In a guest post, Professor Russell Sandberg looks at the legislation on worship, funerals and weddings under the Second English Lockdown
There has been considerable confusion about the rules that are applying during the second lockdown in England. Guidance was published at the beginning of the week and this was followed by the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 which differed in some respects to the guidance. The guidance was then rewritten to correspond with and to clarify the Regulations.
Given this, and the cumbersome and convoluted nature of the Regulations, the following seeks to describe what the current position is and what questions remain.
On one level, the law is straightforward: private prayer is allowed but not communal worship; funerals of up to 30 people attending and a commemorative event of up to 15 people attending are allowed; and weddings of up to 6 people attending are permitted provided that it is a ‘death-bed’ wedding. However, as we will see, the Regulations express these rules in a rather convoluted manner which is likely to lead to confusion and which prompts some further questions.
Rather than providing one clear set of exceptions, the Regulations provide a number of different lists of exceptions which are different and differently numbered to each other. But although they look separate they then cross-refer to each other and are clearly meant to be read as a whole.
Regulation 5 states that: ‘No person may leave or be outside of the place where they are living without reasonable excuse’. Regulation 6 then provides a non-exhaustive list of reasonable excuses, termed as ‘exceptions’. Regulations 8 and 9 prohibit indoor and outdoor gatherings unless one or the exceptions set out in Regulation 11 applies. Regulation 16 then provides a requirement to close premises with exceptions and further restrictions to this being found in Regulations 17 and 18. Yet, despite the different exception provisions having different exceptions and different numbering, those provisions cross-refer to each other with definitions for some exceptions being found in different exception provisions.
Under Regulation 6 (2)(e), there is an exception to the stay at home rule that states that it is reasonably necessary to leave the home ‘to attend a place of worship’. However, Regulation 18 then states that places of worship are closed except for the reasons given there.
This means that you cannot attend a place of worship except for one of these purposes. These are funerals, commemorative events celebrating the life of the deceased, broadcasting acts of worship, providing essential voluntary services such as food banks to blood donation, childcare, individual prayer that does not form communal worship and any other permitted gathering under Regulations 8 and 9.
Collective worship is not on this list neither are weddings. This means that places of worship are open and people can attend them as part of secular voluntary services but not for worship. It is difficult to see how opening a church for a foodbank is less of a risk than opening it for communal worship. This may be difficult to justify on grounds of Article 9. Permitting private prayer may help here but Article 9 covers individual and communal religious manifestations. There is also a question of how many individual prayers could occur at the same time.
Particular provision is made for Remembrance Sunday and Armistice Day. Regulation 11 states that gatherings outdoors to commentate Remembrance Sunday are permitted as is the gathering in Westminster Abbey to mark Armistice Day. But attendance is limited to those who are there as part of their work; persons providing voluntary services as part of the event; members of the armed forces; veterans and their representatives or carers and spectators who take part in the gathering alone or only with members of their own household or linked household. Again, it is difficult to justify on Article 9 grounds making this exception and not permitting communal worship.
Under Regulation 6 exception 7, ‘it is reasonably necessary’ to leave one’s home to attend a funeral, to attend a commemorative event celebrating the life of a person who has died, or to visit a burial ground or garden of remembrance, to pay respects to a member of the household, a family member or friend.
However, under Regulation 10, funerals are the ‘exception 10’ and it is further stated that the gathering must be for the purpose of a funeral and must consist of no more than 30 people and cannot be at a private dwelling. Exception 11’ is then for commemorative events following death, with the scattering of ashes or a stone setting ceremony given as the example of what this includes. Here the gathering must consist of no more than 15 persons but again cannot take place at a private dwelling.
The revised guidance now states that anyone working is not counted in the 15 or 30 and that social distancing should be maintained between people who do not live together or share a support bubble. The rules in respect of funerals is clear, though it might be noted that it is not a reasonable excuse to leave the house to pay respects to someone who is not a family or a friend!
Under Regulation 6(10)-(11), Exception 8 deals with marriages and civil partnerships and provides that it is reasonably necessary to attend ‘a marriage ceremony, a civil partnership ceremony or an alternative wedding ceremony permitted under regulation 11(11)’.
Regulation 11(11) provides an exception to the prohibition on gatherings for weddings and civil partnerships – and under Regulation 11 (a), it is stated that this applies only to gatherings for one of these five purposes:
‘(i) the solemnisation of a marriage in accordance with the Marriage (Registrar General’s Licence) Act 1970 [which only covers deathbed marriages]
(ii) the solemnisation of a marriage by special licence under the Marriage Act 1949, where at least one of the parties to the marriage is seriously ill and not expected to recover;
(iii) the formation of a civil partnership under the special procedure provided for in Chapter 1 of Part 2 of the Civil Partnership Act 2004(a);
(iv) the conversion of a civil partnership to a marriage under the special procedure provided for in regulation 9 of the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014(b), or
(v) an alternative wedding ceremony, where one of the parties to the marriage is seriously ill and not expected to recover, and for these purposes, “alterative wedding ceremony” has the meaning given in regulation 6(11).’
These provisions all apply to deathbed weddings only. All other weddings are not permitted during the lockdown. Regulation 6(10) states that the exception to attend a wedding only applies to one of these weddings. It would have been much clearer to word this to simply say that deathbed weddings only are permitted and to define that term by reference to the provisions given above rather than giving the impression that it is an excuse to attend a wedding generally.
Regulation 11 goes on to specify that in relation to permitted weddings and civil partnership ceremonies (i.e., deathbed ceremonies): there must be no more than 6 people present, it must take place in one of the places listed (which includes a private dwelling) and the organiser must take the required precautions.
The drafting of the provisions on weddings is particularly cumbersome given that the rule, as expressed in the revised guidance, is actually straightforward: only death-bed weddings and civil partnerships are allowed. There’s no loophole to allow other forms of marriage but the drafting is questionable.
Regulation 6(11) does not make complete sense. It provides that:
‘For the purposes of this exception an “alternative wedding ceremony” is a ceremony based on a person’s faith or belief or lack of belief, to mark the union of two people, other than a ceremony conducted for a purpose mentioned in regulation 11(11)(a)(i) or (ii)’.
The reference to faith and belief here raises the question of whether this applies to ceremonies by independent celebrants.
Moreover, the ceremonies conducted under Regulation 11(11)(a)(i) or (ii) are deathbed weddings. This suggests that other weddings could be ceremonies other than a ceremony conducted for the purpose listed. This means that they are technically alternative wedding ceremonies. The deathbed restriction still applies to them under Regulation 11(11)(v) so the point is probably academic. But it would be clearer to say that such weddings are prohibited.
Given the importance of these Regulations and the need of the public to comply with them, their complex and convoluted nature is regrettable. The Regulations give the impression that marriage is a reasonable excuse generally and the reader has to go to not just to a different provision but to several other Acts of Parliament to reach the conclusion that the only forms of wedding permitted are deathbed ceremonies. The law on worship is perhaps the most contentious, however, stating that places of worship are to be closed expect for certain purposes and including secular voluntary activities in this list but not communal worship. That rule is likely to be susceptible to a challenge under Article 9 given the arbitrary list of reasons why a place of worship can be opened.
The ban on communal worship has proved controversial in Parliament. In oral evidence to the Science and Technology Committee on Tuesday 3 November from Sir Patrick Vallance and Professor Chris Whitty, Q1531 and Q1531, it was revealed that there was ‘no proper data’ to support closures of places of worship. The issue was raised by several MPs in the Commons debate on the Regulations on Wednesday 4 November; in response, Health Secretary Matt Hancock said that ‘Ministers are talking to faith leaders to do everything we can to reach an accommodation as soon as possible’.
Cite this article as: Russell Sandberg, “Worship, Funerals and Weddings under the Second English Lockdown” in Law & Religion UK, 4 November 2020, https://lawandreligionuk.com/2020/11/05/worship-funerals-and-weddings-under-the-second-english-lockdown/.