One more Step along the world I go…(or not)
The commencement of Step 3 in the relaxation of COVID-19 restrictions on 17 May 2021 was triggered by The Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021 SI/2021/585 (“the Amendment Regulations”); these made changes to the “Steps Regulations” and other provisions, infra.
On 14 May, MHCLG issued guidance on the safe use of places of worship, about which we posted here. This and other guidance has proved highly problematic with regard to singing by professional and non-professionals singers alike, although the restrictions for non-professionals are proving particularly onerous§. Not only was the tightening of the provisions in the guidance unexpected – the “relaxed” Step 3 is more onerous than the earlier Step 2 guidance – it was announced late in the day, and exhibited a lack of parity between restrictions placed on musical events and those placed on things such as sports events, pubs, and restaurants.
Guidance – confusion and convergence
The situation was exacerbated, initially at least, by discrepancies and unhelpful “circular references” between the guidance issued by different government departments, the Church of England and the Royal School of Church Music. The period 14-18 May was particularly confusing as the situation moved from one of disparity between different set of guidance, to one in which there was a higher degree of commonality. The RSCM noted that detailed conversations took place between the RSCM and the Church of England which “[put] into context the different elements of the various Government guidance documents”.
Changes to the Performing Arts guidance, made on 18 May, were subsequently incorporated into the revised Church of England guidance. and the RSCM guidance. On 24 May, the MHCLG page COVID-19: guidance for the safe use of places of worship and special religious services and gatherings during the pandemic was updated to remove the inconsistency on the application of the “rule of six” to non-professional singers. However, the limit on 6 non-professional singers for rehearsals and services remains.
To date, no satisfactory explanation has been given of the scientific reasoning behind these changes. However, latest version of the Performing Arts Guidance refers to a SAGE paper on which we posted here in September 2020, implying that this has not been updated or superseded. The SAGE paper states:
“5.6. Analysis has been carried out predominantly for professional singers and musicians. There is no known reason why there should be a substantial difference in aerosol and droplet generation between amateur and professional musicians; however, the vulnerabilities between these groups may vary.”
No further scientific information on either the aerosol droplet generation or the vulnerabilities “professional vs non-professional” issue has been reported. However, the statement was made in advance of the NHS vaccination programme which commenced on 8 December 2020, and at the time of writing over 50 million doses had been administered. Furthermore, on 22 May 2021, the NHS reported that the vaccines are highly effective against B.1.617.2 variant after 2 doses.
This post focusses on the requirements of the legislative provisions for places of worhsip, and the requirement to “take account” of “any [relevant] guidance issued by the government“, i.e. MHCLG, DBEIS and DDCMS; links to this and the guidance produced by the Church of England and the Royal School of Church Music, (RSCM), are here.
The changes introduced by the “Amendment Regulations” to the Health Protection (Coronavirus, Restrictions) (Steps)(England) Regulations 2021, SI 2021/364, (“the Steps Regulations”), moved all of England into Step 3 of the roadmap out of lockdown; they also made changes to other related provisions, as noted in the Explanatory Memorandum. As with most “coronavirus legislation”, these instrument were made under the emergency procedure set out in section 45R Public Health (Control of Disease) Act 1984 (c.22), and not under the Coronavirus Act 2020, (c.7).
The activities of choirs fall within the provisions relating to “gatherings”, for which the important issues are whether such gatherings are permitted, and the range of possible sanctions one both the organizers and attendees, when these are outwith the requirements. The “Steps Regulations” include the requirements for “permitted organised gatherings“, regulation 5, and the “required precautions” which must be taken by the gathering organiser or manager, regulation 6.
Permitted organised gatherings are allowed if they take place at premises organised by a business, charity, benevolent or philanthropic institution or other public body, Regulation 5.2, or in a public outdoor place organized by one of these bodies, and the gathering organiser or manager takes the required precautions in relation to the gathering, Regulation 5.3. These account for most of the venues used by church and other non-professional choirs.
The requirements for preliminary precautions prior for a “gathering” are satisfied when both of the following conditions are met:
- Regulation 6(2): The gathering organiser or manager has carried out a risk assessment that would satisfy the requirements of regulation 3 Management of Health and Safety at Work Regulations 1999 (whether or not the organiser or manager is subject to those Regulations); and
- Regulation 6(3): The gathering organiser or manager has taken all reasonable measures to limit the risk of transmission of coronavirus, taking into account— (a) the risk assessment carried out under paragraph (2), and (b) any guidance issued by the government which is relevant to the gathering.
These particular sub-paragraphs are critical to the interpretation of the guidance vis-à-vis the legislation. They are applicable to all authorized gatherings and the undertaking of both of the above requirements is mandatory. However, 6(3)(b) only requires the gathering organiser or manager to take account of the risk management and any government guidance. The provision does not envisage inconsistencies in “any guidance”; this situation is no longer an issue, and almost identical is currently extant from three government departments.
The restrictions on gatherings in Step 3 are contained in Schedule 3 to the Regulations, viz.
1(1). No person may participate in a gathering in the Step 3 area which—(a) consists of more than six people, and (b) takes place indoors, unless the exceptions set out in paragraph 3 or 4 apply.
1(3). No person may participate in a gathering in the Step 3 area which—(a) consists of more than 30 people, and (b) takes place outdoors, unless any of the exceptions set out in paragraph 3 apply.
Paragraph 3 of Schedule 3 contains general exceptions referred to in paragraphs 1 and 2(5)(c) of the Schedule. Exception 1: permitted organised gatherings provides that: (a) the gathering is a permitted organised gathering, and (b) the person concerned participates in the gathering alone or as a member of a qualifying group (see paragraph 5(2)). Paragraph 5 sets out the criteria for “qualifying groups”.
The enforcement of restrictions and requirements, offences and penalties &c is addressed in Part 5 of the Act. Regulation 11 sets out how an offence is committed and how such an offence is punishable on summary conviction by a fine. Regulation 12 provides that a fixed penalty notice (‘FPN’) may be issued by authorised persons to any person that they reasonably believes has committed an offence under this instrument, and is aged 18 or over. Regulations 13 to 18 set out the FPN amounts for offences.
As noted above, guidance to the regulations has been issued by three government departments*, and until recently, some of this was contradictory. However, detailed conversations took place between the RSCM and the Church of England, which “[put] into context the different elements of the various Government guidance documents”. The recent changes to the Performing Arts guidance on 18 May have now been incorporated into the revised Church of England guidance. and the RSCM guidance. There is now a range of government and other guidance of which Directors of Music must take account of when making decisions on rehearsal and performance – activities at which the attendees could be subject to sanctions, were these deemed by a “relevant person” to be unlawful.
It is unsurprising that confusion surrounds the current Guidance and Advice. The one certainty is that the mandatory requirement for the gathering organiser or manager must undertake a risk assessment and take account of this and “the guidance”. Most choirs will already have undertaken the required risk assessment, both during the previous lockdown and again in the prospect of singing from Step 3. However, the current guidance from three government departments, the CofE and the RSCM leaves only limited room to manoeuvre. Furthermore, decisions to rehearse and perform have legal implications on choir members in addition to the “gathering organiser or manager”.
A number of commentators have suggested that the current problem may have originated from a confusion in the interpretation of the “rule of 6”, as happened when this rule was first introduced in September 2020; at the time we noted that the Diocese of Oxford commented on this aspect.
However, at the time of writing the issue has not been resolved, and on 19 May 2021 in a response to the written question from Michael Fabricant, (Lichfield, Con.), Eddie Hughes, (Walsall North, Con.) said:
“…From 17 May, when Step 3 of the roadmap is taken, indoors in a Place of Worship a group of up to 6 amateur singers can perform, or rehearse for performance. There is no limit on the number of professional singers but they should follow guidance for the performing arts. Outdoors, the congregation may join in with singing in multiple groups of up to 30. Congregation members should continue to follow social distancing rules. A decision on whether to allow larger performances and communal singing in a place of worship will be taken as we approach Step 4 of the roadmap, no earlier than 21 June.”
Nevertheless, Ministers are being lobbied by individuals and a number of organizations; the Association of British Choral Directors is working with Making Music, RSCM, ISM and its partner organisations in Singing Network UK (SNUK) to shape a response and to help everyone involved in singing to play their part in this campaign. The petition Let Choirs Start Singing Again quickly achieved 26,279 signatures, and is now directing supporters to the UK Government and Parliament petition Allow non-professional singing in groups of more than six indoors. On 20 May 2021, Sir Bob Neill, MP for Bromley & Chislehurst and Chair of the Commons Justice Committee, wrote in fairly trenchant terms to the Culture Secretary asking for clarification of the evidence underlying the latest guidance.
- Coronavirus (COVID-19): Organised events guidance for local authorities, DDCMS, (last updated 23 April 2021). [For reference only, as this refers back to the Performing Arts guidance, infra].
- Working safely during coronavirus (COVID-19) Performing Arts, (18 May 2021). §This defines non-professionals as “those participating in the performing arts other than for work purposes, such as in an amateur choir, orchestra or music group”, DBEIS and DDCMS, (18 May 2021).
- COVID-19 Advice on the Conduct of Public Worship, V3.4, and also FAQ Is singing Permitted?(scroll down), Church of England, (19 May 2021).
- Covid-19 resources for churches, Royal School of Church Music, (“RSCM”), (19 May 2021).
- COVID-19: guidance for the safe use of places of worship and special religious services and gatherings during the pandemic, MHCLG, (24 May 2021), which links to:
- COVID-19: guidance for the safe use of places of worship, (“Places of worship”), MHCLG, (24 May 2021); and
- Celebrating religious festivals during coronavirus (COVID-19), (“Religious festivals”), MHCLG, (24 May 2021)
As stated in our General Terms and Conditions, at L&RUK we do not give legal advice, or purport to do so. This post is for information purposes only and is not intended to be as a source of legal advice – nor should it be relied upon as such.
Updated 26 May 2021 at 07:20.