I’ve been trying to figure out the legality (and ethical conundrums) of restarting my life-drawing practice under the revised “3 Tier” system that is due to come into force in England on Wednesday 2nd December. I’m approaching this as objectively as I can, not in a “looking for loopholes” manner. If you’re a UK lawyer I would really like to hear your opinion!
For the sake of clarity, my thoughts below are based on the following premises:
- That any new Act or Statutory Instrument for the proposed new Tier system and restrictions due to be brought in on December 2nd does not contradict or otherwise change the official guidance for the proposed Tier system or other government guidance (as it stands on Thursday 26 November 2020),
- That I am referring to the 3 Tier system being proposed for England, not any similar system for Northern Ireland, Wales, Scotland, or anywhere outside the UK,
- That the arguments below refer to my circumstances, specifically that I am registered with HMRC as being self-employed as an artist (as a secondary income, in addition to my PAYE day job), and therefore I am operating as a business, not pursuing a hobby (which might be classed as a social or recreational activity),
- That, for any life-drawing session, I am paying the life-model (£20 per hour, typically for a 3 hour session, just FYI), and therefore it’s definitely a business transaction and not a social gathering,
- That the studio space where the life-drawing will take place is also part of my home residence,
- That there will be a minimum distance between me and the life-model of 2 metres at any time,
- That neither the life-model nor I have tested positive for Covid-19, and that neither of us have symptoms of Covid-19, are self-isolating, are awaiting Covid-19 test results, or are aware that we have recently been in contact with someone who is either displaying symptoms or has tested positive,
- That both the life-model and I are living under the same Tier level and national legislation,
- That the work taking place involves one individual artist (me) drawing one individual model, with no other person present, not a life-drawing class with multiple artists (or indeed multiple life-models) at any one time,
- That I am neither delusional nor a 13th Century Baron, so Magna Carta does not apply in any way whatsoever.
The Legal Stuff
I am not a lawyer and this does not constitute legal advice. I’m an artist with absolutely no legal training (as shall doubtless become apparent) trying to make sense of the UK government guidance for England for my own practice as a self-employed artist working with self-employed life-models.
The 3 Tier System in England
It’s worth noting that the vast majority of clauses in England’s 3 Tier system apply to social rather than business situations (and as mentioned above, the paid employment of a life-model on a freelance basis by a self-employed artist is definitely a work/business transaction, not a social one). So all the various rules on how many people you can socialise with, support bubbles, the “rule of six”, household mixing, etc do not apply because they are all specifically about social interaction.
Nor is being an artist or a life-model part of the hospitality industry, so those regulations in the 3 Tier system related to pubs, restaurants, and hotels also do not apply (regardless of whether or not I were to offer the life-model a “substantial meal” as part of their 3 hours of modelling!)
So what’s left? Not much really. Stripping about the regulations about social activities, the hospitality industry, sports, places of worship, and anything that doesn’t possibly relate to life-drawing as work (rather than hobby/recreation) — or anything comparable — leaves us with this:
Tier 1 and Tier 2: Businesses and venues can remain open, in a COVID secure manner, other than those which remain closed by law, such as nightclubs.
Tier 3: The above line does not appear in the guidelines, but it does list a number of businesses that must close.
From this I presume that, so long as I am in an area covered by Tier 1 or Tier 2 (and Brighton & Hove was announced today as a Tier 2 area when we leave national lockdown on 2nd December 2020) then I can remain open as a business so long as I do so “in a COVID secure manner.”
If Brighton & Hove was raised to a Tier 3 area then I think that would still apply - the Tier 3 restrictions list a number of other types of business that must close under Tier 3 (indoor attractions, indoor entertainment and tourist venues, hotels, etc), but — unsurprisingly — it does not specifically include specific guidance on an artist’s studio being used for life-drawing, nor is there any comparable type of business noted in the list of businesses that must close. Additionally there is no restriction on the opening of non-essential shops, gyms, hairdressers, etc (so long as they open in a COVID secure manner) under any of the tiers, so there seems to be no legal distinction between “essential” and “non-essential” businesses in the current/proposed legislation.
So my best interpretation is that England’s 3 Tier system only states (for the purposes of life-drawing based on the premises at the top of this post) that I can remain open and do life-drawing so long as I do so “in a COVID secure manner” regardless of what Tier Brighton & Hove is in or moves to at a future date.
The only other relevant regulation from England’s 3 Tier system is that, if Brighton & Hove were to move up to Tier 3 at some future date, then a life-model living in a neighbouring area that was under Tier 2 should not travel to a Tier 3 area to work as a life-model (but I’ve already accounted for in point 8 of my list of premises at the top of this post).
Working in a COVID secure manner as an artist (or life-model)
The government guidelines on working in a COVID secure manner are listed by the type of industry/workplace. Classifying my studio as an office environment seems to be the closest possible analogy, so let’s go through Guidance for people who work in or run offices, contact centres and similar indoor environments.
The government guidance on completing a COVID-19 risk assessment is fairly short and the linked What to include in your COVID-19 risk assessment (PDF) has sections that apply to workers, customers, contractors, drivers, and visitors. A self-employed life-model is officially a contractor. Going through the list it would seem that the relevant requirements could be covered by:
- Providing water, soap and drying facilities
- Providing information on how to wash hands properly on a poster (either in bathroom or studio)
- Providing hand sanitizer in the studio
- Following government guidance on social distancing (2 metres)
- Thoroughly cleaning all surfaces before and after the life-model’s visit
There is one area that requires some further thought, though:
- Leave non-fire doors open to reduce the amount of contact with doors and also potentially improve workplace ventilation
It’s life-drawing, and the life-model is nude. Why is this important for the legal arguments? Well, for two reasons:
In the case of the first point regarding ventilation I should also add that it’s currently autumn/winter and the average daytime temperature here in Brighton & Hove is 7-10°C. Throwing open all the windows would make it a very chilly workplace, especially for a nude life-model.
From what I can discover there’s no law for minimum or maximum temperatures for work environments, but the government guidance on Workplace Temperatures states:
Employers must stick to health and safety at work law, including:
- keeping the temperature at a comfortable level
- providing clean and fresh air
Employees should talk to their employer if the workplace temperature isn’t comfortable.
I think it’s reasonable to suggest that a 7-10°C breeze blowing in through the window onto a nude life-model would contravene this (non-Covid-related) health and safety at work legislation even if the radiators were blasting out heat, so the windows must remain closed and the studio space should be heated to a comfortable level for the life-model.
In the case of privacy, a nude life-model has an expectation of privacy, so which doors are left open needs to be balanced with expectation of privacy. I don’t see that as a problem - it just needs the application of common sense as to which doors can be left open.
I also want to cover the issue of masks (face coverings as opposed to medical PPE). The government guidelines on face coverings at work basically leave it up to employer and employee unless you’re in a specific industry dealing with the public (which does not apply here). The relevant line (once you exclude all non-relevant enforcements and exclusions) seems to be:
…employers should assess the use of face coverings on a case by case basis depending on the workplace environment, other appropriate mitigations they have put in place, and whether reasonable exemptions apply.
I would encourage a life-model to wear a mask while entering and leaving the premises. I’d also be happy if an individual life-model wanted to wear their mask during the time I was drawing as well - basically it’s up to the life-model.
The Ethical Stuff
Well, that’s the legal perspective (as far as I can tell, and to repeat: I am not a lawyer, so none of the above should be taken as legal advice). But what about the ethical perspective?
If I had been in charge I’d have introduced Universal Basic Income and rent controls (and a whole load of other changes, but this is not a manifesto), and so made sure that everyone had enough money for accommodation and food and other requirements, but that’s not the reality we need to deal with.
I’ve written in my art updates for Rituals & Declarations about the problems that life-models are facing. Some are professional self-employed life-models whose incomes have been completely lost due to lockdown, others often used life-modelling as a secondary income to shiftwork in pubs and restaurants, which has also been adversely affected by lockdown. Quite a few in this latter group that I have spoken to have lost their shiftwork jobs completely - laid off during the first 2020 lockdown.
And while pubs and restaurants can re-open under certain conditions in Tiers 1 and 2, many never survived the financial losses from the first lockdown and have closed forever. The big pub companies have made several thousand people redundant between them since March due to the pandemic and they’re not ruling out further redundancies.
Why mention all this? Because many life-models were in a financially precarious situation in “normal” times, and the pandemic has made things far worse for them. Trying to find a safe and legal way to allow them to earn the money they need to eat and pay rent seems to me to be a good idea.
I’m not a supporter of keeping the economy going at any cost, not least because when the current government talks about supporting the economy they usually mean keeping the income flowing to the already-rich. But balancing the legal aspects, the safety of the artist and life-model (and anyone they might come into contact with following this work), and the human need for accommodation, food, etc would seem to be a difficult but necessary thing to do.