Law and religion round-up – 3rd July

COVID-19 update

The final Terms of Reference for the UK COVID-19 Inquiry were published on Tuesday. The original draft terms have been revised to include “the closure and reopening of the hospitality, retail, sport and leisure, and travel and tourism sectors, places of worship, and cultural institutions”. The Inquiry is now officially under way.

Although we are not publishing regular posts on COVID-19, we note that the latest ONS data for the week ending 24 June 2022 reported that “[t]he percentage of people testing positive for coronavirus (COVID-19) continued to increase across the UK, likely caused by increases in infections compatible with Omicron variants BA.4 and BA.5”. In England and Wales, the estimated number of people testing positive for COVID-19  equated to around 1 in 30 people; 1 in 25 people in Northern Ireland; and 1 in 18 people in Scotland.

As to guidance from UK faith groups, that of the Church of England is perhaps the most up-to-date, yet it was last updated on 3 May 2022, when the guidance relating to the administration of Holy Communion was changed “to clarify that unless there are clear and objective reasons not to, Holy Communion should now be offered in both kinds to communicants”.

Archbishops’ Commission on Racial Justice releases First Biannual Report

On 28 June 2022, the Archbishops’ Commission for Racial Justice released the first of its biannual Racial Justice reports, from which extracts relevant to the consistory courts are posted here. The Report’s recommendations are heavily influenced by the Archbishop of Canterbury’s Synod comments on Rustat, which were dismissive of the “false narrative” of the findings of the court.

We noted that drawing general conclusions from a single finding is not a good practice, particularly when these are far-reaching, and to be considered “as a matter of urgency”. Those seeking a broader view of the involvement of the Church of England and its ecclesiastical courts on “contested heritage” will find links in Index – Contested heritage.

With regard to the recommendations on the selection and training of ecclesiastical judges, there are echoes of former Archbishop Carey’s comments in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880. However, we note that The Church of England (Miscellaneous Provisions) Measure, GS 2272, which includes provisions on Ecclesiastical jurisdiction, – Judges: appointment and retirement (clause 7), Judges: training (clause 8), is due for First Consideration by General Synod in July 2022.

Freedom of religion and belief

On Tuesday in Westminster Hall, the Commons debated the forthcoming UK-hosted International Conference on the Freedom of Religion or Belief: you can read the Hansard here.

Collective worship in state schools

In a report to the UN Committee on the Rights of the Child, the UK Government has responded to the Committee’s call for a review of the requirement for all state-funded schools to hold a daily act of worship, as follows:

“130. In England and the Devolved Governments, schools must provide religious education and collective worship or religious observance for pupils, and promote their spiritual, moral, and cultural development. Parents may withdraw their children from any or all acts of collective worship or observance, and in some jurisdictions, pupils over 16 have the right to withdraw. There are currently no plans by UK Government, Welsh Government or Northern Ireland Executive to review this policy in state funded schools. Scottish Government is currently examining whether to review the policy on the right to withdraw.” [Emphasis added: with thanks to the National Secular Society.]

Faculty Jurisdiction (Amendment) Rules 2022

The Faculty Jurisdiction (Amendment) Rules 2022 came into force on 1 July, amending the Faculty Jurisdiction Rules 2015.

Rule 2 provides that persons proposing to undertake certain works must, as part of the procedure, provide an explanation of how they have had due regard to guidance issued by the Church Buildings Council on reducing carbon emissions. Rule 3 makes minor amendments to the procedure for consultation before faculty proceedings can begin, including by imposing a requirement that, where the online faculty system is used for the consultation, responses to the consultation should also use the online system. Rule 4 introduces the Schedule, which makes amendments to Lists A and B in Schedule 1 to the 2015 Rules. In particular, the amendments in Part 2 of the Schedule are concerned with promoting environmental protection (for example, fitting boilers which do not use fossil fuels and installing charging points for electric vehicles).

The Church House Legal Office has prepared an informal Keeling Schedule of the Faculty Jurisdiction Rules as they have effect from 1 July 2022, incorporating the amendments made by the Faculty Jurisdiction (Amendment) Rules 2022: available here.

Burkinis in Grenoble

The judgment of the Conseil d’État on the Grenoble burkini case is now available, here. Perhaps the key point in the judgment is this:

“9. The municipality of Grenoble … maintains that it introduced the adaptation … on the grounds of allowing users who would like to be able to cover their body more, whatever the reason for this wish. However …  the adaptation expressed by Article 10 of the new regulations must be regarded as having the sole purpose of authorizing bathing suits commonly referred to as “burkinis” … [and] is intended to satisfy a claim of a religious nature. Thus, it appears that this very targeted derogation actually responds to the sole wish of the municipality to satisfy a request from a category of users and not, as it asserts, from all users. While … such an adaptation of the public service to take account of religious convictions is not in itself contrary to the principles of secularism and neutrality of the public service … it does not respond to the reason for derogation put forward by the municipality [and] is, by its very targeted nature and strongly derogatory to the common rule, reaffirmed by the internal regulations for other bathing suits, without any real justification for the difference resulting treatment. It follows that it is likely to affect both the respect by other users of the rules of the common law …”

On that basis, the Conseil concluded that the Grenoble authorities had disregarded the conditions under which the manager of a public service could adapt it to the needs of users, “including to take account of religious convictions”. The appeal was therefore rejected.

Russian membership of the Council of Europe

On Wednesday, the Committee of Ministers of the Council of Europe adopted the resolution on the legal and financial consequences of the cessation of membership of the Russian Federation in the Council of Europe which had been agreed by the Ministers’ Deputies on 23 March. Under it, “The Russian Federation shall cease to be a High Contracting Party to the European Convention on Human Rights on 16 September 2022”.

The expulsion will not affect cases brought against Russia in the European Court of Human Rights over alleged violations of the Convention which occurred prior to 16 September 2022.

C of E July Synod: plans for “net zero carbon” by 2030

On 23 June, the Church of England announced plans to help its 16,000 local churches and 4,500 schools reach carbon net zero by the end of the decade. These will be considered by General Synod on the afternoon of Friday 8 July 2022. The Press Release and Synod Motion are reproduced in our post together with some initial observations.

In February 2020, it was fairly clear to those with expertise in this area that the targets set were far from “SMART“. Nevertheless, these targets appear to have catalysed a strong response from within the C of E; further, more thought seems to have been given to the scope of “net zero” and what it means in practical terms. However, over two years on, only 29 of the 42 Diocesan Synods have passed a motion committing to “net zero” carbon.

Some clarity has been given to interpretation by the consistory courts, and although some churches have been granted a faculty for a range of low carbon alternatives – new underfloor heating; new flooring, new internal lighting and installation of solar panels to the south slope of the nave and south aisle roofs; installation of an Air Source Heat Pump (“ASHP”), as in Re St Leonard Southoe [2022] ECC Ely 4 – other recent cases have identified the different approaches within the courts, and a range of environmental expertise to assess the options available.

In Re St Mary the Virgin Dedham [2022] ECC Chd 2, the Chancellor noted that the DAC Heating Advisor “does not appear to have felt able to make a final recommendation” but was able to rely upon the Archdeacon who provided the necessary confirmatory advice on the replacement boiler, thereby not needing to decide “to follow one approach [of earlier judgments] rather than the other [22].

L&RUK most-read posts

A list of the most-read posts in June 2022 has now been added to the previous monthly summaries in the blog’s Index. In common with the May statistics, although the “All time” top-ten list remains unchanged, those for the previous week and for three last months include a significant number of recent posts; in particular, eight of the ten “7 Days” entries were posted within this period.

Quick links

And finally

This week it was reported that it is customary in some communities to get the married couple a present on their wedding day. However, one brother of the bride took gift-giving to the next level at his sister’s ceremony and surprised his sister on her wedding day with a lifelike waxwork of their dead father; the wax figure was made in a seated position and was wheeled down the aisle sat in a wheelchair.

Whilst our reaction would be “Yuk”, the India Times reported that the gesture was well received. The occasional “flash dance” might be OK in the C of E, but in the words of the Dad’s Army Verger, “his Reverence wouldn’t like it”. The Reverend Timothy Farthing was played by Frank Williams, who died last week. In his private life he had been member of the General Synod and served three terms as a representative of the diocese of London, where his on screen persona followed him; on one occasion when he was voting and went through the laity door and one of the tellers stopped him and to asked if he was going through the right one.

3 thoughts on “Law and religion round-up – 3rd July

  1. Keeling Schedule of the Faculty Jurisdiction Rules. I’ve downloaded this and am puzzled by part of it:
    Table 1
    List A – Matters which may be undertaken without a faculty and without the need for consultation
    This table prescribes matters which may be undertaken without a faculty subject to any specified conditions.
    See as to matters which may not be undertaken without a faculty despite being included in List A. ( emphasis added)
    Where are ‘the general notes’?
    There is PART 20 MISCELLANEOUS AND GENERAL: but nothing there seems relevant. I’ve searched for ‘general notes’ and the only other occurrence is in List A.
    Has anyone found ‘the general notes’?

      • Thank you, David, for a speedy and very helpful response and link. I’ve downloaded and looked at Schedule 1 … The list of items there also appear in the Keeling schedule at:
        Excluded matters – general
        3.5.—(1) Rules 3.2 to 3.4 do not permit the undertaking of any of the following matters …
        My apologies for emphasising words general notes using a triangle bracket and star either side! They appeared in my draft reply but were gone and the words general notes when I uploaded. If I need similar in future I’ll just put the words/phrase in upper case.

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