No cake was consumed in the compilation of this post…

Marriage law in England and Wales

In response to the question by Baroness Cox (Crossbencher), “further to the Integrated Communities Strategy Green Paper published on 14 March 2018, whether they can provide an update on their progress in exploring ‘the legal and practical challenges of limited reform relating to the law on marriage and religious weddings'”, Lord Wolfson of Tredegar responded:

“This is a difficult issue which requires careful consideration. The Law Commission are looking at aspects of the problem through their review of the law governing legal marriage ceremonies. This review will present options for reforms to modernise marriage law, including in relation to who can solemnise a marriage and ways of ensuring that fewer weddings conducted according to religious rites result in a marriage that the law does not recognise at all. The Government will consider the case for more comprehensive and enduring reform to marriage law once the Law Commission’s recommendations have been received.

A separate Nuffield Foundation study, launched in September 2020 and due to report shortly, is investigating why marriage ceremonies occur outside of the legal framework for weddings in England and Wales, and the findings of this report will also be carefully considered. Any proposals affecting how religious groups are permitted to conduct marriages must be thoroughly assessed for their fairness”. (24 January 2022).

Humanist marriages in England and Wales

On Thursday 27 January, prior to the Westminster Hall General debate on Humanist marriages in England and Wales, in response to a question from Crispin Blunt (Reigate, Con) on whether the Church of England had any objection in principle to suitably qualified humanist celebrants conducting marriages, the Second Church Estates Commission, Andrew Selous  (South West Bedfordshire, Con) said:

” the Church of England has no principled objection to humanist marriage. However, I know he will be aware that any move from a premises-based system of marriage registration to a celebrant-based one in England and Wales would not be a minor reform and would affect everyone involved in registering marriages. I recognise that Humanists UK have made alternative suggestions recently; while I can understand his frustration about progress, he will know that it is for the Government, not the Church, to make the ultimate judgment on whether and how the current system should be changed.”

With regard to the present absence of provision to enable a Church of England blessing of gay and lesbian relationships, he responded:

“In order to determine where God is leading us, we are engaged in one of the most extensive exercises in consultation, learning and prayer carried out by the Church in recent decades. Both the destination and how we get there are important.”

As to the Westminster Hall debate itself, it was suggested that the Government’s argument against piecemeal change had been undermined by the recent move to continue the permission, first granted because of the COVID pandemic, for outdoor weddings at approved premises and religious buildings:  if such a change could be made now, why did Humanists have to wait for recognition? Russell Sandberg has a helpful summary of the debate here.

Charity Commission for England & Wales: COVID-19

The Charity Commission has updated its Coronavirus (COVID-19) guidance for the charity sector. It suggests that it

“should now be possible for charities to gradually move back to face-to-face meetings and hold any outstanding AGMs or other meetings. However, coronavirus continues to have an impact on charity events and trustees may still need to consider how and if they can hold meetings.”

The Common Cup – a wake-up call

On 26 January 2022, Premier Christian News article “The Holy Communion cup is still a sensitive issue,’ says church leader as CofE releases new Covid guidance” stated “the revised rule around the sharing of the Communion cup still poses a challenge”. Whilst this reflects the interest shown in the social media, the wording in the new guidance, COVID-19 Opening and managing church buildings v2.4  issued on 25 January 2022, is in fact no different from the earlier version COVID-19 Opening and managing church buildings, v2.3 which was issued on 9 December 2021, viz.

“The common cup may now be shared, but the Bishops wish to make clear that, given continued potential risks to health, it remains permissible for the president to be the only person who receives Holy Communion in the form of wine. Whilst variations in forms of service are at the discretion of the minister who is to conduct the service, it is recommended that a consistent policy is worked out in a parish and carefully communicated”.

As we have noted earlier, in the Church of England there seem little likelihood of  the official acceptance of individual cups in the medium term.

Perceptions of risk

Following the lifting of Plan B measures in England from Thursday 27 January, faith organizations and other bodies have been revising their guidance. The Church of England has produced the updated 12-page document COVID-19 Opening and managing church buildings v2.4 (25 January 2022), whilst the Roman Catholic Church in England and Wales has an altogether more concise 2-page Guidance for Churches – January 2022 (24 January, updated 28 January 2022).

Aside from tl;dr issues, the C of E document notes that “Coronavirus (COVID-19) can spread predominantly by droplets and perhaps aerosols (which can linger in the air) from coughs, sneezes and speaking”, whereas the Roman Catholic version has “[t]he main form of virus transmission is via personal oral or nasal aerosol … It is clear from scientific evidence that transmission from surfaces (touch transmission) is now minimal”. The latter also takes a stronger line on insisting that reception of Communion for the congregation is in one kind only, but is more relaxed on the sharing of the Peace and the filling of holy water stoups. A significant omission, however, is any consideration of self-testing, which is covered comprehensively in the C of E version.

Neither set of guidance is glaringly incorrect or 100% precise, but for many of the areas covered there is freedom for those in the pews to make their own value judgment. As we do.

“Here’s one we prepared earlier…

…but forgot to obtain approval for”. The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations 2022, SI 2022/72 repeat a legal change made on 9 Dec 2021 (SI 2021/1382). However, these were subject to the “made affirmative” procedure and, owing to “clerical oversight“, were not ratified by Parliament within the requisite 28 days. They therefore lapsed automatically on 23 January 2022. The repeat Regulations came into force on 27 January 2022.

With thanks to the Hansard Society for identifying this temporary lacuna in the self-isolation regulations.  

Contested heritage

Next week, the hearing of the petition for a faculty for the relocation of the memorial commemorating Tobias Rustat from the Chapel of Jesus College, Cambridge, will take place in the College Chapel. The substantive hearing is scheduled for 2-4 February and will extend into a fourth day if this becomes necessary. Our post, Rustat memorial, Jesus College, Cambridge: procedural and evidential issues, reviews the procedural and evidential issues which were considered in the hearing conducted on Zoom on 8 January 2022, Re Jesus College Cambridge [2022] ECC Ely 1. The faculty application provoked a mass of objections, and many of the objectors have become parties opponent to the petition.

A recent House of Commons Research Briefing (17 December 2021) notes that the public discourse about what to do with monuments to figures who had profited from or defended the slave trade (and others) has included calls for them to be removed, but there is disagreement as to whether that is the right course of action. In January 2021, the then Housing Secretary, Robert Jenrick, stated that he would make the removal of any historic unlisted statue, plaque, memorial or monument subject to planning permission. The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 came into force on 21 April 2021. It applies only in England and requires anyone removing certain statues, memorials or monuments to have planning permission. However, there are five exceptions which include: a listed building, those within a cemetery or consecrated land, or within museum or gallery grounds.

A revised National Planning Policy Framework (NPPF) was launched in July 2021. This “leans towards retaining historic statues, plaques, memorials or monuments in situ and explaining their context, rather than removing them, but does not prohibit their removal”. In a written ministerial statement on 20 July 2021, Jenrick said that one of the policy changes in the NPPF was an “emphasis of the importance of retaining and explaining the historic and social context of historic statues, plaques, memorials or monuments rather than removing them”.

The Police, Crime, Sentencing and Courts Bill completed its Third Reading in the House of Lords on 25 January 2022. However, the relevant provisions relate to criminal damage and remove the monetary threshold for cases involving damage to memorials. This would increase the maximum available penalty for criminal damage to a memorial from three months to 10 years imprisonment, regardless of the financial value of the damage.

• Nicola Barker, UK Human Rights Blog: The Independent Human Rights Act Review and the government’s Bill of Rights: “Do they have anything in common? Relatively little.”
• Conor Courtney, Irish Legal News: NI Court of Appeal: Same-sex couple fail in bid to have both registered on child’s birth certificate: on the judgment in Ms A v Ms J [2022] NICA 3.
• House of Commons Library Research Briefing: Humanist marriage ceremonies in England and Wales. (26 January 2022).
• Hugh Young, Farrer & Co: Is fear of Covid a protected belief? And more on returning to the workplace (again): on X v Y [2021] ET 2413947/2020 (which we noted briefly in the round-up on 26 December): “The case looked at a narrow question in an individual set of circumstances. Employers will need to continue to consider each case on its own facts, exploring that employee’s particular reasoning and circumstances…”