The week in which the Secretary of State for Wales complained to the Archbishop of Canterbury about the Bishop of St Davids: discuss, but not with us, please…
COVID-19 and Parliamentary scrutiny again
Last week we reported the findings of the House of Lords Constitution Committee which recommended that “all future ministerial statements and Government guidance on changes to COVID-19 restrictions clearly distinguish information about the law from public health advice”. However, in relation to the announcement of the delay in the relaxation of lockdown on Monday 14 June, Mr Speaker was highly critical that Government clearly planned that it was to be made first to the media, and not first to the House; this was a clear breach of the Government’s own ministerial code.
COVID-19 legislation and guidance
The Guidance relating to changes in the the lockdown provisions in England were followed in our rolling update COVID-19 legislation and guidance: update to 19 June. However, over the first two days of the week some guidance did not appear to match the Prime Minister’s announcement at the Press Conference on 14 June. An early confusion was resolved in the (COVID-19) Coronavirus restrictions: what you can and cannot do, re-issued on 15 June, which explained that though some of the guidance was now effective, other provisions would only be issued on 21 June. However, working within the relaxed guidelines is not straightforward; in a Twitter thread, Adam Wagner observed:
“This is impossible to figure out for the public. You can keep clicking through guidance and it is tens of thousands of words. What is meant to apply? Of course most relevant guidance has wedding written at the top – but it does specifically tell you to look at the other guidance”
“Most importantly, how are people meant to know how they are not going to be subject to a £10,000 fixed penalty notice from police who are no more able to figure this out than the public?!”
He advocates the “good advice” from Tom Hickman who said: “My suggestion for anxious couples would be to keep a note of the guidance consulted and factors considered. The duty is to take it into account, i.e. show it’s been considered. And remember it is guidance – a guide and all circumstances vary.”
The irony of these concerns is that the requirement for organisers to take the “required precautions” is not new for these and other events; it was defined in section 6 of the “Steps Regulations” and has been in force since 29 March 2021. Only the maximum permitted numbers at weddings have changed; the “weddings industry” appears to have been successful in persuading government that these limits should be removed – an example of “be careful in what you wish for”.
Temporary permission for outdoor weddings in England & Wales
The BBC reports that, from July, civil weddings and civil partnerships in England and Wales will be permitted to take place outdoors at approved premises: currently, ceremonies at approved premises such as hotels must be held in a room or other permanent structure. The change will be effective from July until April 2022. It will apply only to locations already approved to hold civil weddings and partnership registrations. The temporary change in the law will be brought into effect by secondary legislation. There is a Government press release here.
Net zero, church heating, and the consistory courts again
Following the General Synod February 2020 commitment to that target of “net zero emissions by 2030”, we have considered a number of judgments relating to the replacement of heating systems, here and here. On 12 April 2020, the Diocese of Liverpool handed down Re St James in the City Toxteth  ECC Liv 1 which related to improvement for a church which had fallen into a state of dereliction in the 1970s and had to be closed.
However in 2010 a trust was set up to improve the church and grow its congregation. By 2018 there was an average Sunday attendance of 150, but due to the state of the building and lack of heating, a major scheme of reordering was proposed. The Worshipful Graham Wood QC commented:
“. It would be somewhat trite to observe that a thriving congregation could not continue to meet in a semi derelict building, inside a marquee with portable heating for any significant length of time.
. It would appear that the absence of space heating is a primary driver for the changes, on the basis that there would be little point in structural re-ordering if the numerous groups which met within the building had no appropriate heating, and were always dependent on portable heaters. This would make little sense economically or environmentally. Further, beyond the main nave area where the tent is erected, there is said to be little space for ancillary activities.”
The “extensive and detailed” statement of need was prepared on the petitioners’ behalf by the architects and project managers . Although the judgment refers to the installation of “eco-friendly heating and lighting systems”, no further details are given. This was, however, only shortly after the Synod motion was agreed, and before guidance on “net zero” was issued.
Religious communities and human rights in the UK
A wide range of religious groups across the UK have joined together to call on the Prime Minister to protect the Human Rights Act 1998, following the Government’s Independent Human Rights Act Review. The joint letter was coordinated by Humanists UK, Amnesty International UK, the Jewish human rights group René Cassin and Quakers in Britain. It has also been signed by – among others – the Bishop of Manchester, the Bishop of St Davids, the Church of Scotland, British Muslims for Secular Democracy, the Network of Sikh Organisations, Soka Gakkai International, the Movement for Reform Judaism and Liberal Judaism. The text is as follows:
“We write from many different religious and belief organisations in the UK to make a joint appeal to protect the Human Rights Act. We believe different things about the world, our place in it, and how we should live. But what we all hold in common is that human beings are imbued with inherent dignity which is protected by human rights.
The European Convention on Human Rights, on which the Human Rights Act is based, was Europe’s response to the horror of the Holocaust. The Act has safeguarded our freedoms, including our freedom of thought, of belief, and of religion. It has allowed us to marry and conduct funerals in line with our understandings of the world, letting us live in accordance with our beliefs.
We do not want to see those freedoms diluted or see any measures taken to make it more difficult for people to access their rights. To do that would deprive people of what should be enjoyed by all. The human dignity that we all recognise needs a legal framework to protect it.
Any move to weaken the Human Rights Act risks undermining the basis of all of our freedom, and would be a marker on a very slippery slope. For a United Kingdom based on decency, dignity and respect, we must keep our Human Rights Act as it is.”
And, for what it’s worth, we agree with that.
Northern Ireland and religion in schools
The High Court of Northern Ireland has granted a non-religious parent and child permission to challenge the requirement for faith-based Christian religious education (RE) and collective worship in all schools. The plaintiffs, who have been granted anonymity by the Court, are bringing the case against the child’s school and the Department of Education. They argue that, by mandating Christian RE and worship with no meaningful alternative for the non-religious, both the school and the Department have breached their human rights: specifically, Article 9 ECHR. The case will proceed to a full hearing on 22-23 November.
Charities Bill [Lords]: effect on the Charities Act 2011
The Charities Bill was introduced in the House of Lords on 26 May: the Bill and Explanatory Notes are available here. The Law Commission has now produced a marked-up copy of the Charities Act 2011 (known in the trade as a Keeling Schedule) showing the changes that would be made to the Act by the Charities Bill. It is available here. [With thanks to Bates Wells.]
Masterpiece Cakeshop Mk II
In Scardina v Masterpiece Cakeshop, Inc (CO Dist Ct June 15, 2021), a transgender woman is suing Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, for his refusal on grounds of religious belief to bake her a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:
“Mr Phillips … claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions … He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings…”
The Court concluded that the defendants’ refusal had violated the Colorado Anti-Discrimination Act and that the Act did not infringe the defendants’ free speech or free exercise rights. Presumably the case will end up in the US Supreme Court. [With thanks to Howard Friedman.]
Neil Foster has a longer note on the case in Law and Religion Australia, here.
- ECtHR: Guide on Article 11 of the European Convention on Human Rights: Freedom of assembly and association: updated 30 April 2021.
- Paul Magrath, The Transparency Project: Plan for publication of judgments by The National Archives: what will become of BAILII?
- Lois McLatchie, The Times: Council’s admission shows Christians can’t be cancelled: on the admission by Edinburgh City Council that ut had acted unlawfully in cancelling a Christian event on the basis of the beliefs held by a guest speaker.
- David Whincup, Lexology: EAT sets very low bar for beliefs protected by UK equality law: on Forstater: “the whole problem with freedom of belief is that it doesn’t just apply to you and so, irritatingly, other people get to believe what they want as well, however alien it is to your own world-view.”
Tommaso Pozzi, Catholic Herald: Boris Johnson refuses to say whether he is a practicing Catholic – or even, presumably, a practising one.
On 14 June, the Welsh Government issued Guidance on reopening places of worship: coronavirus, which included guidance on singing. Whilst this provides a route to the recommencement of singing in churches, part of this advice has been widely ridiculed in social media. This suggested “tenors are more likely to emit more virus than altos and sopranos”, a claim strongly disputed by experts in the field (and, presumably, tenors).
The source of this claim appears to have been fake news. It was a photoshopped Classic FM story put up by @QuireMemes in February, who state “Stay in your lane, @WelshGovernment. Leave the tenor jokes to us”. They have also altered their biographical details to “Choral Memes; That’s it. That’s the account. Please do not use our tweets for the basis of government policy”. On Saturday evening, the Guidance was taken down and the web page now states: “This guidance is currently being updated and a revised version will be uploaded as soon as possible”.
Update: The revised Guidance document was uploaded on Monday 21 June 2021.
Masterpiece Cakeshop Mk II curious I looked at the judgment to find out what the words of the message were. To my surprise I found there were none!
“18. This conflict is also a distinction without any effect because Mrs. Phillips
confirmed that the Bakery would have made a pink cake with blue frosting if Ms. Scardina had not then shared her protected status and the meaning of the colors to her. (Tr. 239:11-15.) Only after Mrs. Phillips stated that the Bakery could make the requested item did Ms. Scardina then share that she had chosen those colors to reflect and celebrate her transition from a male to a female.”
A clear difference from Asher’s Bakery:
“1. The substantive question in this case is whether it is unlawful discrimination,
either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.” Emphasis added.
For me the Scardina case poses different questions.
1. When there is no written message is there any limit to the services you can provide to a person with whom you disagree over their behaviour?
I would hope not.
2. In the UK would Scardina’s behaviour amounted to some form of
I would hope so – live and let live with disagreement but don’t provoke.
The words meant to be emphasised were ‘supply a cake iced with the message “support gay marriage” ‘ between ‘ to … because’. The sign I used the website did not like them and deleted!
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