The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

A revised version of this post is here

The wording of Regulation 5 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 resulted in a degree of confusion on whether the limit of 30 persons applied to worship other than marriages, funerals and baptisms. In this post, we examine this Regulation and the conditions under which the limit of 30 persons does not appear to apply.

Background

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 were laid on 3 July and came into force on 4 July – except in Leicester. They revoke the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (except for Regulation 2) and the subsequent amending Regulations.

Regulation 5(1) applies to:

  • a gathering of more than 30;
  • that takes place in a private dwelling, a boat or an outdoor public space.

Regulation 5(4) applies to:

Analysis

On our reading, Regulation 5 does not appear to apply to gatherings indoors in property operated by a charitable institution (which covers almost all places of worship, of whatever religion or denomination), provided that:

[The “gathering organiser” is defined in Regulation 5(3)(a)(ii) as “the person responsible for organising the gathering who has carried out a risk assessment which would satisfy the requirements of Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (whether or not the gathering organiser is subject to those Regulations)” (our emphasis)]

On that basis, it would appear that it is legal to hold a service with more than 30 people in a large place of worship provided that:

  • those responsible have carried out a proper risk assessment;
  • it is not a wedding or a funeral or another freestanding “life cycle ceremony”; and
  • social distancing and all the other stuff is observed.

If our reading is correct, the principles set out in Table 1 of the Government’s Guidance for the safe use of places of worship from 4 July (in England), which was published prior to the Regulations on 29 May, continue to apply:

Table 1

Activity Advised gathering limit
Communal worship, including led prayers, devotions or meditations by a Minister of Religion or lay person.

Limits for communal worship should be decided on the basis of the capacity of the place of worship following a risk assessment (see Section 5 ‘Restrictions on capacity’).

Social distancing should be strictly adhered to (see Section 5 ‘Social distancing’).

Marriage ceremonies Marriage ceremonies should have no more than 30 people in attendance, and social distancing should be strictly adhered to. See more detail in the Guidance for small marriages and civil partnerships during the coronavirus (COVID-19) pandemic.
Funerals Funerals should have no more than 30 people in attendance, and social distancing should be strictly adhered to. See more detail in the COVID-19: guidance for managing a funeral during the coronavirus pandemic.
Other life cycle ceremonies (definition in Table 2).

Other life cycle ceremonies should have no more than 30 people present unless the life cycle rite takes place during routine communal worship.

Social distancing should be strictly adhered to (see Section 5 ‘Social distancing’).

This guidance applies to places of worship when being used for a religious purpose or in preparation for a religious purpose.”

Comment

The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 made specific reference to the inclusion of “communal worship” within the “Further restrictions and closures during the emergency period” under Regulation 5 of SI 2020/350; however, there is no reference to “communal worship” in the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, hence the uncertainty in its interpretation.

Adam Wagner has produced a useful thread on the new lockdown regulations for the whole of England (except Leicester), in which he notes that “for the first time … in the English lockdown regulations there are safety requirements imposed which will be about social distancing. This is for any business, charity etc. organising an outdoor event for more than 30 people. They can do it, as long as it’s safely”. There is also a helpful summary on the Law and Lawyers blog.

[With thanks to Neil Addison.]

Frank Cranmer and David Pocklington

Cite this article as: Frank Cranmer and David Pocklington, “The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020” in Law & Religion UK, 5 July 2020, https://www.lawandreligionuk.com/2020/07/05/the-health-protection-coronavirus-restrictions-no-2-england-regulations-2020/

13 thoughts on “The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

  1. Reg 5 is a hard read. Adam Wagner commented on Friday that his head hurt. I spent a good deal of time on it yesterday and was surprised at the result.

    But looking at what you say above about church services and the 30 person limit I came to a different conclusion, namely that there is no such limit in these regulations.

    I think you are relying on Reg 5(3) to reach your conclusion. But that para and the risk assessment provisions in (3)(a) only come in for gatherings described in para (1)(b)(ii) and (iii) which are gatherings on vessels not used for public transport and land which satisfies para (2). Para (2) is public outdoor places NOT operated by a business, charity etc.

    I’m happy to be shown to be wrong. This is a crucial regulation, and sadly difficult to follow.

    • We think we’re right – but that’s not to say that we are, and that you’re wrong. (Our heads hurt as well.)

      It’s such a confused piece of drafting that neither David nor I would have any great confidence either in our analysis or in our conclusions.

      • These regulations are one of the worst bit of drafting I’ve come across in many years of legal practice. Its like interpreting sanskrit

        Your analysis Frank is a valiant attempt to reconcile the regulations with the guidance and I’m sure your analysis would be followed by a Court if any case came before it.

        However had the regulations been issued before the guidance then I ,and I suspect you, would have interpreted the regulations to mean an absolute limit of 30 in all religious services

        What I can’t understand is why the Regulations don’t specifically and clearly deal with Religious Services, Funerals and Weddings rather than letting the rules for these be inferred

        • Today’s post from ObiterJ is broadly in line with our view, but that doesn’t make it correct. Perhaps a PQ or Written Question to the Minister might resolve the issue?

          • I’m confident that if any case came to Court the Judge would follow what the guidance said is permitted or not permitted

        • I don’t understand that, either. I also agree that, had the Regulations been issued before the Guidance, most people would have inferred a 30-person limit on everything – that was certainly my initial assumption until I read the Regs slowly and carefully. And I’m still not absolutely, categorically certain that I’m right.

      • Hello Frank. Can you explain please how you get to the conclusion that one can have an indoor church service etc “provided that:
        the gathering organiser has carried out a proper risk assessment which would satisfy the requirements of reg 3” of the HSW Regs 1999? That is a condition in Reg 5(3) which does not apply to indoor places. I quite accept that for other reasons a risk assessment might be highly desirable, but it does not appear to me to be a consequence of the Coronavirus, Restrictions (No.2) Regs 2020.

  2. My understanding is that whilst under HSWR a written risk assessment is required by an employer with 5 or more employees, only an assessment (not necessarily written) is required when there are fewer than 5 employees. Most parishes have fewer than 5 employees but more than 5 unpaid volunteers so do not require an assessment to be written. A record in note form of when and by whom an assessment was made may be sensible. Is my understanding correct?

    • I’m not sure that that is correct. Regulation 5(3)(a)(ii) appears to require “a risk assessment which would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999(1), whether or not the gathering organiser is subject to those Regulations” [emphasis added].

      It all goes to show how difficult the Regs are to interpret.

      • Yes, but the gathering is not a para (1)(b)(ii) or (iii) gathering. Para (3)(a)(ii) only applies to those gatherings according to the opening words of para (3)(a). To be a para (1)(b)(iii) gathering it must be on public OUTDOOR space which is NOT operated by a business, charity etc. So there is no necessity in the Coronavirus Restrictions (No. 2) Regs 2020 for a risk assessment of a church service with over 30 people.

  3. I think I agree with David Brock. None of section 5 seems to apply to land, or buildings, operated by charitable organisations, such as churches.

    Where do such buildings, or land, fall within?

    It seems certain that nothing in section 5 applies to anything done in a church building by no more than 30 people.

    So unless my church organises a rave, we seem now to be unrestricted in what we can do.

    BTW thanks for the blog which I read from time to time.

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