The Christian Legal Centre’s Roger Kiska analyses how the Coronavirus Act will affect Christian freedoms in the UK. Read and download our summary guide on the Coronavirus Act 2020.
“In many ways, it is hard for modern people living in First World countries to conceive of a pandemic sweeping around the world and killing millions of people, and it is even harder to believe that something as common as influenza could cause such widespread illness and death.”
Excerpt from ‘The 1918 Spanish Flu Pandemic: The History and Legacy of the World’s Deadliest Influenza Outbreak’ (Charles Rivers Editors)
Public health emergencies are not new to history. When the bubonic plague arrived in Europe in October 1347, it is estimated that between 30-50% of those populations affected by the disease perished. In more modern times, it is estimated that the 1918 flu pandemic killed as many as 100 million people internationally. In 1956, Polio ravaged the United Kingdom. In the 1980’s, HIV/AIDS brought a level of public fear spurred by the media which is reminiscent of the sense of panic gripping many people today because of coronavirus.
We will only be able to objectively evaluate the seriousness and extent of how deadly coronavirus really is in hindsight. There are currently far too many unknown factors, chief among them being a clear mortality rate and assessment of how many people have actually contracted the virus.
A state of emergency
That being said, our health experts, both at home and abroad, have deemed coronavirus to be serious enough to adopt a national state of emergency, giving the government sweeping new powers to prevent the spread of the disease and limit certain civil and economic liberties. The United Kingdom is far from unique in adopting broad restrictions in the name of public health and safety. In fact, every country in Europe has adopted some level of restrictions to combat the virus; some greater than those in the United Kingdom and others notably less restrictive.
As countries have been affected differently by the virus, it would not be fair to judge the UK by a comparative standard. However, it is fair, and indeed necessary, to assess the restrictions the government has put into place in relation to both their necessity and proportionality to serving the public good.
The government’s response
The two principle instruments governing these restrictions are the Coronavirus Act 2020, which empowers the government to enact restrictions if deemed necessary for public health, and in England, the Health Protection (Coronavirus, restrictions) (England) Regulations 2020. Guidance on how restrictions are to be implemented have also been issued by several government departments and can be found at the government’s website at www.gov.uk
Christian Concern has put together a helpful summary of both the Act and the Regulations. The purpose of this article is to evaluate some of the more sweeping provisions adopted by the government in response to coronavirus, looking at both the necessity and proportionality of the restrictions taken.
Freedom of religion
It is important to note that freedom of religion, in principle, has not been suspended by the government’s emergency measures. That being said, significant restrictions have been placed on freedom of worship as church attendance has not been deemed to be an essential service.
Regulation 5(5) mandates the closure of places of worship except for uses permitted by Regulation 5(6), which are: (a) for funerals; (b) to broadcast an act of worship; or (c) to provide essential voluntary services or urgent public support services (such as food banks, support for the vulnerable or homeless, blood donations and other forms of support in an emergency).
While these restrictions on freedom of worship are not unique to the United Kingdom, they are certainly an indicator of the level of value the government esteems church attendance and participation in a church community. While someone in the United Kingdom is free to purchase alcohol (both off-license and licensed), go to a bicycle shop, secure a loan, go to the chiropractor or dry cleaner, or any other number of activities, church attendance is punishable by fine or forced physical removal to their home. Furthermore, while the government allows churches to continue to function in their public outreach providing services for the vulnerable, they clearly miss the point as to the primary spiritual role of churches. Sadly, it is just another sign of how we have lost the Christian heart of the nation.
Perhaps as dangerous as coronavirus is the threat of addiction relapse, suicide or mental illness which may come from the crippling isolation and pervasive fear caused by the response to the virus. The public benefit of functioning churches would be invaluable to these vulnerable people, as well as to believers around the country whose lives are anchored by their faith and participation in their church community. Would a church building left open for prayer (while observing social distancing) truly pose a greater threat to health than a supermarket?
Street preaching is also impacted by the Regulations. Regulation 6 sets out the circumstances in which a person is allowed to leave the place where they are living. While an argument could be made that Regulation 6(k), allowing ministers of religion to go to their place of worship, may apply to street preachers, this argument is certainly undermined by Regulation 5(5) which calls for the closure of houses of worship for preaching purposes except for public broadcast.
If a street preacher is deemed by an authorised person (constable, police community support officer, or a person designated either by the Secretary of State or a Local Authority for these purposes) to be outside of the residence where they are living without meeting one of the statutory exemptions, they can be subjected to a £60 fine for a first offence (£30 if paid within 14 days), £120 for a second offence and £960 for subsequent offences. The fines can be challenged at a later time before a magistrate, and I would suggest that there are compelling freedom of speech arguments and questions about the proportionality of the restrictions imposed on street preachers which could make a legal challenge compelling.
The contrast of the responses to street preacher Mike Overd preaching on the street in villages around Taunton, and Rev. Pat Allerton in London, playing Amazing Grace and saying the Lord’s Prayer on the street from the safety of his car, speaks volumes about what public pundits deem ‘acceptable’ preaching. Although both essentially preached the gospel, one was applauded for his courage, the other led away and fined for speaking a message of repentance. The law being applied in this arbitrary way suggests that authorities are making it up as they go along, showing leniency to messages which they don’t find off-putting while punishing those they do.
One of the more under-reported and disturbing measures brought in by the Coronavirus Act is the increase in powers given to mental health practitioners to commit individuals. Schedule 8 of the Act replaces key safeguards in the Mental Health Act, allowing for committal of an individual by a single practitioner (as opposed to two). For those already in hospital, the period a patient can be detained following a report from a clinician or practitioner is changed from 72 hours to 120 hours. The period in which a patient can be detained pending a report by a practitioner or clinician is changed from 6 hours to 12 hours.
Little justification is provided for the loosening of civil liberty safeguards and the increase in hours allowed for detention. Indeed, it should be seen as a very troubling exercise of authority to allow a single practitioner to have the power of committal. The increase in these powers, while at the same time closing churches as an avenue for mental and spiritual well-being, offers a worrying picture for people struggling with anxiety or mental illness.
The Coronavirus Act also contains some potentially concerning provisions relating to a Local Authority’s obligations towards the most poor and vulnerable of our citizens. Schedule 12 of the Act temporality suspends many of the core duties owed by local authorities to vulnerable adults and children. Easements are granted from assessing the needs for care and support of children and adults; from meeting the needs and preparing care plans for those in need; for overriding assessment refusals for the mentally ill; for providing continued care and support when a person moves or for transitioning care and support for a child into adult care.
While these provisions are among the most alarming in the Act, they were envisioned as a measure of last resort where Local Authorities were so gutted by the virus that they no longer had capacity to act. The Guidance issued by the Secretary of State for Health on 31 March 2020 alleviates some of the more serious concerns by calling on Local Authorities to “take all reasonable steps to continue to meet needs as now.” They are expected to “carry out proportionate, person-centred care planning” and “continue to involve users and carers” in any changes to plans that are being made. While financial assessments are suspended, Local Authorities may still charge people retrospectively, giving service users reasonable information in advance of any such charges. The Guidance also calls on Local Authorities to “respond as soon as possible to requests for care and support.”
Sections 59-64 of the Act postpones elections, referendums, recall petitions and the timing of the canvass (Northern Ireland). At the same time, Parliament went into recess earlier than its scheduled date of 31 March 2020. Given the sweeping new powers granted by the Act to the Secretary of State, and the now largely absent level of parliamentary scrutiny, genuine questions about whether the Executive is properly checked and balanced arise. The judiciary has also been crippled by the crisis and many cases have been suspended into the indefinite future.
That being said, the power of judicial review continues to be an important counter-weight to executive overreach. The Christian Legal Centre, for example, has already announced that it will judicially review the government’s DIY abortion policy, which was enacted outside of the authority of the Coronavirus Act but nonetheless given the stamp of approval by the Secretary of State for Health.
A ‘new normal’?
The Act and the Regulations have also closed schools, businesses, given the government new powers to test people without consent and to quarantine them, and largely suspended freedom of assembly. The means of ensuring compliance, police and investigatory powers and privacy rights are all issues that may later be resolved by courts or investigated by Parliament, depending on how and to what extent authorities exercise their powers during the crisis.
One thing is clear, the ‘new normal’ of life during the pandemic has led to as many new questions as there have been answers. The UK is a land where rule of law, civil liberties and personal and collective rights are cherished and championed. History will be the judge of how well we navigated the murky waters of protecting health and safety, the economy and whether the freedoms that have been taken from us was warranted.
I pray for an end to this crisis. I pray for the suffering, the dying and the isolated. I pray for the economically distressed. I pray for our government. Above all, I pray for revival. While this crisis has shown that our government does not deem freedom of worship to be an essential service, this crisis may just show us all how essential our faith in God really is.