Leading lawyers have asserted that a ban by Church of England bishops on the use of individual communion cups for wine during the current pandemic is incorrect.
In a statement just released, six QCs and barristers say they believe "it is lawful to use individual cups" in services – despite the bishops declaring that even in the current health emergency they should not be used.
The hard-hitting legal opinion by the lawyers says: "The House of Bishops' present position – that the use of individual cups for distributing communion is illegal – is incorrect as a matter of law. There is no legal barrier to the use of individual cups. It follows that we believe it is lawful to use individual cups."
In March, the Archbishops of Canterbury and York said churches should not use a single shared cup – or chalice – for communion wine because of the risk of transmitting Covid-19. However, bishops also insisted that rather than using individual cups for wine as an alternative, churchgoers would have to make do with just receiving the bread alone.
At July's Church of England General Synod, Mary Durlacher, an evangelical lay member challenged this, describing the use of individual cups for wine as a "valid, common sense, pro tem" way forward.
In response, Bishop of London Sarah Mullally said that the church's Legal Advisory Commission believed it was "contrary to law for individual cups to be used for each communicant". The bishop cited an obscure 16th century law, the 1547 Sacrament Act, which concerns those who "unreverentlie speake against the Sacrament of the bodie and bloude of Christe (sic)".
Now six legal experts asked to given an opinion by Mrs Durlacher say: "In our opinion, there is no bar in the Sacrament Act 1547 to the use of individual cups when distributing communion in both kinds, and neither the Canons of the Church of England nor the rubrics of the Book of Common Prayer contain or impose any prohibition."
They continue: "Consequently, there are no grounds for concluding that the use of individual cups at communion is contrary to the law. The conclusion that individual cups are legal is a conclusion which is reached, as a matter of law, independent of the present public health emergency. They were legal before the first case of Covid-19, they are currently legal, and they will continue to be legal when the pandemic is over."
The opinion was delivered by Stephen Hofmeyr QC, Mark Cawson QC, Andrew Wales QC, Carolyn Johnson, Carl Fender and Jonathan Schaffer-Goddard.
Ultimately, it is for a court of law to pronounce on whether a particular view of the law is correct or not, so this legal opinion does not necessarily mean churches have a clear green light to go ahead and use individual cups, unless an official legal verdict is reached.
Experts say that churches which ignore what the bishops have said could find themselves exposed to sanction if the bishops' opinion is upheld in court. Equally, however, they state that if this latest legal opinion is correct, then the House of Bishops could find itself exposed to sanction.
The lawyers say the opinion of the church's Legal Advisory Commission (LAC) given at Synod "does not accurately reflect the law and therefore the position taken by the House of Bishops is based on an incorrect foundation. We believe that there is no legal barrier to the use of individual cups and that, by the use of individual cups, the distribution of communion in both kinds is lawful."
They say that the LAC view is "a complete misreading of the Act... There is no prohibition in the Act on the use of individual cups to distribute communion because the Act is entirely silent on the question of the methods for delivering and ministering communion. It is simply not concerned with the matter. Therefore, unless there is some prohibition elsewhere in either the common law or canon law, there can be no basis for saying that there is a legal bar to the use of individual cups to distribute communion."
They add: "It is unclear on what possible grounds a global pandemic is not a basis for departing from the norm (if there is a norm) by using multiple individual cups."
And in a challenging aside, they say that if individual communion cups are unlawful, then separate communion wafers – rather than one shared loaf of bread – might well be too: "The question that arises... is, on what basis might individual cups be said to be unlawful that would not equally apply to individual wafers?"
Referring to potential health issues with individual cups, the lawyers say: "The practical and public health questions raised by the use of individual cups are not readily distinguishable from those which arise when considering individual cups of the non-sacramental sort. That individual vessels are used in public throughout the country still should indicate that concerns here are likely to be surmountable."
Leading Anglican theologian Dr Andrew Goddard has already described the bishops' ban on communion cups as 'legally dubious... biblically baseless, theologically erroneous, and likely to prove pastorally damaging'.
David Baker is a Church of England minister, Contributing Editor at Christian Today, and Senior Editor of Evangelicals Now.