UPDATED 17/09 to reflect PHE guidance.
The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020 essentially make the trailed “rule of six” into law in England. We’ve looked at the Scottish and Welsh versions separately on Wonk corner. This time, fascinatingly, it’s signed by Priti Patel rather than Matt Hancock, perhaps to “signal” that this time “it’s serious”. Sigh.
Earlier in the week when ministers were asked why, if something was so important, it was not going to be implemented until five days later, they argued that it was to give people time to “absorb the detail”. In what may be a new record, the SI emerged at 23:44 on 13th September, sixteen minutes before it came into force.
This matters because DfE said last week that providers are “also responsible” for ensuring that staff and students are aware of the measures in place, and take action to promote the importance of complying with these. This, it said, could include “communication to staff and students” (a text message at midnight on a Sunday?), “signs and posters to reiterate the rules” (that you printed overnight?), or a “behaviour agreement”.
To be fair we got the guidance last week on who’s exempt and how it will work- it’s just the principle of it. And regulations can often contain surprises in terms of the practice of it – especially for a specific sector like ours. Again, we’re obviously looking at how those regs will specifically affect students and universities here, remember the rules in lock lockdown areas may be different, and as ever I may have some of the below wrong, and so would welcome comments below.
The thrust of this is about gatherings. In England there is a gathering when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other. That’s pretty clear.
During the emergency period, nobody is allowed to participate in a gathering which consists of more than six people. That’s also pretty clear. There are then three types of exceptions to that “super simple” rule of six.
The first is that you can go over six if the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other. You can form one of these “linked households” if you combine with someone that lives alone (or is a single adult with children).
The immediate question here is what counts as a “household”. As far as we can see students in an HMO are, legally, in their own “household”, but Public Health England has helpfully and separately published some guidance here that you would assume the police would observe:
Your ‘household’ will consist of your housemates or flatmates that you share your student home with or if you are living in university halls your university will let you know what makes up your household.
If a student on a halls floor or 15 or a student in a 9 bedroom HMO is off to the pub in a group tonight, it’s not yet clear how they would prove this household thing.
Where students attend as individuals or bubbles and don’t mingle
The second type of exception covers gatherings (indoor or outside, as long as they’re not in a “private dwelling”) where students attend as individuals or in those household bubbles. They have to be operated by a business, a charitable, benevolent or philanthropic institution or a public body. In this case the gathering organiser has to 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) and have taken all reasonable measures to limit the risk of transmission of the coronavirus, taking into account any guidance issued by the government which is relevant to the gathering”. Universities will all be doing this already.
At these events regulation uses the word “mingle” insofar as you can’t “mingle” with people not in your bubble.
In the majority of cases, student societies are a legal component part of charitable students’ unions, whose trustees may authorise or directly undertake the risk assessment and mitigation measures implied in the above. In other words – well managed, socially distant and risk assessed face to face student activities run by universities, SUs or their societies where students attend as individuals and don’t “mingle” are legal (a Freshers Fair appears to fit this bill). Note this exception doesn’t require the gathering to be “educational”.
Where students attend and can mingle but lots of care is taken to prevent transmission
The third type of exception (where “mingling” is allowed) includes specific types of activity:
- You can gather if the person concerned is an elite sportsperson (or the coach of an elite sportsperson) and the gathering is necessary for training or competition.
- You can gather for work, for the provision of voluntary or charitable services, or for the purposes of education or training. Again a reminder here that SU societies are part of registered charity SUs that exist with educational objects. There is some suggestion that Michelle Donelan has said this exemption only applies to “teaching”, but we doubt that would hold legally – and how would that then apply to PGR students?!
- You can gather if the gathering is of a “support group” – this is something 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. This helpfully seems to cover a number of types of SU society and lots of university organised stuff too – peer support groups, stuff organised by chaplaincies etc.
In these cases (again) the gathering organiser or manager (as the case may be) has to 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(a) and have taken all reasonable measures to limit the risk of transmission of the coronavirus.
And you can also break the rule of six when the gathering is for the purposes of protest when it has been organised by a business, a charitable, benevolent or philanthropic institution, a public body, or a political body (a students’ union or sone of its societies would count) and where the organiser complies with the risk management stuff above.
Given universities’ wider responsibilities around freedom of speech that protest one becomes interesting!
Living in halls
What’s that you say? Halls of residence? Oh my.
On gatherings the old regulations on thirty people applied to “private dwellings”, the definition of which exempted student accommodation. That looked like a hole. Now it looks like it’s the reverse – gatherings aren’t allowed anywhere unless the exemptions above apply. Gatherings can still happen under that first set of exemptions, though – so halls managers will all be telling students how to avoid getting Covid if they’re in the kitchen.
The fascinating thing about halls takes us back to “households”. Away from the technical definitions, the regulatory dilemmas for those defining households in shared student accommodation are fascinating. If a “household” was 50 people in a halls block, all 50 would self-isolate if they had symptoms (safer in theory but impractical) but all 50 would be able to go to the pub together (that wouldn’t work).
If, instead, a household is a single student room, and in England you can only form a linked household with one other (and as I mentioned above you can’t change your mind), that would be very restrictive but also mean that while six of you can pop to the pub, only two of you would need to self-isolate if you had Covid symptoms.