The ongoing ‘Firebreak’ lockdown in Wales – where places of worship have been ordered to close except for weddings and funerals – has raised questions about its compatibility with freedom of religion or belief under Article 9 ECHR.
Shortly before the Firebreak began, a group of clergy wrote to the First Minister to say that they would intend to apply for a judicial review should the lockdown of places of worship go ahead arguing that this breached Article 9. Their letter before claim can be found here (via Law and Religion UK )
The issue of whether non-qualifying marriages (that is, marriages that do not come under the Marriage Act 1949 such as unregistered religious marriages, humanist weddings and wedding ceremonies by independent celebrants) are covered by rules allowing marriages has also arisen again.
The Welsh firebreak Regulations only provide an exception for attendance at ‘a solemnization of a marriage or formation of a civil partnership’.
The reasonable excuse to attend a celebrate a solemnisation is not in the new Regulations.
Moreover, the Frequently Asked Questions Guidance (last updated on 23 October) clarifies that only ‘Places of worship and Register Offices are able to remain open for wedding and civil partnership ceremonies’.
‘Other ‘’approved premises’’ such as hotels, are required to close alongside other businesses in the hospitality sector’.
‘Wedding or civil partnership ‘receptions’ are not permitted, and in practice many venues are required to close for the duration of this short lockdown’.
It remains the case that: ‘The number who are able to attend a ceremony indoors is limited by the capacity of the venue’.
Despite also being updated on 23rd October, the Guidance to local authorities, approved premises and places of worship on marriages and civil partnerships: coronavirus is not up to date and refers to receptions and outdoor gatherings (both of which are banned during the firebreak lockdown):
‘In addition, gatherings, to a maximum of 30 individuals, are permitted indoors and outdoors. This means that wedding receptions can also take place up to this cap.’
This is clearly inaccurate for the duration of the firebreak
The guidance does, however, make it clear that the reasonable excuse for weddings applies only to marriages under the Marriage Act 1949:
Solemnisation of marriage ‘has a particular meaning in law which includes the process by which the legal basis of a marriage or civil partnership is established and registered. In a faith context these ceremonies often have religious aspects which are integral and are therefore enabled by the Regulations. However, ceremonies which do not have the role of registering the marriage or civil partnership, such as blessing ceremonies, can take place outdoors, subject to the considerations set out below in respect of outdoor gatherings.’
‘The common understanding of the term ‘’wedding’’ may include aspects which sit outside the legally recognised process. These aspects are differently enabled by the Regulations. The distinctions here are the same as those already established in practise and procedure for licensing.’
Since such other gatherings are banned under the firebreak Regulations, it would appear that non-qualifying marriage ceremonies are also banned.
This Guidance also defines ‘place of worship’ as follows:
‘The term “place of worship” is not defined in the Regulations. For the purposes of this guidance, the term includes a confined or enclosed space, which is used for religious ceremonies, collective prayer and worship, belief or similar gatherings, such as a church, gurdwara, mosque, temple, synagogue, prayer, meeting or related hall’.
This further suggests that belief wedding ceremonies are banned during the firebreak.
On the definition of place of worship, ccompare the earlier Guidance on reopening places of worship: coronavirus which included a different definition that included belief organisations:
‘The term “place of worship” is not defined in the Regulations. For the purposes of this guidance, the term includes a confined or enclosed space, within buildings or outdoors, which is used for religious or belief ceremonies, collective prayer and worship or similar gatherings, such as a church, gurdwara, mosque, temple, synagogue, prayer rooms, meeting houses, vestries and halls where worship may be carried out’.
That earlier guidance also specified that ‘the term a “religious or belief body” refers to an organised group of people who regularly meet for religious worship or to uphold and promote philosophical beliefs and meet regularly for the purpose’.
While that earlier guidance was progressive and clearly in line with Article 9 ECHR, it is questionable whether the current law and guidance under the firebreak is human rights compliant.
All weddings are banned in Wales except those in places of worship and register offices. Allowing register office weddings makes sense but then to only allow weddings in places of worship only is discriminatory.
Allowing weddings in places of worship but not in hotels during the firebreak does not make sense given that places of worship like hotels are otherwise closed.
The ban on non-qualifying wedding ceremonies would be difficult to justify under Article 9.
The overall question would be be whether firebreak lockdown limits are justified on public health grounds. But this would be more difficult to argue if limits are seemingly arbitrary as appears to be the case here.
The decision to only allow marriages in register offices and places of religious worship is questionable.
It is also questionable why religious buildings can be open for marriages and funerals but no other rites or acts of worship.
The Welsh firebreak is just for a fortnight but it is to be hoped that the regulatory regime that replaces it will be not as inconsistent and discriminatory.
Previously, the Welsh provisions on these matters were more progressive than those across the border. It is to be hoped that the rules that apply once the firebreak has ended will be similarly progressive.