COVID-19 in Scotland

On Wednesday 1st September 2021, First Minister Nicola Sturgeon announced the introduction of vaccine passports – subject to parliamentary approval. Under the proposed vaccine certification rules, those over the age of 18 will need to show they have had both doses of the vaccine before they are allowed entry to nightclubs and “adult entertainment venues”, to unseated indoor live events with more than 500 people in the audience, to unseated outdoor live events with more than 4,000 people attending, and to any event of whatever kind that has more than 10,000 people in attendance. It’s unlikely to affect any religious services, but the 500-person threshold may possibly apply to concerts held in churches.

COVID-19 legislation and guidance

As we noted in the update on 22 August, in view of the reduced rate in the production of legislation and guidance, as from 1 September our rolling updates will be published on a monthly basis, adding the new material to COVID-19 Coronavirus: legislation and guidance as before.

On 1 September, the Church of England published a revised version of Opening and managing church buildings in step 4 of the Roadmap out of Lockdown. As with the earlier version, the relevant parts of the CofE guidance for most situations have been gathered in this single document. Where further measures may be considered by local churches, it links to appropriate additional guidance, and “if issues covered in previous guidance are not included. it is because they are no longer a specific consideration in Step 4”.

Reforming the Human Rights Act?

Joshua Rozenberg reports that judges at the European Court of Human Rights have told the MoJ’s Independent Human Rights Act Review chaired by Sir Peter Gross that reforming the Human Rights Act 1998 could lead to more defeats for the UK Government at Strasbourg. The minutes of the meeting were published on Tuesday, and the judges – Spano P and Eicke and O’Leary JJ – explained that the Human Rights Act’s language was “a useful and advantageous conduit” through which UK domestic court decisions reached the ECtHR because UK judges would have already translated their rights discourse into the language of the Convention via the Human Rights Act. That, they argued, made it easier for the UK judge at Strasbourg “to translate the UK’s position in a judicial formation where no other common law judge would be present”. They also told the Review that analysis of Strasbourg case-law by UK superior courts “showed an in-depth understanding of and engagement with the Court’s case-law” and that those analyses were sometimes relied upon by the ECtHR in its judgments against other states parties.

They also pointed out that there had been very few adverse judgments against the UK and that “[i]n considering the operation of the Human Rights Act, it was worth considering that any future divergence between that Act and the Convention might result in more cases being brought before the Court from the UK”. Verb. sap. [With thanks to Joshua Rozenberg.]

if you want to see our own take on the religious aspects of the Act it’s here, as part of the evidence submitted to the Review by Human Rights in Action. And see the latest post on Verfassungsblog: link below

Reforming wedding law: a Welsh perspective

Russell Sandberg reports that Mick Antoniw MS, Counsel General and Minister for the Constitution in the Welsh Government, has confirmed that it “has expressed support” for the Law Commission’s proposals on marriage law. Marriage law is not currently a devolved  matter, and the reply states that the Welsh Government “will watch the UK Government’s response” to the Law Commission’s final report “with interest before considering our position and any representations we would need to make in order to pursue our policy objectives.”

Whether or not marriage law should be devolved to Wales was a matter beyond the terms of reference of the Law Commission’s inquiry (and probably not a matter for this blog!), but we haven’t forgotten that in order to allow those with a qualifying connection to marry in a parish church, the Church of England legislated by Measure while the Church in Wales had to promote a private bill at Westminster.

Two upcoming ELS events

Mission and Pastoral Measure 2011 webinar, 13 September: Wendy Matthews, Head of Mission, Pastoral and Church Property at the Church Commissioners, is leading a review of the Mission and Pastoral Measure 2011: a consultation has been launched until 30 September. The Ecclesiastical Law Society is holding a Zoom webinar on the Green Paper and consultation, with Eve Poole, Wendy Matthews and Alex McGregor. There will be an opportunity for questions and discussion.

Open to ELS members only: sign up by Friday 10 September. Zoom links will be sent out  24 hours before the event.

London Lecture, 15 September: Morag Ellis QC, Dean of the Arches and Auditor, will speak on “Clean and green – law and the carbon-neutral Church”. Her lecture, which is free of charge, will be in person rather than via Zoom. There are still spaces available but they are limited and prior booking is essential. 17:30-19:00 at Winckworth Sherwood, Minerva House, 5 Montague Close, London SE1 9BB: refreshments from 17:00.

Quick links

• IICSA: Child protection in religious organisations and settings Investigation Report: “As set out in the report, we have seen egregious failings by a number of religious organisations, and cases of child sexual abuse perpetrated by their adherents” and “it is axiomatic that neither the freedom of religion or belief, nor the rights of parents with regard to the education of their children, can ever justify the ill-treatment of children or prevent governmental authorities from taking measures necessary to protect children from harm.”
• Max Steinbeis, Verfassungsblog: Lean Authoritarianism: suggests that the Government’s approach to reforming judicial review is incrementalist and that there are more sweeping reforms of constitutional law to come.
• Peter Swire, Lawfare: UK’s Post-Brexit Strategy on Cross-Border Data Flows: an interesting US perspective on the current UK thinking on data protection, particularly in light of the Culture Secretary’s recent avowal on that he wanted to reform the current laws “so that they’re based on common sense, not box-ticking”.
• Cathérine Van de Graaf, Strasbourg Observers: The Human Rights Centre submitted a joint third party intervention in a case before the ECtHR against Belgium concerning a ban of religious symbols in public high schools: on a case currently before the ECtHR about two Muslim girls banned from wearing the hijab in Belgian public high schools.