This week’s (unintentional) long read…
COVID-19: easing the lockdown in England & Scotland
Following the Prime Minister’s statement and Press Conference on 22 February, to outline the Government’s plans for a staged easing of the lockdown in England, we summarized the main points in COVID-19: easing the lockdown in England & Scotland. This also included a summary of the announcement made by Scotland’s First Minister and a link to the Scottish Strategic Framework Update.
The Bishop of London, who chairs the Church of England’s Coronavirus Recovery Group, commented that the Church would study the details of the statement and, “working with Government Departments, refine our own advice for local churches in the weeks ahead. We all look forward to being able to meet in larger groups again later this year and today’s announcement will be especially encouraging for couples planning weddings, among others”. However, places of worship are currently one of the very few legal exemptions that allow larger numbers of people to gather, for which the Ministry of Housing, Communities & Local Government (MHCLG) issued COVID-19: guidance for the safe use of places of worship (“the Guidance”) 11 January 2021. This has been incorporated into guidance issued by the Church of England and other faith groups in England.
However, as Lord Cormack observed in the House of Lords on 23 February, “We are approaching the most significant week in the Christian year, Holy Week. In Lincoln, where I live, we have a great and glorious cathedral, we can have services and we can have a choir, but we cannot have them together.” In response, Baroness Evans of Bowes Park said “we will continue to work with the Places of Worship Taskforce to ensure that advice is available for religious communities and faith leaders so we can enable the safe opening of places of worship as we move forward through the steps in the road map”.
On Tuesday, the First Minister set out her government’s plans for moving out of lockdown. She told the Scottish Parliament that “Stay at Home” restrictions would be eased on 5 April 5, but Easter and Passover would be taken into account during the decision-making process and churches could potentially be permitted to re-open for communal worship a few days earlier with numbers restricted to 20. Her statement was welcomed by the Moderator of the General Assembly, the Rt Revd Dr Martin Fair, but he said that, while it was a good beginning to a return to normality, “individual congregations will proceed cautiously according to their own circumstances and will only re-open buildings when it’s safe for them to do so.”
On Monday 22 February, the Crown Prosecution Services published its review of the completed prosecutions in January 2021. Adam Wagner notes that of these, 25 per cent of cases prosecuted under coronavirus regulations had been wrongly charged and 100 per cent of cases under the Coronavirus Act had been wrongly charged.
The EU Council, COVID-19 and human rights
On Monday, the EU Council approved conclusions reaffirming the EU’s commitment to human rights in the context of the recovery from the COVID-19 pandemic. The EU recognises that the ongoing COVID-19 pandemic and its socio-economic consequences are increasingly having a negative impact on human rights, democracy and the rule of law, including civic space. The pandemic further deepens pre-existing inequalities and increases pressure on persons in vulnerable situations.
In light of this, the EU has reaffirmed that a socio-economic response with human rights at its core will allow for a better and more sustainable recovery and undertakes to ensure that its response to COVID-19 will uphold the dignity and human rights of all without discrimination of any kind. Human rights, democracy and the rule of law will therefore remain at the heart of the EU’s response to the COVID-19 pandemic, as stated in the Council conclusions on the EU Action Plan for Human Rights and Democracy 2020-2024.
Clergy Discipline Measure 2003
On Wednesday, the Ecclesiastical Law Society’s Working Party Reviewing the Clergy Discipline Measure 2003, under the chairmanship of HH Peter Collier QC, published its final report. In brief, it recommends an online triage process, to be carried out by regional assessors. For less serious complaints, the working group suggests an approach that could involve an element of discipline without damaging the bishop’s pastoral relationship with the respondent. Allegations of serious misconduct would be referred to a central office for tribunal proceedings.
Listed Places of Worship Grant Scheme
The DCMS announced on Wednesday, in a Written Answer to Sir David Amess MP, that “the Listed Places of Worship Grant Scheme will be renewed this year on the same terms as it operated previously. This scheme will continue to benefit listed places of worship across the country during these difficult times. It will also help to ensure that they are able to reopen fully once it is safe to do so.”
Regular readers will recall the case of Mrs Caroline Newey, who sought a faculty to erect a memorial on her mother’s grave with an inscription in Irish Gaelic – “In ár gcroíthe go deo” – without translation. In the Consistory Court, Eyre Ch had approved the issue of a faculty only on the condition that the inscription should be accompanied by a translation – “In our hearts forever – which could be in a smaller font size. He suggested, inter alia, that there was “a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement”.
The family appealed, and after a socially-distanced hearing on Wednesday, live-streamed from St Mary-le-Bow, the Dean of the Arches (Ellis QC) announced that the Court had allowed the appeal and would therefore grant a faculty without requiring a translation on the gravestone itself, but with a condition that a translation should be provided in the appropriate parish register. A written judgment was to be handed down in due course.
And see Caoilfhionn Gallagher’s blog post for Doughty Street Chambers: A Grave Mistake? Ecclesiastical court rules against Irish language only inscription on headstone. She appeared for Mrs Newey.
Part of the inscription on a headstone in the churchyard of St Mary the Virgin Podington was deemed to be inappropriate and comprised one of the five grounds for the refusal of a confirmatory faculty in respect of a memorial placed in the churchyard without permission: Re St Mary the Virgin Podington  ECC StA 1. The proposed inscription suggested that a particular cancer treatment was responsible for the death of the person commemorated, and used a quotation from The Rime of the Ancient Mariner by Samuel Taylor Coleridge. The Chancellor observed:
“[59.1]. As a strongly worded and despondent expression of a layman’s personal opinion of a prescribed medical treatment for cancer, the poem does carry a real risk of offence or upset. That risk is particularly acute in the case of, for example, a person visiting the churchyard who is, or cares for, someone undergoing the particular form of chemotherapy referred to. But upset or other adverse reactions may well be experienced by others upon reading the inscription simply by reason of the unhappy tone of complaint, or by the earthly, corporeal and pharmaceutical focus of the poem and the consequent dissonance from the other reverent and compliant messages in the churchyard”.
In support of the petition were a number of newspaper commentaries on the recent ecclesiastical decisions dealing with the appropriateness of non-English language inscriptions on memorials . However, the circumstances of the case are quite different from Exhall, and the wording of the inscription was but one aspect of the refusal for this confirmatory faculty. The Chancellor stated that she had carefully considered the question of proportionality and whether to adopt a less impactful route, for example leaving the stone in situ and simply excising some parts of the inscription, but concluded that this would not be an appropriate way forward in this case for a number of reasons .
Proposals on independent oversight of Church of England National Safeguarding Team
The Archbishops’ Council approved the next steps in independent oversight of the National Safeguarding Team, with the first phase to be implemented by the summer. The proposals for this new structure were presented to an informal meeting of the House of Bishops and the Archbishops’ Council this week, with Council members then approving the paper. During the meeting, members noted the importance of being able to review the structure after a set period and further detail needed on Phase 2 once the Board was in place. The paper by the Revd Dr Malcolm Brown on the proposed interim arrangements was presented to General Synod members at the informal meeting yesterday, 27 February.
The Church of England has issued a further update on the timing of publication of the John Smyth Review – a review of the Church’s handling of allegations of abuse carried out by the late John Smyth, which was announced in August 2019. The Church states: “[t]o ensure the review is as comprehensive as possible and that the large volume of information submitted can be fully studied, it is now likely that the completion of the report will be mid-summer 2021 at the earliest. Following that, there will be a need to ensure that the report is legally sound and that people who may be directly referenced will have had the opportunity to comment on those references.”
An illegal religious gathering in Nottingham?
On Sunday, the BBC reported that the organiser of a church meet-up in a pub car park had been fined £10,000. Officers from Nottinghamshire Police said that the Church on the Streets service, involving about 30 people in Bulwell, Nottingham, had broken lockdown rules: when officers arrived at around 12:15 GMT on Saturday there had been tents, food and a sound system.
Inspector James Walker said that they had been advising the group for a number of weeks about how and where they could worship during lockdown, and over the last week had explained that the events were not allowed: “Whilst the rules state you can attend places of worship, this car park is evidently not a place of worship. Despite the warnings given over the last week, in particular, this event continued to go ahead and that is why we have implemented our last resort of enforcement.”
The church’s pastor, Chez Weir, has said that she will contest the fine: Church on the Streets had been holding such meetings since August, the people attending had stayed in their cars and the food, tents and sound system were all part of the service. She said that she had worked with the police throughout and had recently been advised against using a different car park for worship but had not realised that the restriction also applied to the pub car park. “We’ve looked at the guidelines,” she said, “and they are very vague.”
She’s certainly not the first person to say that…
No hurt feelings for cancellation
In Billy Graham Evangelistic Association v Scottish Event Campus Ltd  SC GLW 9, the Association sought a contractual remedy or, alternatively, damages from the defender for the cancellation of an event at the Hydro and for the “hurt feelings” of its members, after Glasgow City Council, the majority shareholder in SEC Ltd, had written to the pursuer to request that it cancel the booking. In its letter, the Council had stated that it was concerned that Mr Graham could make homophobic or Islamophobic remarks – which could raise issues in relation to the Council’s duties under the Equality Act 2010 and damage Glasgow’s reputation. The Council then wrote to the Association telling it that its hire agreement was terminated by a material breach, on the basis of recent adverse publicity surrounding the tour of which the event was a part. The Association interpreted this letter as an anticipatory breach of contract and sued, averring, inter alia, religious discrimination contrary to the Equality Act 2010.
In an interim proceeding, Sheriff McCormick dismissed that part of the case founded on an anticipatory breach of contract; however, he ordered proof before answer in respect of a potential breach of the Equality Act and the practicality and appropriateness of the remedy sought. He excluded the pursuer’s claim for damages for “hurt feelings”. [With our thanks to Scottish Legal News, which has a much longer note here.]
- David Allen Green, The Law and Policy Blog: Why it was correct for an appeal court to allow a memorial entirely in Irish.
- Paul Handley, Church Times: New C of E disciplinary process ‘could save £250,000’ and boost legal aid: on the ELS Working Party’s report.
- John Milbank, Canopy Forum: On the Division of Rights: another critique of Nigel Biggar.
- Tariq Modood and Simon Thompson, LSE Religion and Global Society: Does it Matter if Religious Minorities are Alienated by ‘Establishment’?
- Joe Tomlinson, Lewis Graham and Alexandra Sinclair: Does judicial review of delegated legislation under the Human Rights Act 1998 unduly interfere with executive law-making?
UCL’s 2020 UK Judicial Attitude Survey, published this week, found that only 9 per cent of respondents felt valued by the Government and only 12 per cent felt valued by the media. We’re surprised the figures were as high as that…
Eviction halted by recitation of the Lord’s Prayer? Caroline Powell, of St Brelade, Jersey, initiated the medieval Clameur de Haro when the Viscount’s Officers visited her property to present papers starting an eviction process that had been ordered by the Royal Court in November following an application of the property’s owner. Objecting to the eviction, Mrs Powell, in the presence of the officers, got down on one knee in front of two witnesses, clasped her hands and called out: “Haro! Haro! Haro! À l’aide, mon Prince, on me fait tort.” (Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong).
She then completed the process by reciting the Lord’s Prayer in French. On hearing this, the Viscount’s Officers stopped what they were doing, as required by the Clameur law; at the hearing last Friday, the Deputy Bailiff agreed to a short adjournment until Tuesday morning, when the Court will decide if the Clameur was properly applied.
So much more fun than applying for an interlocutory injunction/interim interdict – and free.