

House of Bishops Meeting

The House of Bishops Meeting on 19 January considered inter alia “the current and multi-year post-Covid environment, with broad discussion over the potential long-term impact of Covid-19 in a number of key areas. The House recognized the opportunities afforded by new kinds of engagement through the internet while regretting that many communities could not meet physically or in familiar ways, while underscoring the importance of Holy Communion for individuals and churches. Importantly, “the House affirmed it would be premature to make decisions on the Eucharist in a digital medium and the administration and reception of Holy Communion, particularly in a time of national pandemic and resolved to undertake further theological and liturgical study and discussion on these issues over the coming months”. Whilst the issue of individual cups for Communion was raised at the virtual meeting of the General Synod on 11 July 2020, “as a valid ‘common sense’ pro tem way of sharing the Communion wine while current constraints remain? [Q68]”, it seems as though this and the associated legal opinion The legality of the use of individual cups for communion wine are firmly in the long grass.

Charities: exception from registration

Under the provisions of the Charities (Exception from Registration) Regulations 1996, as amended, the congregations of certain denominations in England & Wales are not required to register with the Charity Commission if their income is below £100,000. The Regulations were due to lapse on 31 March; however, the Charities (Exception from Registration) (Amendment) Regulations 2021, which were laid before Parliament on 19 January, extend the exception for a further ten years until 31 March 2031. They will come into force on 31 March unless annulled by a Resolution of either House of Parliament – which is extremely unlikely to happen.

So the current exception is set to continue. The expectation is that, at some point, the Charity Commission will introduce phased registration of excepted congregations in tranches – but that will require further legislation.

Mystery monolith in churchyard

The Birmingham Mail reports that a monolith was discovered in the churchyard of the Grade II* St Giles Church, Sheldon: “[t]he tall, slender totem was reportedly seen for the first time in late December in the grounds of on Church Road. But beyond that, the reason for its arrival in the historic heart of Sheldon and the meaning of the pillar’s squiggled inscription remains a mystery”. Additionally, it is illuminated at night. It is clearly much larger than the mementoes &c, the removal of which was the subject of Re St Edmund Kessingland [2020] ECC Nor 4 discussed in an earlier post, in which it was held that although a faculty was not required for their removal, one was required for their disposal.

Readers with long memories will recall Re St Aidan Thockrington [2016] ECC New 1 discussed here, which addressed the illegal deposit of “a medium sized bottle of Famous Grouse whisky, a fountain pen, two small tea-light candles and two red plastic numerals (broken)” plus a portion of the ashes of the author Tom Sharpe. In this case, the Chancellor directed that the respondent “whose actions necessitated [the] application” should bear the costs of the application.

Unlawful burial in Figheldean

In October 2020, it was discovered that a grave containing the remains of a local couple had been disturbed, suggesting an additional interment without lawful authority. On the basis of the evidence provided, the Chancellor was satisfied on the balance of probabilities that the remains interred in the couple’s grave were the mortal remains of their son: Re St Michael and All Angels Figheldean [2021] ECC Sal 1. However, the deceased’s widow denied that her husband’s ashes had been interred in the grave, and refused to attend the hearing.

The incumbent applied for exhumation of the cremated remains, as they had been unlawfully interred, and the deceased’s four siblings applied for custody of the remains so that they could be interred in land where the deceased had wished his remains to be interred. The Chancellor granted a faculty for exhumation and for custody of the ashes to pass to the surviving siblings for reinterment.

Rev Jonathan Fletcher report

On 22 January 2021, the Daily Telegraph reported (£) ‘Abusive’ vicar victims fear cover-up, as church officials gain advance access to conduct report. The article stated “Emmanuel Church will have a copy of a report it commissioned into allegations against the Rev Jonathan Fletcher a month before publication. Victims of an “abusive” vicar unmasked by The Telegraph fear a church cover-up, as it emerges officials will have a month to scour the investigation into his conduct before its publication. …”.

This appears to reflect the approach to the publication of the Granville Gibson Report conducted by Dr Stephanie Hill for the Durham Diocese, which involved the process of ‘Maxwellisation’ before its publication – Maxwellisation is the legal practice in English and Scots law that allows persons who are to be criticized in an official report to respond prior to publication, based on details of the criticism received in advance.

Extradition from Italy to the Vatican?

A fairly marginal curiosity. According to a rather convoluted piece in the Catholic Herald, the Vatican abandoned its request to extradite an Italian woman on charges of financial misconduct. At the hearing on Monday in Milan, the Vatican said that it was not seeking to detain Ms Cecilia Marogna. A statement from the Vatican Press Office said that the purpose of the extradition request was to pave the way for Ms Marogna to participate “freely” in the “imminent” proceedings against her in the Vatican City court: “Among other things, the initiative intends to allow the defendant … to participate in the trial in the Vatican, free from the pending precautionary measure against her.”

But the report also mentioned that there is no extradition treaty between Italy and either the Holy See or Vatican City. So absent any treaty, would the Italian court have agreed to extradition in any event? Neil Addison (to whom our thanks for drawing the article to our attention) suggested that the Vatican’s lawyers might have been trying to rely on Article 22 of the Lateran Treaty 1929:

“At the request of the Holy See, or by its delegation which may be given in individuals cases or permanently, Italy will provide within its territory for the punishment of crimes committed within Vatican City, except when the author of the crime will have taken refuge in Italian territory, in which event he will be certainly prosecuted according to the provisions of Italian laws.

The Holy See will hand over to the Italian State persons who may have taken refuge within Vatican City and who have been accused of acts, committed within Italian territory, which are considered to be criminal by the laws of both States.”

And it’s goodbye from him

On Monday, President Donald Trump issued a Proclamation declaring 21 January as National Sanctity of Human Life Day. The Proclamation reads in part:

“Every human life is a gift to the world. Whether born or unborn, young or old, healthy or sick, every person is made in the holy image of God. The Almighty Creator gives unique talents, beautiful dreams, and a great purpose to every person. On National Sanctity of Human Life Day, we celebrate the wonder of human existence and renew our resolve to build a culture of life where every person of every age is protected, valued, and cherished.” [With thanks to Howard Friedman.]

Hmmm: “every person”. We cannot but wonder if those thoughts were in his mind when he signed the thirteen Federal execution warrants during the last days of his presidency. They were “persons” as well.

Ecclesiastical Law Journal 2021 volume 1

Quick links

And finally…

The Times reports that the French Assemblée Nationale has passed a bill to make it harder for visitors and new residents to complain about activities that disturb them. Pierre Morel-à-l’Huissier, deputy for Lozère in the southern Massif Central, was provoked to act after a tourist in Les Bondons in his constituency asked the mayor to silence the church bell – at which the mayor pointed out that her rented gîte was the old rectory. According to the report, the mayor in Saint André de Valborgne was so tired of complaints about animals, tractors and manure that he put up a sign saying: “Here we have church bells that peal regularly, cocks that crow very early, farmers who work to feed you. If you cannot put up with that, you are not in the right place.”

5 thoughts on “Law and religion round-up – 24th January

  1. Am I alone in thinking that the actions of the ‘Christian Legal Centre’ in challenging church closures during lockdown is a terrible message to society suggesting that churches’ right to gather physically is more important than other people’s health and the nation’s survival of the virus. It seems to me rather at odds with the ‘Grace not Law’ message of Scripture.

    • No you are not alone in disagreeing with the CLC case, as the article notes the Church of Scotland and the Catholic Church disagree as well

      Personally I think that the closure of places of worship in Scotland is excessive but I accept that its a decision made in good faith. We are all in a situation where it’s difficult to know exactly what the right thing is for Government to do and people can legitimately arrive at different decisions as to what should be done.

      That’s the reason why I am sure this case will fail. Courts know it’s not their place to chose between equally justifiable choices

  2. A somewhat snide remark about former President Trump. Yes those executed were ‘persons’ but they were person’s who had been convicted of crimes punishable with the death penalty under laws passed by a democratically elected legislature.

    You may disagree with the death penalty, many do but it is still the law in the United States. If President Biden and the newly elected Congress want to legislate to outlaw the death penalty they can but President Trump can hardly be criticised for enforcing the law as it existed during his term of office.

    • That was me, not David. And I didn’t mean to be snide, I meant to be overtly critical of what appears to me to be a total lack of intellectual consistency.


      • It is perfectly logically consistent to believe that people should be free to live in peace freedom and happiness and at the same time to accept that some people by their behaviour have forfeited their right to that freedom.

        The death penalty is as moraĺly and intellectually justifiable as the abolition of the death penalty and human societies can make different choices and be equally intellectually consistent

        Sorry about the word ‘snide’ it was harsher than I intended.

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