Coronavirus and ecclesiastical law – II

[First published on 16 March 2021, and reissued on 18 March 2021 to resolve technical problems] 

From the early stages of the coronavirus COVID-19 pandemic, we reported the advice and updates from faith groups, government and others; links to these are indexed in COVID-19 Coronavirus: legislation and guidance and our weekly updates. In addition, the impact the pandemic over the period 31 January 2020 until 9 October 2020 is covered in our joint paper “COVID-19 and religious freedom in the UK*. The present review, below, considers aspects of ecclesiastical law and the related provisions which have arisen, directly or indirectly, as a consequence the restrictions imposed by coronavirus-related legislation.

In Part I we considered the legislation and regulations in relation to time constraints imposed by ecclesiastical provisions. In this Part II, we look at the Impact of closure of churches on Church services; Part III will consider Social distancing and statutory limits on gatherings. Some of the early concerns have been resolved or are no longer relevant; nevertheless, these have been included as an indication of the extent to which events during this period were impacted by the ecclesiastical law of the Church of England.

Impact of closure of churches on Church services

On 17 March 2020, the Church of England announced “Public worship will have to stop for a season. Our usual pattern of Sunday services and other mid-week gatherings must be put on hold”. In view of the legal requirements to hold such services, questions were asked regarding the legitimacy of such a decision. The advice posted by the Church of England covered the public services which the Canons normally require to be held every Sunday and on principal feasts and holy days (Holy Communion and Morning and Evening Prayer) as well as the weekday Daily Offices.

In Part I we considered the time constraints imposed by ecclesiastical provisions in relation to the management of church affairs – meetings, General Synod &c – and to weddings. Here we look at the manner in which services have been affected by these restrictions.

Celebration of Holy Communion Priest alone

The closure of churches during the first period of lockdown in March 2020 raised the issue of whether priests could celebrate Holy Communion in the absence of a congregation. It was noted that a rubric to The Lord’s Supper or Holy Communion in the Book of Common Prayer states:

“And there shall be no Celebration of the Lord’s Supper, except there be a convenient number to communicate with the Priest …”

However, in an Ad Clerum to his clergy on 19 March 2020, the Bishop of Chichester, the Rt Rev Martin Warner, gave “an exceptional dispensation to a priest (licensed or with PTO in this diocese) to celebrate the Eucharist without a congregation, during the course of the present restrictions”. He also provided detailed advice on the reservation of the consecrated elements in church, and the theological background to the dispensation to celebrate the Eucharist without a congregation, which can “seem generally foreign to the Church of England’s tradition”§.

A similar approach was adopted elsewhere in the Church. The London College of Bishops issued The Eucharist in a time of Physical Distancing which, in relation to Holy Communion, stated inter alia:

“Rubrics at the end of the BCP Communion office plainly declare that ‘there shall be no celebration of the Lord’s Supper except there be a convenient number to communicate,’ a number which is further defined in a parish of twenty persons or less to be ‘three at the least.’

“To ensure congregational involvement, where a parish church wishes to continue to celebrate the Eucharist within the current advice issued by the London College of Bishops, and only the priest can be present, it should, whenever possible, be livestreamed, so that others can at least (as Cranmer put it) “see with our eyes” even if they cannot “smell with our noses, touch with our hands and taste with our mouths.” This enables the kind of spiritual reception that is at the heart of the sacrament, even if physical partaking is not possible.

…If that is not feasible, at the very least, it should be clearly advertised in the parish and among the congregation when the Holy Communion is to be celebrated in the home of the priest, with or without the presence of another member of that household. Such public advertising is insisted on in the ‘Exhortations’ in the BCP that are inserted between the Prayer for the Church Militant and the Confession. This way, others can be invited to pray and perhaps read the Scriptures at that time, so that the service takes place within some kind of extended communal act of worship in that parish, even if dispersed, and does not become merely a private act of devotion. Some prayers that would enable people to take part in such a celebration might be prepared.”

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Live streaming of services

The live streaming of services gave rise to a number of issues: the technical aspects of streaming; copyright matters concerning the material used; “Spiritual Communion” and the desire of some to continue to receive the elements in both kinds through the use of individual cups, or the often questioned practice of intinction. Nevertheless, after overcoming the inevitable teething problems, these services were well-received; on 23 February 2021, the Church of England announced Book of Common Prayer services see huge numbers tuning in seeking ‘traditional comfort’ amid pandemic lockdowns; “Churches offering services from the Book of Common Prayer are seeing unprecedented engagement with hundreds choosing to ‘tune in’ to more traditional offerings…The traditions of the Prayer Book have helped attracted people tuning in throughout a Sunday – including from the US and across Europe”.

Similarly, on 16 March 2021, the Church reported Millions join worship online as churches bring services into the home in pandemic year where “national online services alone have attracted more than 3.7 million views since the first restrictions on gatherings for public worship to limit the spread of Covid-19 were introduced”.

“The figures for online services are thought to be just the tip of the iceberg as churches’ response to the challenge of the pandemic triggered a major change in the way Christians worship and reach out to their neighbours. At least 20,000 services and other online events are now listed on the Church of England’s ‘church-finder’ website AChurchNearYou. A year ago there were none. And a special hymn download service, designed for local churches to use as part of online worship, has seen more than a million downloads.”

Technical aspects

The technical issues associated with the streaming of services are addressed in COVID-19 Livestreaming Worship, V1.1, 8 December 2020. A regularly updated guide to getting started with livestreaming is available on the Church of England website. The Guidance states “[t]his is the best point of reference for ongoing streaming and recording advice”.

Copyright

On 17 March 2020, we posted Streaming church services: an (updated) guide to copyright and religion, and on 30 April 2020, the Church of England published a new FAQ giving guidance on the live streaming of services and copyright. In view of its importance, a copy of the full document is reproduced in our post here. The guidance includes information on the CCLI  streaming licence; Rights-free music from the Church of England, St Martin in the Fields and the Royal School of Church Music; Using other copyrighted material; One Licence; and Advice on using Zoom to stream services.

Spiritual Communion

The document COVID-19 Advice on the Administration of Holy Communion v 5.3, (“the Guidance”) states:

“[7]. When services of Holy Communion are broadcast live (whether live-streamed or through videoconferencing), those who tune in are participating in a real Eucharistic assembly. Those who participate remotely in this way, but who are unable to be present physically, can practise a form of Spiritual Communion. The term ‘Spiritual Communion’ has been used historically to describe the means of grace by which a person, prevented for some serious reason from sharing physically in a celebration of the Eucharist, nonetheless shares in the communion of Jesus Christ. Guidance on Spiritual Communion and Coronavirus is available on the Church of England website.

[8]. As the introduction to that liturgical material explains:

The Book of Common Prayer instructs us that if we offer ourselves in penitence and faith, giving thanks for the redemption won by Christ crucified, we may truly ‘eat and drink the Body and Blood of our Saviour Christ’, although we cannot receive the sacrament physically in ourselves. Making a Spiritual Communion is particularly fitting for those who cannot receive the sacrament at the great feasts of the Church, and it fulfils the duty of receiving Holy Communion ‘regularly, and especially at the festivals of Christmas, Easter and Whitsun or Pentecost’ (Canon B 15).

The act of Spiritual Communion can take place at the point in the service when the participant would normally receive the bread and wine – perhaps after having seen the president consume them.”

After outlining “other kinds of table-fellowship within the Body of Chris”t [9, 10], the Guidance adds:

“[11]. We recognise a real desire of many for some physical engagement during the online celebration of Holy Communion. In some cases, participants in online services have consumed bread and wine in their own homes during the service. Whilst we recognize that this practice may have spiritual value for some, participants should not be encouraged to believe that any bread and wine brought before screens during online Holy Communion has been ‘remotely consecrated’. However, we commend the questions raised by this practice for further theological reflection.”

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Individual cups for Holy Communion

The Legal Advisory Commission of the General Synod document Holy Communion: administration of the Sacrament, (2017), includes a consideration of the use of individual cups for Holy Communion (and also intinction, infra). At the virtual meeting of the General Synod in July 2020, Mrs Mary Durlacher (Chelmsford) to asked the Chair of the House of Bishops: “Will the House of Bishops reconsider the prohibition of use of small individual cups as a valid ‘common sense’ pro tem way of sharing the Communion wine while current constraints remain? [Q.68]. In response, The Bishop of London replied on behalf of the Chair of the House of Bishops:

[A.68] The Legal Advisory Commission has stated “it is contrary to law for individual cups to be used for each communicant” and that “the doctrine of necessity cannot be appealed to in order to justify the use of individual cups even in circumstances where there is a fear of contagion from the use of a common cup. … the Sacrament Act 1547 makes provision for cases where a necessity not to deliver a common cup arises: in such a case the normal requirement that the sacrament be delivered in both kinds is disapplied by statute. Even if a shared cup cannot be used for medical reasons, the use of individual cups remains contrary to law … . In such cases reception should be in one kind only.” The House cannot authorise or encourage a practice which would be contrary to law.”

Subsequently, on the instructions of Mrs Durlacher, the legal opinion The legality of the use of individual cups for communion wine was prepared.  This concluded that the legal opinion provided in the answer to Question 68 was in error and that there was nothing in law which prohibits the use of individual cups for the administration of Holy Communion. The Opinion was sent to all members of the House of Bishops, the Officers of the General Synod (the Archbishops, Prolocutors and Chair and Vice Chair of the House of Laity), the Clerk of the Synod and the Chair of the Business Committee (with the request that the opinion be copied to all members of the General Synod). The House of Bishops was invited to withdraw its opposition to the use of individual cups on the grounds that the House’s guidance in this regard is unlawful.

The House of Bishops Meeting on 19 January 2021 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. However, “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”. This position was reiterated in the February 2021 General Synod Questions  and the written answers, [Q9, Q10, and Q11], for which there was no opportunity for supplementary questions at the informal meeting of on 27 February 2021.

Question [68] to 2020 General Synod was worded as a pro tempore solution while current constraints remain, although some subsequent comments indicate that their longer use is envisaged. Regardless of whether the use individual cups for the administration of Holy Communion is permitted in ecclesiastical law, their introduction would need to satisfy hygiene considerations imposed by COVID-19 – a factor which appears to have been resolved by other churches – and would require faculty authorization for their introduction in each church wishing to introduce them, as is required for the introduction of other “ornaments” to a church.

Intinction

Intinction, the Eucharistic practice of partly dipping the consecrated bread into the consecrated wine before consumption by the communicant,  “may be regarded as lawful where a communicant or the congregation as a whole is fearful of contracting or communicating a contagious disease through drinking from the cup”. However, the Church’s Legal Opinion Holy Communion: administration of the Sacrament states: “such a departure, viz. by the practice of intinction, from the general custom of the Church of England may be justified by the doctrine of necessity. This is expressly recognized by section 8 of the Sacrament Act 1547 (see para 4 above) because, it is thought, communicants were unwilling to drink from a common cup in times of plague”.

The Opinion continues with a paragraph on “a way of administering the elements by intinction which is consistent with the custom and law mentioned above”, but even though the CofE page on legal advice was recently revised, this is advice dated “January 1991, revised September 2003” and is clearly inconsistent with COVID-19 precautions.

Last year, the advice was [emphasis in original]:

Intinction is not recommended as an alternative to the Common Chalice/Cup. It is a route for transmission from the individual through handling the wafer/bread/host, and tiny fragments could affect people with allergies to gluten etc.”

In response to the question “[5] What elements can be offered to communicants?, the document COVID-19 Advice on the Administration of Holy Communion v 5.3, issued on 12 January 2021, states

“At present, the common cup should not be shared. Therefore, Communion should normally be administered under the form of bread alone, unless simultaneous administration is practiced as set out in the guidance…The president alone should always take the wine, consuming all that has been consecrated. Communicants should receive the bread in the hand.

The guidance this refers to, COVID-19 Receiving Holy Communion in both kinds by simultaneous administration, v1.2, (12 January), which describes a procedure [a.k.a. “intinction lite”] whereby “[t]he simultaneous administration of consecrated bread and wine is effected by the president taking a piece of bread carefully from the paten or ciborium with the fingers and touching it briefly but carefully to the surface of the wine, allowing a small amount of the wine to suffuse into the bread…”. Clearly a problem with this complex procedure arises where the celebrant is gluten intolerant, since they are required to drink the wine at the end of its administration; this, however, could be overcome with the use of gluten-free wafers for everyone.

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Comment

As noted above, Part III will consider social distancing and statutory limits on gatherings, and this will include: Lent, Holy Week, and Easter; congregational and choral singing; organs and worship bands; and bell ringing.

David Pocklington

* This was published in the monographic section of issue No. 54 of the Revista General de Derecho Canónico y Derecho Eclesiástico del Estado;  it has also been published as a chapter in COVID-19 y libertad religiosa, Iustel Publishing Company, Madrid. As first conceived, it was anticipated that it would address, generically at least, the relationship between the legislation and guidance introduced to combat the pandemic, and the exercise of religion. However, in view of the on-going impacts of the pandemic, a further review may be necessary to cover any new issues which arise.

§ In the Roman Catholic Church until Vatican Council II, Mass without a congregation was known  as Private Mass (Missa privata). The Second Vatican Council decreed: “It is to be stressed that whenever rites, according to their specific nature, make provision for communal celebration involving the presence and active participation of the faithful, this way of celebrating them is to be preferred, so far as possible, to a celebration that is individual and quasi-private.” In the revised and expanded 2002 edition of the General Instruction of the Roman Missal, the term Missa cum populo remains as the heading for the information given under numbers 115–198, but the other section (numbers 252–272) speaks of Missa cuius unus tantum minister participat (Mass in which only one server participates). Corresponding to the latter form, the Missal presents the Ordo Missae cuius unus tantum minister participat (literally, Order of Mass in which only one server participates).

Cite this article as: David Pocklington, "Coronavirus and ecclesiastical law – II" in Law & Religion UK, 18 March 2021, https://lawandreligionuk.com/2021/03/18/coronavirus-and-ecclesiastical-law-ii/

 

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