On 8 December 2021, the Prime Minister confirmed that England would move to “Plan B” following the rapid spread of the Omicron variant (B.1.1.529) in the UK. Early analysis had suggested that cases could be doubling at a rate of as little as 2.5 to 3 days. Plan B would include: mandatory face coverings in most public indoor venues, other than hospitality; an NHS Covid Pass would be required in specific settings;  and people would be advised to work at home, where possible.

On 9 December the Church of England published the 13-page COVID-19 Opening and managing church buildings, v 2.3, (“the Church guidance”), an update on version 2.2 which had been been revised to take into account the additional measures with face coverings which apply to places of worship. This was accompanied by the Press Release Release: Hope at the heart of Christmas: Bishop of London’s message as second pandemic Christmas approaches. This post provides a brief summary of the legislation underpinning this advice.

Legislation

The relevant documents are:

• The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021, SI 2021/1340, the “principal Regulations”.
• The Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021, SI 2021/1400, (the “Face Covering Regulations (Amended)”)
• Explanatory Memorandum to The Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021, SI 2021/1400, (the “Explanatory Memorandum”).

Although the Explanatory Memorandum does not form part of the Regulations, it nevertheless provides a clear summary of the requirements relating to face coverings. With regard to face coverings in places of worship, it explains [emphasis added]:

“[6.11] Regulation 5 of the Principal Regulations provides a non-exhaustive list of what may constitute a “reasonable excuse” for the purposes of regulations 3(1) and 4(1). A reasonable excuse for singing is included. Examples of where removing a face covering to sing would be reasonable includes (but is not limited to) – singing as part of a choir, during a service, rehearsal or performance”.

“[7.9]. People may also remove their face covering when it is reasonably necessary to sing, including, for example, singing as part of a choir, or during a service, or rehearsal or for performance. Nobody who has a reasonable excuse and is therefore not wearing a face covering should be prevented from visiting any setting because of the requirements in these Regulations. Furthermore, people do not need to show proof of this reasonable excuse under the Regulations”.

In more tortuous legalese, the exact wording in the “the “Face Covering Regulations (Amended)”” is:

(5) In regulation 5, after paragraph (i), insert — “(j)it is reasonably necessary for P to sing, and P removes P’s face covering to do so, and for these purposes, the occasions when it is reasonably necessary for P to sing include singing as part of a choir, or during a service or rehearsal, or for performance”.

The important elements of the above are: the non-exhaustive nature of the list in the “Face Covering Regulations (Amended)”, and the condition of “reasonable necessity”.

The Church Guidance

This states, inter alia:

“Who is exempt from wearing a face covering?

You do not need to wear a face covering if you have a legitimate reason not to. This includes:

• There are exemptions on wearing face coverings for those leading a service or giving a reading.
• There is a reasonable excuse exemption which allows people to remove a face covering whilst singing if they wish to do so. However congregations may wish to consider the use of face coverings while singing depending on the local circumstances.
• These exemptions will also cover the bride and groom at a wedding and those officiating at the wedding.
• These exemptions are made to enable communication, particularly with those who rely on lip-reading, facial expressions or clear sound; they do not exempt clergy and other leaders from wearing face coverings in other situations or during other activities.

There are a range of other reasons for not wearing a face covering, including:

•  young children under the age of 11
• not being able to put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability
• if putting on, wearing or removing a face covering will cause you severe distress
• if you are travelling with or providing assistance to someone who relies on lip reading to communicate
• to avoid harm or injury, or the risk of harm or injury, to yourself or others
• to avoid injury, or to escape a risk of harm, and you do not have a face covering with you
•  to eat or drink, but only if you need to
• to take medication
• if a police officer or other official requests you remove your face covering

There are also scenarios when you are permitted to remove a face covering when asked:

• If asked to do so by shop staff for the purpose of age identification
• If speaking with people who rely on lip reading, facial expressions and clear sound. Some may ask you, either verbally or in writing, to remove a covering to help with communication.

Although you don’t need to prove you’re exempt from wearing a face mask there are cards and badges to help show others why you aren’t wearing a mask, which could provide peace of mind. The gov.uk website shows a range of such cards and badges including some that ask people to remove their mask so that you can lip read. Read more at: Face coverings: when to wear one, exemptions, and how to make one – GOV.UK (www.gov.uk). [This government advice was last updated on 1 December 2021].”

Comment

Parliament will debate the measure next week, with a vote expected to take place on Tuesday 14 December. A number of MPs have indicated their opposition to the restrictions on face coverings.