Legal: Do the new coronavirus restrictions make protests illegal?

Update 16/09/20 –
Shortly after the article below was published, the government reduced the maximum size of (most) legal gatherings from 30 to 6. Nonetheless, the guidance it offers remains sound (so long as you remember to replace all references to “more than 30 people” with “more than 6”). That said, anyone seeking information on the continued legality of protest should just read this article instead, as it is written by two rad legal professionals who are much, much smarter than I am – Carl


After a summer spent supporting activists on the ground, Carl Spender is back with a guide to the latest coronavirus regulations. For those who want to skip the (boring) details, Carl sets out his 6 take-away points for protest organisers at the end of the article.

One of the difficulties of writing anything useful about the law at the moment is that it’s changing so damned quickly. Coronavirus regulations have to be reviewed by the government every 28 days and as a result, we are locked into a rapid refresh cycle in which new, rushed and poorly-drafted laws are imposed on the public – without parliamentary scrutiny – every couple of weeks(1).

The latest instance of this back of the fag packet law-making is the Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020. This statutory instrument amends the Health Protection Regulations, popularly, known as the “coronavirus regulations”, creating an offence of organising or facilitating unlawful gatherings for which the fine is £10,000 (2).

This is the basis upon which Piers Corbyn was arrested last weekend, for his role in the conspiracy theorist demonstration in Trafalgar Square (3). Corbyn was not alone in this. Over the August bank holiday weekend, some 11 people were arrested and/or issued with fines for organising or facilitating unlawful gatherings. The crackdown was felt particularly heavily in Leeds, with five people each fined £10,000 for their role in two separate parties in the suburb of Headingley. Cops also broke up an event in the well known party-capital of Burley, Hampshire with two of the DJs having their equipment seized, as well as receiving ten grand fixed penalty notices.

Cause for concern
It would be all to easy to dismiss these incidents on the grounds that such events shouldn’t be taking place during an on-going pandemic. While this may be true, it is important to reflect on which activities are being criminalised (protests and parties), and which are not only allowed but activiely encouraged (commuting, office and factory work, eating in restaurants etc). Risks of Covid transmission are perfectly acceptable, it would seem, so long as it is necessary for the extraction of surplus value and the accumulation of private profit.

What’s more, the latest amendment to the regulations has a direct legislative connection (through it’s use of the CJPOA’s definition of “a rave”) to the British state’s long history of repressing counter-cultural movements and other undesirable forms of sociality. Indeed, it is difficult not to read the deeply racialised (and racist) discourse surrounding recent “unlicensed music events” in London as intimately connected to the wider criminalisation of Black friendship and sociability (that includes, but is not limited to, the gang matrix and joint enterprise).

With respect to protests, its not only Icke acolytes who are being targeted. In the week prior to Corbyn’s anti-lockdown demo, the Met threatened a Black protest organiser, Ken Hinds, with arrest and prosecution because he was not “a business, a charitable, benevolent or philanthropic institution, a public body, or a political body” and therefore, in calling a demonstration, he was “encouraging anyone attending to commit an offence contrary to [Health Protection] regulations 5 and 8”. This interpretation of the law was contested by Hinds and ITN solicitors and the investigation was subsequently dropped. Nonetheless, there are widespread reports that the police are continuing to use such threats against other individuals and groups, including trans activists and nurses protesting for a pay rise.

As Kevin Blowe of Netpol argues:

“You may find it incredibly difficult to summon up much sympathy for an anti-lockdown protest that attracts conspiracists claiming the coronavirus is a hoax or some who show up with a British Union of Fascists flag. 

However, we face another 18 months of the current emergency legislation. Eventually, the police will misuse these powers to threaten the organisers of a protest that you do support. That is why it so important that their use is resisted. They threaten our ability to participate – and organise – in political assemblies.”

In such a context, it is vital that people understand what the amended regulations do and do not say.

Restrictions on gatherings:
Prior to Friday 31st August, it was already unlawful for anyone to participate in a gathering of over 30 people in a private home, a boat, or a public outdoor place [contrary to Reg 5(1)(a) and (b)], unless the gathering fell under certain important exceptions [set out in Reg 5(3(a)]) . Anyone caught participating in such a gathering is at risk of a fine starting at £100 and rising to £3,200 for six offences.

Last week’s ammendment bolstered this regime by creating the additional offence of holding, or being involved in the holding of raves or gatherings of over 30 people in public or private places, punishable by a fine of £10,000 [Reg 9(6)(a)].

This new regulation is very broad and covers many privately held social gatherings including, as barrister Adam Wagner noted, large kids birthday parties:

Importantly, you don’t need to have directly organised or called a unlawful gathering in order to be in breach of Reg 5B; all you have to do is be involved in the holding of it. Activities sufficient to qualify as “involvement” include those that merely faciliate or assist in the gathering’s operation. So in the case of those dastardedly childrens’ birthday parties, you are at risk of fine even if you only help with the set up:

https://twitter.com/AdamWagner1/status/1299042653246545920?s=20

It is important to note, however, that merely merely attending an unlawful gathering is not enough to qualify as being involved in its organisation [Reg 5(2)(c)]. Attendence is still illegal – as it contravenes Regulation 5(1) – but the fines begin at the much lower figure of £100.

Raves:
One of the forms of unlawful gathering singled out for particular attention in the new regulations are raves.

While indoor gatherings of more than 30 people were already unlawful under the Health Protection Regulations, the new Regulation 5A(1) makes it an offence to hold or be involved in the holding of a ‘Section 63 type gathering’ (whether or not it’s held indoors).

The term “section 63 type gathering” refers to the infamous definition of raves set out in Section 63 of the Criminal Justice and Public Order Act 1994, according to which a rave is a gathering at which amplified music, “wholly or predominantly characterised by the emission of a succession of repetitive beats”, is played during the night which, due to its volume or duration, is likely to cause serious distress to local inhabitants.

As the new offence is committed by anyone who holds or is involved in the holding of a section 63 type gathering, it’s not only rave promoters who are at risk of receiving a £10,000 fine; DJs, sound techs and people working the door are all at risk too.

Protests:
There are, however, a number of important exceptions to the general prohibition on both holding – and participating in – gatherings of more than 30 people. Importantly, for our purposes, Regulation 5B(4) stipulates that the prohibition on holding or being involved in the holding of gatherings doesn’t apply if the gathering organiser —

(i)is a business, a charitable, benevolent or philanthropic institution, a public body or a political body,

(ii)has carried out a risk assessment which would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999(1), whether or not they are subject to those Regulations, and

(iii)has taken all reasonable measures to limit the risk of transmission of the coronavirus, taking into account the risk assessment carried out under paragraph (ii);

The reference to a “political body” in 5B(4)(i) is crucial, as it is this provision which allows for the possbiliy of lawful protests involving over 30 people. Indeed, these three provisions can be understood as setting out the necessary conditions such a protest needs to meet in order to qualify as lawful at this moment in time. We’ll examine each in turn.

(I) Political Bodies: As set out in Reg 5(7)(c), the term “political body” refers to either a political party or to a “political campaigning organisation”, defined as any person undertaking activities which promote changes in law or government policy (Reg 2 of the Health and Social Care (Financial Assistance) Regulations 2009). Importantly, such an organisation does not have to be an officially recognised or incorporated group.

As such, the vast majority of protest or campaigning groups would probably meet this requirement and can lawfully call protests involving more than 30 people (as long as they go on to meet conditions 5B(4)(ii) and 5B(4)(iii)). In practice, however, the police are likely to challenge or deny this, and individuals or groups who are contacted or threatened by the cops should contact one of the Netpol recommended solicitors at the first available opportunity.

Anonymously organised protests are a different story, however. If a demonstration of more than 30 people takes place and there are no identifiable political campaigners or organisations behind or responsible for it, there is a good chance that the gathering would fail to meet 5B(4)(i) and would thus be deemed unlawful. As a result, those in attendance would be at risk of dispersal and/or fixed penalty notices, while anyone suspected of being an organiser or facilitator each facing fines of £10,000.

(II)Risk Assessments: The next necessary condition for a lawful political gathering is that the organisers produce a risk assessment compliant with Regulation 3 of the Management of Healthy and Safety at Work Regulations 1999. Without going into too much detail about the ins-and-outs of risk assessment, an application of Reg 3 to protests would require organisers to produce a ‘suitable and sufficient’ assessment of the health risks, not only to participants but also to those affected by the demonstration, such as members of the public who come into contact with it.

However, there is no legal requirement for organisers to show this assessment to the police either before, during or after a demonstration. Even if they did, the police as an organisation – and frontline officers in particular – are not empowered or entitled to assess the adequacy of that risk assessment. Such an assessment would need to be made by a body such as the Health and Safety Executive (HSE) but there is also no legal requirement to speak to any public health organisation before holding a protest.

Indeed, in the case of a static assembly (as opposed to a march), there remains no general legal obligation to negotiate or liase with any government body (including the police) in advance of the protest taking place(4).

(III)All reasonable measures: Reg 5B(4)(iii) is where, in particular, Piers Corbyn and friends come acropper. Although they claim to have undertaken a risk assessment (albeit a dynamic, paperless one), due to their views on the nature (or, non-existence) of Covid-19, it is difficult for them to argue they took all reasonable measures to limit the risk of coronavirus transmission. Encouraging respect for social distancing, requesting people wear masks and/or providing them to participants free-of-charge would have all been good ways to show they were taking the necessary precautions. Sadly, the organisers of last Saturday’s demo did not concern themselves with such niceties but less cranky, more socially responsible organisers would be to wise to do all of these things.

Whether or not participants respect organisers’ efforts is something that, to a large extent, lies beyond their control. In many cases, it is simply not possible for gathering organisers to force attendees to respect social distancing or wear face coverings. All they can do is make requests and, where possible, have a plan as to how they will respond to (widespread) non-compliance.

The question is whether or not the police will see it this way. Given their recent zero-tolerance attitude to protest, one can imagine them using even the slightest laxity in social distancing or mask wearing as a pretext to try and shut a demonstration down. Whether or not such a move would be lawful is an entirely different matter but, as we’ve seen time and time again, the cops are often more interested in maintaining “public order” than they are in respecting the law. Nonetheless, any protest organisers arrested or facing a £10,000 fine on this basis alone would have lines of defence available to them. In the words of Netpol’s Kevin Blowe:

“It may have been that protesters [last Saturday] were refusing to wear masks, but it’s an important principle that police cannot hold organisers to account for the actions of every single individual protester – nobody would ever step forward to take on this role if that were true. In an event, although we have been early advocates for masking up, it’s important not to forget that it isn’t unlawful to refuse to wear a mask outdoors.”

Aren’t the new regulations incompatible with a proper respect for Articles 10 and 11?
While no one can predict with certainty what the high court (or above) would say if they were asked to review the amended Health Protection Regulations, the legal professionals I have spoken to have all been of the view that the courts would be unlikely to find them incompatible with the Human Rights Act. While this may seem surprising, it’s important to remember that Article 10 and 11 of the ECHR are not absolute rights; they are qualified rights whose theoretical and practical extension is balanced against other considerations such as public safety and the protection of health. Given the serious risks posed by the coronavirus pandemic and the fact that the new regulations do still allow for public political demonstrations of over 30 people (so long as they meet the requirements) it is likely that the courts would find their inference with Article 10 and 11 rights proportionate and lawful (or, so say the lawyers).

This does not mean that all applications of this legislation by the police are automatically compatible with proper respect for Articles 10 and 11 (far from it). However, the lawfulness (or not) of a particular use of the new regulations would probably turn on the particular facts of the case (rather than on the status of the law itself). This, once again, underscores the importance of seeking good legal advice if and when this law – or any other – is used against you.

Take Home Messages:

  1. Protests involving more than 30 people are still legal provided that the organisers —
    (a) Are a person or group undertaking activities which promote changes in law or government policy.
    (b) Perform a ‘suitable and sufficient’ assessment of the health risks, not only to participants but also to those affected by the demonstration.
    (c) Take all reasonable measures to limit the risk of transmission of the coronavirus (such as promoting social distancing, the wearing of masks etc).
  2. There is no legal obligation for organisers to share with their risk assessment with the police before, during or after a demonstration.
  3. The police are frequently denying or ignoring point 1, instead claiming that all protests involving more than 30 people are illegal.
  4. This is not what the law says but that doesn’t mean the cops won’t arrest or issue fines to organisers and/or participants.
  5. If you are arrested or issued with a fine at a demonstration, you should seek legal advice from a Netpol recommended solicitor as soon as possible.
  6. If you are involved in organising a protest and the police threaten you with arrest or fines, you should also seek immediate legal advice.
  7. While these regulations are in force, anonymously organised protests will probably be subject to increased police repression, and officers will be working hard to identify those they believe to be the ‘true’ organisers.

Endnotes:
(1) Human rights barrister Adam Wagner estimates that there have been at least 24 national/local coronavirus regulations passed without parlimentary scrutiny; over 1 a week since lockdown began.

(2) Fines here and throughout is a shortcut for Fixed Penalty Notice, FPN. If you pay the FPN then you do not have a criminal conviction or record. If you ignore the FPN it will be increased by 50% and registered as a court imposed fine. Payments can be deducted from your wages or benefits and bailiffs sent to sieze your possesions.If you choose to contest the FPN you may be taken to court and if found guilty fined and have costs awarded against you. The court fine can be different from the amount of the FPN. You cannot be imprisoned for non payment if you can’t afford to pay only if you have the money and refuse (my thanks to ‘Legal’ Andy M. for this)

(3) There is, however, a strong argument to suggest that, irrespective of whether Corbyn committed the offence, his arrest was unlawful as it did not satisfy the general arrest conditions set out in Section 24(5) of PACE.

(4) In the case of marches, Section 11 of the Public Order Act 1986 does require organisers of public processions to provide notice to the police of the event’s location and routes that the procession will follow unless this is not reasonably practicable. Failure to provide such notice will mean organisers are in breach of the Act, but (i) such a failure does not -in and of itself – render the protest/procession unlawful and (ii) the notice required by Section 11 does not involve the submission of a risk assessment.

Carl Spender

Photo Credit: David Holt licensed under CC-BY-2.0