Law and religion round-up – 25th April

A week in which we had a few comments asking about GRO materials for the new marriage registration system in England & Wales – to which the answer is, we don’t know: this is a blog, not an official channel of communication.

COVID-19: policing during lockdown

On Tuesday, HM Inspectorate of Constabulary and Fire & Rescue Services for England & Wales published Policing in the pandemic – The police response to the coronavirus pandemic during 2020 between March and November. While the report concludes that “overall the police reacted well to the difficult circumstances presented by the pandemic”, it is critical of the uncertainties against which the police were required to operate:

“For the first time, even in wartime, the public were confined to their homes, and a person was only allowed out if they had a reasonable excuse. The first regulations contained a non-exhaustive list of 13 reasonable excuses, including obtaining basic necessities such as food and medical supplies, taking exercise, travelling to and from work and escaping violence or other harm. The principle was ‘reasonable excuse’, but unfortunately that was not widely understood.

It is a fundamental principle of interpretation of legislation (primary and secondary) that it should be construed in the light of and to give effect to its statutory purpose. The purpose in this case was preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus. With that purpose in mind, it became much easier to understand the cases where members of the public were legitimately outside their homes and where they were not. Regrettably, in too many cases front-line police officers did not receive these explanations which would have made their jobs much easier.

Their difficulty was made worse by a widespread confusion in relation to the status of Government announcements and statements by ministers. Ministers asserting that their guidance – which had no higher status than requests – were in fact “instructions to the British people” inevitably confused people. In some cases, police officers misunderstood the distinction and appeared to believe that ministerial instructions were equivalent to the criminal law.

For example, the two-metre distancing ‘rule’ has only ever been in guidance (aside from some requirements on the hospitality sector such as licensed premises and restaurants). The request to ‘stay local’ has never been a legal requirement. The suggested limits on the number of times a person could go out to exercise in a day and for how long were only ever in guidance, not regulations.

Some forces told us that they sought legal advice on the regulations so that they could produce clear guidance for their workforces. But the speed with which regulations were made and amended (usually by being added to) was great. And to many, the distinction between law and guidance remained uncertain.

In these circumstances, mistakes were made” [emphasis added].

No comment.

Consistory court catch-up (I)

Following last week’s report of Re St Clement Terrington [2020] ECC Ely 3 and the PCC’s early (premature) decision to close the churchyard in six months’ time, this week featured that of St Mary of the Purification Blidworth [2021] ECC S&N 2, where although closed by Order in Council in 2000, burials of coffins and cremated remains had continued. The Chancellor noted:

“Blidworth churchyard appears, I am sorry to say, to have been managed for many years with scant regard to the law” [4].

“There can be no doubt that the responsibility for this sorry state of affairs lies fairly and squarely with each of the incumbents of Blidworth between 2000 and 2018” [5].

The judgment discussed rights of burial and extent of closure orders; all four petitions for the interment of ashes in existing graves of relatives were refused “because it is not for the Court to purport to authorise an act which can lawfully take place without the court’s authority”. So after the 17-page judgment sorting out the mess created by previous incumbents, the four petitions for interment were refused, and these interments may now proceed, as prayed in the petitions. However, it is for the present incumbent as part of the general management of the churchyard to decide whether there is sufficient room in the plots in question, which in the case of three the petitions “there clearly is”, and for the other, “there may well be room for a burial of cremated remains” [66].

Consistory court catch-up (II)

During April, a large number of judgments have been circulated by the Ecclesiastical Law Association, and consequently our end of month review will, like all of Gaul, be divided into three parts.

Wedding news

As clergy were battling with the training resources in time for the changes in the registration of marriage from 4 May 2021 – for which (for Anglicans) queries should be addressed to the GRO or diocesan secretary – a number of COVID-related issues were clarified by the Paymaster General, Penny Mordaunt, (Conservative, Portsmouth North) in response to a written question from Alberto Costa, (Conservative, South Leicestershire), who asked: “whether wedding breakfasts will be able to proceed under Step 3 of the Government’s roadmap out of covid-19 lockdown”. In a wide-ranging response – which was repeated several times in answer to similar questions from other MPs – Mordaunt confirmed the following:

  • Alternative wedding ceremonies are permitted in line with the regular wedding or civil partnership rules, in the same locations, at each Step.
  • From 12 April, (Step 2), 15 people are permitted to attend wedding ceremonies. This allows couples to marry in legally binding licensed venues for wedding ceremonies (where outdoor options are limited) while remaining in line with the reopening of sectors and venues as set out in the roadmap. Wedding ceremonies should follow government guidance to reduce the risk of transmission
  • Receptions (of up to 15 people) can resume from 12 April. The evidence shows that it is safer for people to meet outdoors rather than indoors. That is why receptions are only permitted outdoors at this Step and should be in a COVID-Secure venue.
  • From Step 3, no earlier than 17 May 2021, weddings and civil partnership ceremonies are permitted for up to 30 people in COVID-Secure venues that are not required to close, or where a broader exemption applies. Receptions can also proceed with up to 30 people in a COVID-Secure indoor venue, or outdoors, which includes private gardens.
  • Guidance is available here and here.

At each Step, the limits on the number of attenders include children of all ages, but not “workers”.

Religious symbols in Quebec

Quebec’s Loi sur la laïcité de l’État (An Act respecting the laicity of the State), aka Bill 21,  bans newly-appointed employees in the public sector in positions of coercive authority from wearing religious symbols such as hijabs and mandates having one’s face uncovered in order to give or receive specific public services. In passing the legislation, the Assembleé Nationale invoked the “notwithstanding” provision in s.33 of the Canadian Charter of Rights and Freedoms, which provides that a provision in respect of which a “notwithstanding” declaration is made is immune from legal challenge for five years after it comes into force.

In Hak c Procureure générale du Québec 2021 QCCS 1466 (CanLII), however, the Superior Court of Quebec struck down two elements of the legislation: its application to English-medium schools, because of protections offered to minority language education rights under the Charter (to which the “notwithstanding” provision in s.33 does not apply), and the ban on members of the Assembleé Nationale wearing face coverings while at work. The rest of the legislation remains intact.

Justice Minister Simon Jolin-Barrette has already announced that the Quebec Government plans to appeal.

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