16 September 2020 by Jennifer
Practical commentary on new English legislation to limit meetups, supposed to reduce covid virus transmission.
As someone who sometimes runs events, like gigs or bi community things or home ed meetups, I thought I’d better get my head round this new bit of law, which is active from 14 September 2020.
Disclaimer: I’m not a lawyer! just a person trying to figure out how we’re supposed to not break the law now. I hope other people will jump off from this attempt and clarify further as we find things out.
Please note, this post is only about England (except for a brief comparison with Wales).
Here’s the new bit, from late night last Sunday night:
The update legislation by itself doesn’t really explain the law – it just tells you which bits of the previous version to delete and which new words to add instead. A lot of it stays the same.
The updates we’re interested in are all in one section of it, Section 5 or Regulation 5, “restrictions on participation in gatherings”.
Here’s the whole thing put together and up to date, i.e. that whole chunk of law as it stands on 14 September:
A “diff” is a document which shows which are the new bits, and how the whole thing differs from the previous version:
(As it happens, that diff version is also easier to read on a phone than the government page, because it wraps the lines properly. Credit for that to @dracos.)
To go with the new law, here’s a couple of new guidance documents from the government:
Those guidance pages are in plainer language than the legal text – but they leave out details that are in the actual law, so it might not be wise to rely on them alone.
In various subsections of the law, a paragraph applies saying that the organiser of a gathering has to do a risk assessment and take into account any relevant guidance from the government. So you’d also want to be aware of other pieces of guidance, depending on what kind of event it is. I’ll draw from a couple of those as we go along.
Before I get into the implications for various types of meetup, I want to say explicitly that my purpose in considering these laws isn’t to find ways to “wiggle round” sensible regulations at the expense of people’s health. I’m not saying these are the same rules I’d design (they’re not), but the general principle of limiting some activities during an epidemic makes sense.
I’m pretty interested in how the new rules do, or don’t, line up with the science of covid transmission: how they do or don’t promote low-risk activities, how they do or don’t deter high-risk ones. Mostly, I’m interested in which low-risk things are still legal.
Having meetup opportunities is good for people’s overall health, and meeting
outdoors in a breeze
… is one of the lowest-risk activities for covid transmission, even if there are dozens and dozens of people there.
(For more on risk factors, see FAQs on Protecting Yourself from Aerosol Transmission, by a group of professors and other scientists. Or there’s my own recent writeup, Practical points about covid which maybe not everyone knows yet.)
So, what does the new law actually say?
Similar to the previous round of covid-related law, there are several different variables which determine whether a meetup is now legal or not, including…
How many people
Where it is
What it’s for
Who’s running it.
This version of the law starts by saying you can basically only gather in groups of no more than 6 people (including children). Then it gets into the exceptions allowing for larger groups.
In some of the situations which the law describes, the larger group is explicitly limited to 30. In other situations, the law itself doesn’t give a size limit – but the relevant guidance may have things like “try to keep participants in bubbles”.
How would the new law affect a typical bi group meetup?
Paragraph (3) of the new Section 5 is a big list, of which kinds of purposes could justify a gathering larger than six.
At first glance, bi meetups would count, because at (3)(e), we have
(e) the gathering is of a support group,
And in the definition of “support group”, a bit further down the page, they even mention issues of sexuality, and namecheck “bisexual”. So far, so good.
Here’s that definition of “support group”, which is part of the new law:
(5A) For the purposes of paragraph (3)(e) “support group” means a group which is organised by a business, a charitable, benevolent or philanthropic institution or a public body to provide mutual aid, therapy or any other form of support to its members or those who attend its meetings, such as (but not limited to) those providing support—
(a) to victims of crime (including domestic abuse);
(b) to those with, or recovering from, addictions (including alcohol, narcotics or other substance addictions) or addictive patterns of behaviour;
(c) to new parents;
(d) to those with, or caring for persons with, any long-term illness or terminal condition or who are vulnerable;
(e) to those facing issues related to their sexuality or identity including those living as lesbian, gay, bisexual or transgender;
(f) to those who have suffered bereavement.
Forget the list of topics for a minute and look at that first line.
Are we a business? Nope.
Are we a public body? Nope.
Does a group like Bitopia count as “a benevolent or philanthropic institution”?
Down at (6)(d)(ii), we get to how they’ve defined that.
(d) a “charitable, benevolent or philanthropic institution” means—
(i) a charity, or
(ii) an institution, other than a charity, established for charitable, benevolent or philanthropic purposes;
Well, all the bi groups round the country were established for “benevolent purposes”. So that part seems OK.
The part which isn’t so clear to me is: does a group like Bitopia count as an “institution”? Or does it just count as, like, we’re people supporting each other?
In a legal context, “institution” doesn’t necessarily only mean, say, “an organisation formally set up by humans”, because words in law sometimes have non-common-sense meanings.
In this law, they don’t define “institution”. But it might be defined in another law somewhere else, that I don’t know about. It might have acquired a legal meaning via judgements in past cases. It might even have conflicting definitions in different bits of legal history – so that lawyers would have to argue about it, and what it means here would be undefined until there was a case under this particular law where a judgement was made. (as discussed in Dorothy Sayers’ novel “Unnatural Death”, where this is a plot point!)
Maybe its meaning will come clearer to me in the next week or two, as lawyers on Twitter discuss the ins and outs.
(Side note: one of those classic “undefined legal meaning” problems does arise with a different line in the new law, (2B)(b)(ii). It says that, at some types of gathering, you’re supposed to stick to your own little group, not “mingle” with other people who’ve come to the same event. Apparently, the word “mingle” has never been used before in UK law, and they didn’t get around to saying what it meant!
Barrister Adam Wagner commented:
It’s illegal to mingle! What does mingle mean?
Is saying hello to someone at a gathering “mingling”? What about holding the door open for them?
If Bitopia doesn’t count as an “institution”, maybe Nottingham Bi Women’s Group would, since once upon a time that had a constitution and a bank account, and I suppose the constitution still technically exists.
This uncertainty means I’m currently not sure whether a more-than-six meetup organised by one of those groups would be legal or not. It seems to hinge on the status of the group.
In other words, it’s possible that, purely because of who’s organising it, our hypothetical meetup would be illegal now, whether indoors or outdoors – unless we limit it to six people.
(The FAQ alludes to this limitation with the phrase “formally organised groups” – but if you didn’t read the whole law, you might not realise this was what that meant.)
However, if BiCon Continuity were to organise a meetup to be supportive of bi people, it seems to me that would be legal, at any size, indoors or out – since Continuity (as it’s nicknamed) is a registered charity. Or bi group runners could join Continuity as members, then run meetings for their local groups as volunteers for the charity. (Not that I’m saying this ought to happen. That level of on-the-ground detail isn’t really what Continuity was set up for, even though it would be well within the charity’s formal aims.)
So on the one hand, here’s a legal entity which apparently would still be allowed to run a more-than-six meetup – and on the other hand, here’s dozens of people across the country who’d normally actually do it, but perhaps wouldn’t be legally allowed now.
(Regardless of legal position, I wouldn’t encourage anyone to run indoor meetings at this stage of the epidemic.)
However, section 3.18 of the FAQ says we can still run meetups that are subdivided into sixes:
Support groups not covered by this exemption can still take place if they do not breach the new gatherings limit of six people. This does not mean that no more than six people can attend. There can be multiple groups of six people attending, provided that the social interaction and shared activity is limited to groups of six. Where this is unlikely to be possible, no more than six people should attend. Anybody who is attending for work purposes is excluded from the gatherings limit.
Educational gatherings bigger than six are allowed, in principle. Again, no distinction between outdoors and indoors.
Here’s the relevant line from paragraph (3):
(c) the gathering is reasonably necessary—
(ii) for the purposes of education or training,
No further definitions for that part are given in the law’s wording.
What does that mean for home ed families?
There’s some discussion of that in this piece of government guidance:
In that document, we get a definition of “Out-of-school settings”, “OOSS”:
What is an out-of-school setting?
OOSS are organisations or individuals that provide tuition, training, instruction or activities to children (up to the age of 18) in England without their parents’ or carers’ supervision, but are not:
providers caring for children that are registered with Ofsted or a childminder agency
OOSS generally provide tuition, training, instruction or activities outside normal school hours (such as evenings, weekends, school holidays), although some OOSS are run part-time during school hours to help meet the needs of those who are typically educated at home. OOSS should not, however, be operating full-time (preventing a child attending a lawfully operating school). They may, for example, include tuition or learning centres, extracurricular clubs, supplementary schools, uniformed youth organisations, religious settings offering instruction in their own faith, and summer clubs.
OOSS can occur in many kinds of venue, from a person’s home to much larger and more formal places such as community and youth centres, sports clubs, and places of worship. Fees may or may not be charged, and some settings may operate on a commercial basis.
That same document has a whole section about non-school education:
Parents (including guardians and foster carers) who have chosen to home educate their own child may wish to have their children attend group activities either in formal OOSS or in the homes of others who have chosen to home educate.
Where a child who is home educated takes part in an OOSS the guidance set out above will apply. This is the case regardless of whether the OOSS is attended solely by children who are home educated or a combination of children attending school and children being home educated.
Where a child who is home educated takes part in a group activity at the home of others who have chosen to home educate, the host should, as far as possible, follow this guidance for OOSS and the guidance on working safely during coronavirus in other people’s homes. This applies only to group activities which have the principal purpose of education and should not be used to justify purely social activities beyond those permitted under the government’s general guidance on social distancing.
At a fundamental level, I don’t agree with how they’re framing this area. In the real world, there isn’t a neat line with “education” on one side and “social stuff” on the other. For children at least (and adults sometimes too), social gatherings are a kind of learning.
If that isn’t obvious when thinking about a randomly-selected child, then think of a teenager who recently came out of school due to bullying, and now has social anxiety. Venturing out to make new friends, and re-build their social confidence, might be some of the most important learning they ever do!
The new law itself doesn’t get into defining what education has to look like. However, I’m aware it’s unlikely the government will agree with me about the nature of it :-/
So, back round to how the law might be applied in practice.
The “purposes of education” bit isn’t hedged around with who can do it or where. It looks to me as though anything clearly “educational” in the traditional sense would be legal, as long as you’re following the relevant bits of guidance.
That same guidance document (with the OOSS & home ed paragraphs) includes advice to divide big groups into smaller groups “wherever possible”:
… we are advising providers to keep children in small groups of no more than 15 children with the same children each time wherever possible (do not mix groups unless absolutely necessary) and at least one staff member, depending on the type of provision or size of the group.
I’m pleased to see that the guidance actively encourages taking activities outdoors:
As the risk of transmission is considerably lower outdoors, providers who normally run sessions indoors should consider whether they are able to do so safely outside.
Depending on where you are, what you’re doing and the ages of the children, that same document also refers you on to other bits of guidance – for instance, the guidance for primary schools, or for sporting activities, or for working in other people’s homes.
I feel the government’s advice here is reasonably flexible, and following the science would give me a more picky set of rules: for instance, if I had to run something with 15 young people indoors at this point, they’d all be wearing masks (except if someone couldn’t), and I’d be looking for the biggest room I could find, with good ventilation. And first, I’d try everything to move the group outdoors. In contrast, the government would let me sit them right next to each other barefaced, in a badly ventilated room for hours – as long as it was for something they recognised as education.
What if it was a home ed meetup which most people wouldn’t perceive as educational? (even if in some profound senses, it really was?)
A lot of mutual support in home-ed-world happens at informal gatherings in parks. While the children are running around or talking together, the parents swop stories and advice.
This kind of community networking can make a huge difference to a family’s home ed journey – perhaps especially for parents new to home ed, who are in the process of finding out how similar families go about their learning, and what’s on locally.
This is, in my opinion, a kind of support group – in itself, a legitimate purpose, as in the bi group example. But unlike with the bi group, the government doesn’t list home edders in paragraph (5A), the examples of why people might need support or mutual aid.
(And it is only examples, in that bit. The wording is “such as (but not limited to)”.)
So government people might not agree. They might insist that it isn’t really a support group, and can count only as a social meetup – which, of course, it also is, as many mutual-support groups are to some extent.
Kirsty Logan of the Rabble Chorus commented:
Trying to work out if a community choir group of under 30 can meet outdoors/socially distanced because we are not strictly educational or for providing physical exercise or mental health benefits and yet we do all 3!
Aside from what’s considered to be the purpose, the home edders run into the same question as the bi group would: is there something the law would recognise as an “institution”, which can be said to be running the meetup?
Often, there’s a long-running community email list or Facebook group, where people say “shall we meet in the park” or “we’re going to the park tomorrow” (as well as many other conversations) – but can those online networks count as institutions?
It seems very possible that the government would argue this is illegal for now, for groups of more than six (and six wouldn’t be much of a meetup – two families together could easily exceed it).
I feel annoyed. Outdoor park meetups like this are low-risk for covid, and have substantial benefits for both mental health and education. There’s no way they ought to be illegal.
(Should home ed kids be prevented from gathering in a nearly-safe group outdoors, while school children’s so-called “bubbles” extend to their entire year group? It’s worth noting that there was no “impact statement” done for this law.)
Plus, this kind of situation is ludicrously tricky to try to police fairly. Even if planning to gather at a playground is illegal now, what if several families independently decide it’s a nice day to go there, and the kids start playing together on the playground equipment? Is that supposed to be illegal?
Barrister Joanna Hardy commented:
All of this reminds me of the old ASBOs the courts dished out to kids back in the day. Hours would be spent arguing whether Billy was “associating” with Sam and “two others” at the burger joint or if – as they asserted – they all coincidentally (and simultaneously) wanted chips.
This kind of badly-thought-through law brings the law into disrepute.
Interestingly, Wales’s similar regulations go a lot further in taking into account the difference between outdoors and indoors. (Here’s the Welsh guidance FAQ. I haven’t looked at their actual law.) Their basic framework is a 6 limit indoors and a 30 limit outdoors. That to me makes more sense than the English framework.
Alongside the part about education, the “exceptions” part of the law includes
(c) the gathering is reasonably necessary—
(iii) for the purposes of childcare provided by a person registered under Part 3 of the Childcare Act 2006, or as part of supervised activities provided for children,
This is discussed further in the FAQ:
2.15 Can I gather in a group of more than 6 for childcare?
There is an exemption to the legal gatherings limit which comes into force on 14 September for the purposes of education, training, formal registered childcare, and supervised activities for children (including before and after school clubs, or other out-of-school setting provision for children. Youth groups and other children’s groups will also be exempt from the gatherings limit. Family and friends can continue to provide informal childcare as long as groups from different households don’t exceed 6 people.
The law itself never uses the term “youth group”, even though that bit of guidance explicitly says that youth groups are “exempt from the gatherings limit”.
On the face of it, it seems possible to me that a meetup for non-school teenagers, organised by an adult volunteer, would come under the categories of supervised activity for children (in the legal sense of “children”, not implying very young), and youth group.
As far as I can see, the new law doesn’t mandate who can run a “supervised activity for children”, or indeed a youth group – unlike its limiting definition of a “formal” support group.
(At section 3.19 of the FAQ guidance, about hobby groups and leisure activities, we also get
All activities for under 18s are exempt.
But from the context, I’m not clear what that means. Exempt from what exactly?)
In my experience of meetups centred on home ed teens, usually some of the teens would’ve been brought by their parents (though some might have got the bus), and some of the parents would stick around, talk with each other, & maybe plan other things. And sometimes there’s a few younger siblings joining in, or climbing trees nearby. It typically isn’t exactly like what most people would picture from the words “youth club”, with all the parents somewhere else, and paid youth workers in charge.
(There’s something very alienating to me about how the government’s framework lacks recognition of my community’s traditions. I think that must be an experience shared by many other groups too.)
But I guess we could create something more like a conventional youth club where most of the parents leave… if that’s the hoop we’d need to jump, to enable teens to have their time together, and if there isn’t some other catch I haven’t spotted yet. If the meetups were outdoors with face coverings, it’d be significantly safer than any indoor club.
The government’s info refers youth club organisers to covid-specific guidance created by the National Youth Agency:
As in some of the other contexts, a key part of the guidance is subdividing to 15s:
Organisers should divide young people into fixed bubbles, with a maximum of 15 young people (plus workers/leaders) per bubble per session.
Bubbles should not join with other bubbles.
Individuals should remain in the bubble they are allocated for that day and ideally over repeat attendance, though this may not be practical in some circumstances.
I’m pleased to see that they too recommend
As the risk of transmission is lower outdoors, activities should take place outdoors as often as possible and when it is safe to do so.
Back round to bi community stuff. Let’s look at the exception for “protest“.
Under paragraph (3)’s list of justifiable purposes, at letter (i), we get
(i) [i as in letter I] “the gathering is for the purposes of protest and—
(i) [i as in number 1] it has been organised by a business, a charitable, benevolent or philanthropic institution, a public body, or a political body, and
(ii) the gathering organiser complies with paragraph (5G),
What if we wanted to have speeches and music in town for International Celebrate Bisexuality Day, like we did a few years ago?
(One of the great things about Nottingham is it has a Speakers’ Corner, just off the old market square in the middle of town.)
I wouldn’t exactly have called that event “a protest” – but it was a public gathering with the intent of causing change, so “protest” is probably the closest category named by the law or guidance. It’s distinct from the kind of meetup that’s primarily for mutual support.
How does that sit against this bit of law?
(5G), referred to in point (ii), is the bit which mandates risk assessments. More on that in the next section, but I’ll say now I wouldn’t expect that bit to be a problem.
In point (i)-as-in-1, we run into the “who’s organising it” factor again. A protest is only legal if it’s been organised by certain types of entities.
Under paragraph (6)(da) of the new legislation, we find out how they’re defining a “political body“:
(da) “a political body” means—
(i) a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000, or
(ii) a political campaigning organisation within the meaning of regulation 2 of the Health and Social Care (Financial Assistance) Regulations 2009;
(yes really “(da)” – it comes after (d) and before (e) – they probably added in this bit after they’d given the other paragraphs their letters)
To understand that part (ii), I looked at the Financial Assistance legislation they’re referring to:
Here’s the bit about campaigning:
“political campaigning organisation” means any person carrying on, or proposing to carry on activities—
(a) to promote, or oppose, changes in any law applicable in the United Kingdom or elsewhere, or any policy of a governmental or public authority (unless such activities are incidental to other activities carried on by that person), or
(b) which could reasonably be regarded as intended to affect public support for a political party, or to influence voters in relation to any election or referendum (unless such activities are incidental to other activities carried on by that person);
By this definition, it seems as though any one person can be a “political campaigning organisation”. You don’t have to be a business or an institution. The definition hinges on what you’re doing at the time. So that would be more flexible than some of the other sections of the new law.
On the other hand, this definition of political campaigning seems to me quite narrow! A lot of grass-roots activism isn’t party politics, or always aimed at one specific law or policy.
That ICBD thing in town a few years ago would be an example: we weren’t making any direct attempt to change the law, or get a particular party elected. I saw it mostly as a way to raise awareness of bisexuality (as a reality & community, not a myth or cliché), and in particular, let people know what support is available, like Bitopia and QTIPOC Notts.
As for the ICBD event that Hannah organised in 2015, that was more about bi people & allies coming together to mark the day. I’d still call it political – but not party-political, and not directly about the law.
(I get the feeling that for convenience under time pressure, the people drafting the new law have re-used a definition of political campaigning which was properly thought through for a different situation, and isn’t necessarily what you’d arrive at if you were starting from scratch in the present context.
But then again, maybe they’re just trying to grant the minimum to be able to say “see! we’re not stopping your freedom of speech!”)
It looks to me as though that an event such as we’ve done in the past for ICBD wouldn’t be legal at the moment – because it wouldn’t be seen as political enough by this narrow definition.
But if we were to design an event whose focus was a demand for a change in some particular law or policy… seems like that would be legal.
The risk assessment paragraph, (5G):
(5G) The gathering organiser or manager (as the case may be) complies with this paragraph if, in relation to the relevant gathering, they—
(a) have 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 or manager is subject to those Regulations, and
(b) have taken all reasonable measures to limit the risk of transmission of the coronavirus, taking into account—
(i) the risk assessment carried out under sub-paragraph (a), and
(ii) any guidance issued by the government which is relevant to the gathering.
To understand that, I looked up
That’s quite long and a bit repetitive, so I won’t copy the whole thing here – but do click through if you might organise something.
The gist of it is that both employers and self-employed people should assess the risks of what they’re doing, and identify how to be within the law on stuff like fire safety or chemicals or workplace layout. And they have to take into account whether people might be inexperienced and need training. Also, if they employ 5 or more people, what they worked out has to be written down.
This is all good practice anyway. For an outdoor meetup in covid times, it could be things like telling people when to wear masks, perhaps having spare masks on hand, not planning an activity which leads to people being all up in each other’s faces.
Even after all that research and consideration, I can’t say for sure that I know where all the boundaries lie. I don’t think that’s a problem with my analysis: it’s a problem with how the law’s been written and presented.
I have had so many messages from top lawyers telling me they have given up and can’t get their head around the constantly changing regulations
And some of the bits that I do understand, I don’t think make sense, in the context of limiting the spread of covid. I’ll quote from a good thread by Tom Hickman:
It is difficult to understand for example why if family A is able to see the grandparents family B cannot do so.
It will be difficult for people to understand why if G spends all day with her friends at school it should be a criminal offence for her to see them after school.
And it is difficult to understand why 6 friends from 6 different households can meet in the pub but lunch between 2 households of 4 is a criminal offence.
If I had one request for simplification, it would be to remove the 6-person limit for outdoor meetups. It could be “any number of people outdoors, as long as they’re either wearing face coverings, or staying 2 metres apart from other households”. Or the limit could at least rise to 30 for outdoors (like Wales).
That’s all for today! Please tell me in comments if you think I got something wrong.