Law and religion round-up – 11th July

“Step 4” and the road to de-mask us

The relaxation of many of the coronavirus restrictions in England announced on 5 July was greeted with a mixture of responses, for whilst there was general relief that a number of activities could recommence, there was also anxiety and suspicion at the lack of scientific backing for the move. The latter was fuelled by a letter in The Lancet by 122 scientists who warned that any strategy which tolerates high levels of infection is both “unethical and illogical” and called on the Government to pause plans to abandon mitigations on 19 July.

Readers of our weekly update and review of the implications of the move to Step 4 in England will be aware of the provisional nature of the ministers’ announcements on Monday. The Government has indicated that it will make an announcement on 12 July as to whether England will move into step 4 of the COVID-19 roadmap; it will use the criteria in its four tests:

(i) continuation of vaccine deployment programme;

(ii) evidence on the effectiveness of vaccines on hospitalization/deaths;

(iii) no unsustainable pressure on NHS from hospitalizations; and

(iv) that the Government’s assessment of the risks is not fundamentally changed by new variants of concern.

There is a high degree of subjectivity in these criteria although information on test (iii) will be evident from an examination of the Government’s own hospital admission statistics. Whilst specific aspects of the Step 4 provisions have been the subject of ministerial statements to the press or to select committees, it seems unlikely that little formal guidance will be available before 12 July at the earliest. Then if matters proceed as before, departmental guidance (on places of worship, performing arts guidance, &c) will be released first, with legislation just before (or even after) it becomes effective, followed by advice from faith bodies.

In his blog post, Coronavirus: What challenges might English Churches face as they plan for the removal of COVID restrictions on 19 July?, John Stevens, National Director of the FIEC, states that a “round table” meeting with ministers is scheduled for 19 July, “which suggests we may not get much clarity before then”. Likewise, the Diocese of Oxford notes:

“The Church of England Recovery Group is intending to produce new guidance following a likely decision to move to step 4 later this month. The recovery group will need to wait for the decisions of the Places of Worship taskforce and any subsequent additional detail from Government departments, which means it’s likely that church guidance won’t emerge until the week of the 19th. As ever, we’ll write to all parishes as soon as there is settled information to share.”

In assessing the application of the relaxed Step 4 provisions to services and other activities, faith organisations will need to take into account the concerns expressed by those who are particularly vulnerable, those medically unable to be vaccinated, and those to whom vaccination has not yet been offered. For faith groups, the relaxation of COVID-19 restrictions may prove a more difficult exercise than their imposition.

Reforming marriage law in England & Wales

Thursday saw the launch of Professor Russell Sandberg’s book Religion and Marriage Law: The Need for Reform at a webinar organized by the Ecclesiastical Law Society. The discussants were Baroness Hale of Richmond, formerly President of the United Kingdom Supreme Court; Professor Gillian Douglas, formerly Dean of the Dickson Poon School of Law, King’s College, London; and Professor Jane Mair, Professor of Private Law, University of Glasgow. The moderator was Professor Mark Hill QC, former chairman of the Ecclesiastical Law Society.

As a segue to the webinar, Russell has written Would Reform of the Law on Validity Help Mitigate the Problem of Unregistered Religious Marriages? which will be posted on Monday.

Individual cups for Holy Communion (again)

Papers for the Church of England General Synod on 10 July 2021 included a number of questions (Q126 to Q129) relating to individual cups for Holy Communion, further to the Question initially raised by Mrs Mary Durlacher (Chelmsford) in July 2020, and the associated legal opinion The legality of the use of individual cups for communion wine. Whilst the position of the Legal Advisory Commission of the General Synod of the Church of England has not changed since our last review in May 2021, the response to the questions by The Rt Worshipful Morag Ellis QC, Dean of the Arches and Auditor, provided an insight to the working of the Commission:

“It is the Commission’s policy not to engage publicly in disputed questions, as its role is to give ‘authoritative and entirely independent legal opinions’. The Commission does not, therefore, issue responses to other legal opinions. It nevertheless takes account of legal opinions which are brought to its attention if it considers that they raise points that merit further consideration and revises its published opinions if it considers it necessary to do so. The Commission did not consider that the opinion referred to in the question affected the substance of the advice it had previously given in its published opinion.

“The constitution of the Legal Advisory Commission is available online. It is the Commission’s policy not to engage publicly in contentious matters, as its role is to give ‘authoritative and entirely independent legal opinions’. The Commission necessarily decides whether a matter is contentious for the purposes of its policy.”

With regard to the reconsideration of its advice:

“The Commission is able to reconsider, and if it considers it appropriate to do so, revise opinions previously issued by it. It might do so, for example, if the applicable law were to change or if a relevant statute or authority had not previously come to its attention. It does not consider that there is any need to revise or withdraw the advice referred to in the question”,

and on the grounds on which the Legal Advisory Commission decides whether or not to ‘star’ its opinions for publication:

“The Commission considers a number of factors. They include whether the opinion is intended to be for the general assistance of members of the Church of England or has been produced at the request of a particular body to address a particular point that is of concern to that body. It is the Commission’s policy not to engage publicly in disputed questions, as its role is to give ‘authoritative and entirely independent legal opinions’. Its decision whether to star an opinion for publication will take account of that policy.”

Centre for Asian Legal Studies

The Centre for Asian Legal Studies is holding a Virtual Roundtable based on the Routledge Handbook of Freedom of Religion or Belief, Silvio Ferrari, Mark Hill QC, Arif A Jamal and Rossella Bottoni (eds). The Handbook seeks to widen our knowledge of the right to freedom of religion or belief in different cultural and legal systems. It presents an analysis of the politics of freedom of religion and studies the new relevance of freedom of religion worldwide and the role that freedom of religion can play in managing religious and cultural diversity in society.

The Roundtable via Zoom will be held on Friday 30 July 2021 at 15:30 SGT/08:30 BST. Register here: of Commentators:

  • Prof Ann Black, University of Queensland – Moderator
  • Prof Melissa Crouch, University of New South Wales
  • Dr Nadirsyah Hosen, Monash University.

This Roundtable is organised by the Centre for Asian Legal Studies (NUS Faculty of Law). The Virtual Roundtables on Asian Law is an online series by the Centre for Asian Legal Studies (CALS). It brings together legal experts to share critical perspectives on topical issues on the law in Asia. This series is open to academics, public officers, members of civil society, and legal practitioners from anywhere in the world who are interested in gaining a deeper knowledge of Asian approaches to various legal issues.

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