law and the church

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Eilidh nic Sidheag Member # 7125 CTP-Prelim Law and the Church Question 1 List nine (9) laws, or as many as possible if less than nine, concerning clergy that you have found by searching your nearest municipality laws. By municipality, we mean on the village or town level. If there are none, then tell us how you found that out. Municipalities in England do not have authority to make laws concerning clergy. They can only make laws to the extent specifically authorized by an Act of Parliament. To date, they have only been authorized to make laws concerning the following: good rule and government and the prevention of nuisances; public walks and pleasure grounds; open spaces and burial grounds; public bathing; markets; amusement premises and pleasure fairs; and hairdressers and barbers. I found this out from the Crown Copyright paper “Local Authority Byelaws in England” on the Office of the Deputy Prime Minister website. Question 2 If there is a body of laws between the municipality laws and the state/provincial laws where you live, list nine (9) laws, or as many as 1 May 23 2014

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Page 1: Law and the Church

Eilidh nic SidheagMember # 7125

CTP-Prelim

Law and the Church

Question 1

List nine (9) laws, or as many as possible if less than nine, concerning clergy that you

have found by searching your nearest municipality laws. By municipality, we mean on

the village or town level. If there are none, then tell us how you found that out.

Municipalities in England do not have authority to make laws concerning clergy. They can only

make laws to the extent specifically authorized by an Act of Parliament. To date, they have only been

authorized to make laws concerning the following: good rule and government and the prevention of

nuisances; public walks and pleasure grounds; open spaces and burial grounds; public bathing; markets;

amusement premises and pleasure fairs; and hairdressers and barbers. I found this out from the Crown

Copyright paper “Local Authority Byelaws in England” on the Office of the Deputy Prime Minister

website.

Question 2

If there is a body of laws between the municipality laws and the state/provincial laws

where you live, list nine (9) laws, or as many as possible if less than nine, concerning

clergy, that you have found by searching this area.

There is no law-making body at this level in England.

Question 3

List nine (9) laws concerning clergy that you have found by searching your

state/provincial laws.

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There is no law-making body at this level in England.

Question 4

List nine (9) laws concerning clergy that you have found by searching your national

laws.

1) From The Burial Laws Amendment Act 1880, section 1:

“Any relative, friend, or legal representative having the charge of or being responsible for the burial of a

deceased person may give forty-eight hours notice in writing, indorsed on the outside “Notice of

Burial,” to, or leave or cause the same to be left at the usual place of abode of the rector, vicar, or other

incumbent, or in his absence the officiating minister in charge of any parish or ecclesiastical district or

place, or any person appointed by him to receive such notice, that it is intended that such deceased

person shall be buried within the churchyard or graveyard of such parish or ecclesiastical district or

place without the performance, in the manner prescribed by law, of the service for the burial of the dead

according to the rites of the Church of England, and after receiving such notice no rector, vicar,

incumbent, or officiating minister shall be liable to any censure or penalty, ecclesiastical or civil, for

permitting any such burial as aforesaid. Such notice shall be in writing, plainly signed with the name and

stating the address of the person giving it, and shall be in the form or to the effect of Schedule (A.)

annexed to this Act.”

Source: Legislation: UK. The National Archives, 1880. Web. 3 May 2014.

<http://www.legislation.gov.uk/ukpga/Vict/43-44/41/section/1#text%3Dclergy>

2) From the Marriage (Same Sex Couples) Act 2013, section 4:

“(1) A marriage of a same sex couple in an appropriately registered building according to such form and

ceremony as the persons to be married see fit to adopt may be solemnized on the authority of two

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certificates of a superintendent registrar.

(2) For the purposes of this section “appropriately registered building” means a building which has been

registered under section 43A.

(3) An application for registration of a building under section 43A may not be made unless the relevant

governing authority has given written consent to marriages of same sex couples.

(4) For that purpose, in relation to a building—

“relevant governing authority” means the person or persons recognised by the members of the

relevant religious organisation as competent for the purpose of giving consent for the purposes

of this section;

“relevant religious organisation” means the religious organisation for whose religious purposes the

building is used.”

Source: Legislation: UK. The National Archives, 2013. Web. 3 May 2014.

<http://www.legislation.gov.uk/ukpga/2013/30/section/4#text%3Dclergy>

3) From the Juries Act 1974, section 9 and Schedule 1:

“(1) A person summoned under this Act shall be entitled, if he so wishes, to be excused from jury

service if he is among the persons listed in Part III of Schedule 1 to this Act.”

“GROUP C

The clergy, etc.

A man in holy orders.

A regular minister of any religious denomination.

A vowed member of any religious order living in a monastery, convent or other religious

community.”

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Source: Legislation: UK. The National Archives, 1974. Web. 3 May 2014.

<http://www.legislation.gov.uk/ukpga/1974/23/contents>

4) From the Marriage Act 1949, section 26

“(1) Subject to the provisions of this Part of this Act, the following marriages may be solemnized on the

authority of two certificates of a superintendent registrar— [...]

(c) a marriage according to the usages of the Society of Friends (commonly called Quakers);

(d) a marriage between two persons professing the Jewish religion according to the usages of the Jews;

(e) a marriage according to the rites of the Church of England”

Source: Legislation: UK. The National Archives, 1949. Web. 6 May 2014.

<http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/section/26>

5) From the Marriage Act 1949, section 44

“(1) Subject to the provisions of this section, where the notices of marriage and certificates issued by a

superintendent registrar state that a marriage between the persons named therein is intended to be

solemnized in a registered building, the marriage may be solemnized in that building according to such

form and ceremony as those persons may see fit to adopt:

Provided that no marriage shall be solemnized in any registered building without the consent of the

minister or of one of the trustees, owners, deacons or managers thereof, or in the case of a registered

building of the Roman Catholic Church, without the consent of the officiating minister thereof.

(2) Subject to the provisions of this section, a marriage solemnized in a registered building shall be

solemnized with open doors in the presence of two or more witnesses and in the presence of either—

(a) a registrar of the registration district in which the registered building is situated, or

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(b) an authorised person whose name and address have been certified in accordance with the last

foregoing section by the trustees or governing body of that registered building or of some other

registered building in the same registration district.

(3) Where a marriage is solemnized in a registered building each of the persons contracting the marriage

shall, in some part of the ceremony and in the presence of the witnesses and the registrar or authorised

person, make the following declaration:—

‘I do solemnly declare that I know not of any lawful impediment why I,AB, may not be

joined in matrimony to CD’

and each of them shall say to the other:—

“I call upon these persons here present to witness that I, AB, do take thee, CD, to be my

lawful wedded wife [or husband]”:

(3A) As an alternative to the declaration set out in subsection (3) of this section the persons contracting

the marriage may make the requisite declaration either—

(a) by saying “I declare that I know of no legal reason why I [name] may not be joined in marriage to

[name]”; or

(b) by replying “I am” to the question put to them successively “Are you [name] free lawfully to marry

[name]?”;

and as an alternative to the words of contract set out in that subsection the persons to be married may say

to each other “I [name] take you [or thee] [name] to be my wedded wife [or husband]”.

(4) A marriage shall not be solemnized in a registered building without the presence of a registrar until

duplicate marriage register books have been supplied by the Registrar General under Part IV of this Act

to the authorised person or to the trustees or governing body of the building.

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Source: Legislation: UK. The National Archives, 1949. Web. 6 May 2014.

<http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/section/44>

6) From the Human Rights Act 1998, schedule 1, Article 9

“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to

change his religion or belief and freedom, either alone or in community with others and in public or

private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed

by law and are necessary in a democratic society in the interests of public safety, for the protection of

public order, health or morals, or for the protection of the rights and freedoms of others.”

Source: Legislation: UK. The National Archives, 1998. Web. 7 May 2014.

<http://www.legislation.gov.uk/ukpga/1998/42/schedule/1>

7) From the Offences Against the Person Act 1861, section 36

“Whosoever shall, by threats or force, obstruct or prevent or endeavour to obstruct or prevent, any

clergyman or other minister in or from celebrating divine service or otherwise officiating in any church,

chapel, meeting house, or other place of divine worship, or in or from the performance of his duty in the

lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to,

or shall, upon any civil process, or under the pretence of executing any civil process, arrest any

clergyman or other minister who is engaged in, or to the knowledge of the offender is about to engage

in, any of the rites or duties in this section aforesaid, or who to the knowledge of the offender shall be

going to perform the same or returning from the performance thereof, shall be guilty of a misdemeanor,

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and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term

not exceeding two years, . . .”

Source: Legislation: UK. The National Archives, 1861. Web. 7 May 2014.

<http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/36>

8) From the Prison Act 1952, section 7

“(1) Every prison shall have a governor, a chaplain and a medical officer and such other officers as may

be necessary.

[...]

(3) A prison which in the opinion of the Secretary of State is large enough to require it may have a

deputy governor or an assistant chaplain or both.

(4) The chaplain and any assistant chaplain shall be a clergyman of the Church of England…”

Source: Legislation: UK. The National Archives, 1952. Web. 7 May 2014.

<http://www.legislation.gov.uk/ukpga/Geo6and1Eliz2/15-16/52/section/7>

9) From the Prison Act 1952, section 10

“(1) Where in any prison the number of prisoners who belong to a religious denomination other than the

Church of England is such as in the opinion of the Secretary of State to require the appointment of a

minister of that denomination, the Secretary of State may appoint such a minister to that prison.

(2) The Secretary of State may pay a minister appointed under the preceding subsection such

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remuneration as he thinks reasonable.

(3) The Secretary of State may allow a minister of any denomination other than the Church of England

to visit prisoners of his denomination in a prison to which no minister of that denomination has been

appointed under this section.

(4) No prisoner shall be visited against his will by such a minister as is mentioned in the last preceding

subsection; but every prisoner not belonging to the Church of England shall be allowed, in accordance

with the arrangements in force in the prison in which he is confined, to attend chapel or to be visited by

the chaplain.

(5) The governor of a prison shall on the reception of each prisoner record the religious denomination to

which the prisoner declares himself to belong, and shall give to any minister who under this section is

appointed to the prison or permitted to visit prisoners therein a list of the prisoners who have declared

themselves to belong to his denomination; and the minister shall not be permitted to visit any other

prisoners.”

Source: Legislation: UK. The National Archives, 1952. Web. 7 May 2014.

<http://www.legislation.gov.uk/ukpga/Geo6and1Eliz2/15-16/52/section/10>

Question 5

How do laws of your nation, state, or local area respond to Paganism and Neo-Pagan

clergy? Are there laws that prohibit certain functions our clergy usually serve (such

as divination, counseling, or conducting marriages or funerals)? Does your country

implicitly or explicitly state that Neo-Pagans cannot have clergy, or that they cannot

perform certain functions or receive similar rights as those from other religions?

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The laws in England insofar as they address religion are heavily influenced by the historical

position of the (Anglican) Church of England as the established religion. This can be seen, for instance,

in the requirement to notify Church of England clergy of burials taking place in their parishes according

to rites other than those of the Church of England and in the restriction of the “prison chaplain” title to

Church of England clergy, although other clergy can be appointed as “ministers” (see question 4 above.)

Other religions are treated as something of an afterthought, although outright discrimination is forbidden

as a result of the Human Rights Act (see question 4 above).

NeoPaganism is not specifically mentioned in English laws, but there is no particular obstacle to

NeoPagans having clergy, and indeed Pagan clergy have received a degree of official recognition in the

prison system, as outlined in optional question 2 below.

In general, there is no prohibition on our clergy offering their usual services; divination,

counseling and conducting funerals are all permitted, provided the clergy comply with the general

consumer protection laws and other relevant laws (see question 8 below). There is a degree of inequality

in the procedures that apply, e.g. as to the notification requirement for burials, but typically this is not a

serious obstacle to providing the service. The exception is marriage, as only Quakers, Jewish clergy and

Church of England clergy can automatically carry out legally binding marriages in England. Other

religions and denominations must first register one of their buildings for marriage ceremonies and then

secure agreement from a registrar to attend their marriage ceremonies in order to register them. After

one year, it is then possible to register one of the group’s members (usually clergy) as an authorised

person to register marriages. Once a building is registered, it can be used for same-sex as well as

different-sex marriages, provided the governing body of the religious organisation agrees (see question 4

above and “Frequently Asked Questions”)

However, the requirements to register a place of worship for marriages are onerous; in

particular, at least twenty households must worship in the building regularly in addition to the

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proprietor(s), and the “householder” of each of those households must sign the application form

(General Register Office). As a result, to the best of my knowledge no Pagan group in England has yet

registered.

Question 6

Looking at those laws listed in questions 1 - 4 and how they affect you, are there any

specific laws that seem out of place, unfair, or unjust? What is the avenue for change

to these laws, and do you see change to these particular laws as necessary?

I think it is unfair that the Church of England is privileged in law in a number of ways.

Generally, this takes the form of an assumption that the Church of England is the default even where

functions can be carried out by other clergy. This is seen, for instance, in the requirement for burials

under other rites to be notified to Church of England clergy and in the fact that the titles of prison

chaplain and assistant prison chaplain are restricted to Church of England clergy (see question 4 above.).

While these are not great disadvantages for other clergy, they do seem out of place in a modern

democracy in which most people do not worship in the Church of England (“Parish Attendance”).

I think the greatest unfairness is caused by the different regimes that apply to different religions

as regards legally binding weddings (see question 5 above). Because in practice these rules make it

prohibitively difficult for Pagans to carry out legal weddings, there is a real impact on Pagan couples,

who are obliged to have a separate civil ceremony (and to pay a corresponding fee) if they wish their

marriage to be legally recognised. This creates an additional financial and logistical burden that does not

apply to couples in the Church of England, Quaker or Jewish religions.

Although I am not sure it is absolutely necessary, I would certainly like to see these laws

redrawn so that all religions are treated equally. Equalizing the marriage laws would be my highest

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priority, because that is where Pagans are at the greatest disadvantage, and the additional burden falls on

the laity seeking to get married rather than on the clergy.

All of these laws would require an Act of Parliament to change. Realistically, this means

lobbying a relevant Government minister, most likely the Home Secretary or the Minister for Equalities,

to sponsor a Bill making the required changes and to ask the whips of the Government parties to instruct

their Members of Parliament to vote for the Bill in all three of the required votes (known as Readings).

Once the Bill has been approved by the House of Commons (our lower chamber of Parliament), it would

also have to be voted on three times by the House of Lords (our upper chamber). Once a Bill has been

approved by both Houses, it is signed by the Queen (known as Royal Assent) and is then known as an

Act, which comes into force on a date specified either in the Act or by the relevant Minister.

Question 7

How do you see these laws affecting how you serve your Grove, ADF, or the

community as a whole?

Unless I am ever in the fortunate position of leading a Grove that owns its own building and has

twenty households represented amongst its regular worshippers, it seems unlikely that I will ever be in a

position to conduct legal weddings in light of the considerations set out in question 5, but I would expect

to conduct handfastings from time to time and to advise the participants on how to arrange a civil

marriage either before or after the ceremony, should they wish to do so. If I did find myself in a position

to register a building for marriages, I would of course want to ask the Mother Grove for the required

written authorization to conduct same-sex marriages (see questions 4 and 5), as equality is important to

me both as an LGBT activist myself and in accordance with ADF policy.

I would expect to carry out the full range of other services normally offered by our clergy,

including divination and counseling. I would of course need to abide by the consumer protection laws in

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doing so, but these seem to me to represent good practice in any event and so do not really add any

additional constraints; it would certainly never be my intention to deceive people or exploit any

vulnerable situation in which they find themselves, but rather to help them to the best of my abilities. In

carrying out burials, I would need to follow the required formalities, but my understanding is that in

practice this is usually taken care of by the undertakers, so I would seek to get to know our main local

undertaking firms and liaise with them on this.

I would not expect to make use of the clergy exemption from jury duty (see question 4), as I can

see no intrinsic reason why clergy should not serve their communities in this way. It would seem

particularly inappropriate for a Druid to take advantage of this exemption, given that ancient Druids are

known to have had a role in lawgiving and resolving disputes, and this is reflected in Article 1.8 of the

ADF Constitution.

I would hope also not to have to make active use of the protection from discrimination offered

by the Human Rights Act or the protection from obstruction in carrying out worship that clergy enjoy

under the Offences Against the Person Act (see question 4), but it is useful to be aware of these laws in

case the need does arise.

I would potentially be interested in prison ministry as permitted by the Prison Act (see question

4), as I have taught law in prisons before as part of a lectureship with the Open University and found it

very rewarding. More details of the procedure for this are set out in optional question 2 below.

Question 8

What is the difference between pastoral counseling and other kinds of counseling,

and does the law differentiate between these types? What sort of license do you

require in your state in order to perform counseling of any type? Does divination fall

into this sort of counseling?

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Pastoral counseling takes place within a religious context in which the counselor is theologically

trained, is recognized by and accountable to a religious community, and uses insights from that religious

tradition to help the client reflect on their situation. Other kinds of counseling typically take place in a

secular context (Patrick).

Counseling is not currently regulated by law in the United Kingdom (“Psychotherapy”), and

thus the law makes no distinction between pastoral and other types of counseling, nor is any license

required. There is no specific regulation of divination, but anyone providing divination as a commercial

practice is subject to the Consumer Protection from Unfair Trading Regulations 2008, available at

<http://www.legislation.gov.uk/uksi/2008/1277/contents/made>, which amongst other things prohibit

the provision of misleading information (section 5.2), the failure to adhere to a code of conduct that the

trader has committed to adhere to (section 5.3), and the exploitation of a client’s misfortune (section

7.2). Failure to comply with these regulations may constitute a criminal offense (sections 8 to 12).

Question 9

Describe the mandatory reporting laws in your area and how they affect you as a

clergyperson. Explain the process you would go through to file a report if it were

necessary.

There is no mandatory reporting law in England. However, the Government has issued guidance

recommending that all places of worship and faith-based organisations should make appropriate

arrangements for the safeguarding of children (p.57). It is good practice also to make arrangements for

safeguarding vulnerable adults. This is usually done by establishing a written policy, which will

typically be required in order to gain charitable status and/or liability insurance. The Churches’ Child

Protection Advisory Service (CCPAS, http://www.ccpas.co.uk/index.html) provides model policies and

guidance. As an ADF clergyperson, I would therefore aim to ensure that any Grove I am involved with

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has such a policy.

The process I would follow to report a suspicion of abuse in England is to contact the Social

Care Department at the local authority for the area where the child or vulnerable adult resides. Parents or

carers should not normally be informed that this is being done. Usually the first contact should be by

telephone, followed up within 48 hours in writing. Some local authorities have their own form for this,

others will accept a letter. The form or letter should include a request for written confirmation that action

will be taken. Social Care Departments should provide this confirmation within 24 hours; if they do not

do so, I would contact the Department to follow up. If the circumstances indicated an immediate need

for medical attention, I would also call a doctor, and in the case of an immediate threat to the safety of a

child or vulnerable adult, I would also consider informing the police in addition to the Social Care

Department (“Help”).

Optional Question 1

What are the rules regarding outside worship for any local military base, and what

happens if a soldier on that base wants access to a priest who is not in the military or

not a military chaplain? If there are no local military bases, what are the general

rules?

The only military facility local to me is a Territorial Army (i.e. reservist) training building.

Soldiers typically attend once a week on a weekday evening for drills and physical training. As such, the

issue of worship or access to priests would not be expected to arise, since soldiers are free to attend the

place of worship of their choice at any other time.

In general, the British Army is subject to the same anti-discrimination legislation as any other

employer. Its general policy is to provide soldiers with the opportunity to practise their religion,

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consistent with operational effectiveness, health and safety and organizational needs. Soldiers are not

required to attend worship, but equally, reasonable requests to do so are to be considered objectively and

allowed wherever possible. Soldiers who wish to pray or otherwise worship on their base are encouraged

to discuss their requirements with their commanding officer or other line manager, and such requests are

to be accommodated where possible; normally such prayer or worship should take place during breaks

or off-duty periods, but commanding officers and line managers have the authority to make exceptions

after discussion with the soldier (“Guide”).

Time off for outside worship on religious festivals or other special days can also be requested via

the commanding officer or line manager, but this comes from the soldier’s annual leave entitlement

unless it happens to coincide with a public holiday or off-duty time. The title of Army chaplain is

reserved exclusively for Christian denominations, but civilian chaplains and other spiritual advisers can

be appointed from other faiths (currently Buddhist, Jewish, Hindu, Muslim and Sikh, these being

numerically the largest non-Christian religions represented in the British armed forces; only

approximately 60-80 soldiers have identified themselves as Pagan, “Pagans”). All bases maintain a list

of nearby non-Christian places of worship and religious contacts (“Guide”), so it may be worthwhile for

me to contact the local base once I am ordained and ask to be added to this list.

Optional Question 2

What are the regulations and options for prison ministry in your county and state?

As noted under question 4, under the Prison Act 1952, all prisons must have a chaplain from the

Church of England, who may visit any prisoner who wishes to consult him or her, regardless of the

prisoner’s religious affiliation. The Secretary of State may additionally appoint paid ministers of other

religions and/or allow unpaid visits by ministers of other religions, but such ministers may only visit

prisoners who have declared an affiliation to their religion.

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The policy of the Secretary of State is that the makeup of chaplaincy teams, including paid and

unpaid ministers of other religions, should reflect the religious makeup of the prison population. Teams

are expected to meet at least bi-monthly (Crown Copyright, “Faith”, pp.4-5).

All prisoners should receive an introductory visit from a member of the team, who (if not of the

prisoner’s own faith) should inform the prisoner of who the relevant team member is for their faith and

should inform that team member of the prisoner’s arrival. Prisoners are also entitled to receive visits

from their home clergy up to once per month, and members of the prisoner’s faith community should be

allowed and encouraged to attend faith activities in the prison in order to assist with re-integration of

prisoners. All prisoners should be given the opportunity to attend worship or meditation for their faith

for one hour per week, which should be the main religious observance of the week for that faith. This

may be led by a prisoner if no chaplain is available. Groups of prisoners may also meet informally for

worship, study or meditation on the same basis as for other small-group activities. Prisoners should not

be expected to do non-essential work on key feast days for their faith; Pagan prisoners may nominate up

to four of the standard NeoPagan High Days for this purpose. Appropriate seasonal foods should be

provided for Pagan festivals. Suitable places for worship and meditation must be provided, including a

dedicated space for private spiritual counselling. (Crown Copyright, “Faith”, pp.6-13, 75).

Space permitting, Pagan prisoners will normally be allowed to set up a small altar in their cell and

to use incense, which must be purchased from the chaplaincy. One piece of religious jewellery is

allowed, subject to a risk assessment. Skyclad worship is not allowed, but a hoodless ritual robes is

permitted. Pagan prisoners are also permitted to have an incense holder, a flexible twig for use as a

wand, rune stones and a bag or box to keep them in, and a chalice. Tarot cards may be used for personal

use only, not to carry out divination for others, and normally only under the supervision of a chaplain,

although exceptions may be made following a risk assessment. Pagan prisoners whose tradition requires

it should be permitted to shower prior to group worship where possible (Crown Copyright, “Faith”,

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pp.73-76).

The chaplaincy team is entitled to be notified of and expected to provide support to prisoners who

are about to be discharged; wish to marry; become seriously ill; attempt suicide or self-harm; or whose

family members die or become seriously ill. They are also responsible for conducting a funeral rite of

the appropriate religion for deceased prisoners if no other (e.g. family) arrangements are in place

(Crown Copyright, “Faith”, pp.19-22).

The Pagan Federation (UK) has a Prison Ministry Manager who provides advice to the Prison

Service on issues related to pagan prisoners (Crown Copyright, “Faith”, p.74, where their contact details

may also be found.) Pagan chaplaincy team members must be members of and endorsed by the Pagan

Federation, which can be arranged by contacting the Prison Ministry Manager. This route is the only one

available for Pagan clergy seeking opportunities for prison ministry in England. I am a member of the

Pagan Federation, so I could use this route if my vocation leads me in the direction of prison work.

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Works Cited

“ADF Constitution”. Ár nDraíocht Féin: A Druid Fellowship. Ár nDraíocht Féin, n.d. Web. 22 May

2014. <https://www.adf.org/about/org/constitution.html>.

Crown Copyright, “Faith and Pastoral Care for Prisoners”. Justice. Ministry of Justice, 18 Nov. 2013.

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