Our earlier post did not take account of the MHCLG Guidance published on the same day as the (No. 2) Regulations. What follows has been revised in light of that guidance*.

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (“the Regulations”) were laid on 3 July and came into force on 4 July – except in Leicester for which the more restrictive provisions under a separate regulation became applicable to specific post districts and addresses in the city. The Regulations revoke the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (except for Regulation 2) and the subsequent amending Regulations.

Also on 4 July, MHCLG published COVID-19: guidance for the safe use of places of worship during the pandemic (“the Guidance”), which provides advice on how places of worship many now open, for limited permitted activities, in a manner that is safe and in line with social distancing guidelines. Importantly, the Guidance notes that:

“This guidance is of a general nature and should be treated as a guide. In the event of any conflict between any applicable legislation (including the health and safety legislation) and this guidance, the applicable legislation shall prevail.’

The wording of Regulation 5 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 has resulted in a degree of confusion as to whether or not the limit of 30 persons applied to worship other than marriages, funerals and baptisms. Though the earlier Regulations made specific reference to the inclusion of “communal worship”, there is no such reference in the present provisions, hence the uncertainty in its interpretation.

On 6 July, the Church of England issued COVID-19 Advice on the Conduct of Public Worship (“the Advice”) which addresses the issue of the numerical cap on various services, though without direct reference to the relevant legislation.

Numbers set out in the Regulations

Regulation 5(1) places restrictions on gatherings of more than 30 persons, and applies where these take place: in a private dwelling; or on a boat; or at an outdoor public space which satisfied the condition in paragraph 5(2). The latter condition excludes land which is not:

• operated by a business, a charitable, benevolent or philanthropic institution or a public body as a visitor attraction; or

• part of premises used for the operation of a business, charitable, benevolent or philanthropic institution or a public body.

Regulation 5(4) applies to:

• a gathering of more than 30;
• that takes place indoors; and
• which would attract 63(1) Criminal Justice and Public Order Act 1994 if it took place on land in the open air: which means that it applies only to indoor raves (which is what 63(1) CJPA 1994 is about).

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

The Church of England House of Bishops Recovery Group’s document, COVID-19 Churchyards, addresses the question “Can we have worship outside?” and states that this is possible:

“… if the churchyard or land around your church is owned or managed by you (for example by the PCC). Under government guidance, a place of worship refers to a building used for regular religious ceremonies, communal worship or similar gatherings by religious organisations and includes the use of surrounding grounds for which the ‘venue managers’ are also responsible…”

Numbers set out in the Guidance

The following table in the Guidance

“sets out where it is advisable to limit the number of people within a place of worship due to the potential for increased spread of COVID-19:

Activity	Advised gathering limit
Communal worship, including prayers, devotions or meditations led 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 an assessment of risk (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. Attendance should also be within the capacity limits of the premises so that social distancing can 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. Attendance should also be within the capacity limits of the premises so that social distancing can be strictly adhered to. In some cases that may be less than 30 people. See more detail in the COVID-19: guidance for managing a funeral during the coronavirus pandemic.
Other life cycle ceremonies.	Other life cycle ceremonies should have no more than 30 people present, unless the life cycle rite takes place during routine communal worship. Consideration should also be given to the capacity limits of the premises in order that strict social distancing can be adhered to (See section 5 ‘Social distancing’).

It concludes:

“This guidance applies to places of worship when being used for a religious purpose or in preparation for a religious purpose” [emphasis added].

Numbers set out in the Advice

COVID-19 Advice on the Conduct of Public Worship states inter alia:

• An advisory ‘cap’ of 30 has been set for weddings and other ‘stand-alone’ services such as baptism and confirmation if not conducted during ‘routine communal worship’;
• There is no numerical ‘cap’ on other services, but social distancing and Public Health requirements must be met;
• The two-metre ‘rule’ applies for public worship except in situations where closer contact cannot be avoided; extra Public Health precautions must then be taken
• Consideration should be given to keeping numbers below the maximum possible to further minimise risk.

Summary

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

• those responsible have carried out a proper risk assessment – for which, see Annex A of the Guidance; and
• social distancing is observed.

For a service which is not a wedding or a funeral or another freestanding “life cycle ceremony” (defined in the Guidance as “Religious ceremonies to mark rites of passage, which are separate, self-contained ceremonies as opposed to marking a life cycle event or rite in the course of routine communal worship”), the Guidance suggests an advisory ‘cap’ of 30 persons; however, this would not be applicable to a baptism during a Eucharist.

It would also appear that similar conditions apply to services held outdoors in a churchyard.

[With thanks to Neil Addison and David Brock for their helpful comments on the earlier version.]

Frank Cranmer and David Pocklington

Cite this article as: Frank Cranmer and David Pocklington, “The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020: revised post” in Law & Religion UK, 7 July 2020, https://www.lawandreligionuk.com/2020/07/07/the-health-protection-coronavirus-restrictions-no-2-england-regulations-2020-revised-post/

[* Post updated 09:31 on 8 July 2020.]