Lockdown 2: Are protests legal?

I’ll keep this brief, as whatever I say here will no doubt be out of date within a week.

On Wednesday night, parliament approved The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 which legally enforces England’s second coronavirus lockdown.

With respect to protest, the legislation is deeply confused and confusing, in that it seemingly allows people to organise protests (if they satisfy certain requirement) but not to attend them.

On the question of organizing: Regulation 10(6) provides that a “political body” may organize a gathering of over 30 in a “public outdoor place” provided they satisfy the requirements given in Regulation 14, namely: (i) They have carried out a risk assessment that would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999(1) and (ii) that they have taken all reasonable measures to limit the risk of transmission of the virus, taking into account both their own risk assessment and the guidance issued by the government. This  is broadly the same as regulations that were in force between July and September and would – in theory – allow for the organization of protests by groups that were able to meet both those conditions. For more information on what constitutes a “political body” and some of the legal niceties around risk assessments see this article by two of our top legal bods or my somewhat less learned contribution in Freedom earlier this year.

However: Regulation 9 – which governs participation in outdoor gatherings – states that no one may participate in an outdoor public gathering of more than 2 people unless it is covered by an exemption in Regulation 11 (not Regulation 10). However, Regulation 11 does not provide an exemption for protests (this being one of the key differences with the last set of regs). As such, it would appear that, unlike wage labour, participating in a protest is not a legitimate reason for leaving your house and anyone who did so would be at risk of receiving a Fixed Penalty Notice or, if you fail to provide your details to an officer trying to issue you with an FPN, arrest.

Some lawyers have suggested that if you are allowed to organise protests, it follows that you must be allowed to attend them.

This is not what has been communicated by the Home Office to the media or to the police. In contrast to the tensional provisions of the statutory instrument, the message coming from government is that all protests involving more than 2 people are illegal until the first week of December (at the earliest).

Knowing an order when they hear one, the Met have already sprung into action, arresting 190 ne’er do wells in central London last night who had gathered for – I kid you not – a masked anti-lockdown demonstration. While the ‘organisers’ of the demonstration doubtlessly failed to comply with the conditions set out in Regulation 11, the Met’s public communications – as well as reports we received concerning officers’ statements on the ground – clearly suggest that the cops are unwilling to tolerate any form of protest, irrespective of who it’s organised by or what precautions they take.

For this reason, the line we’re taking in the Activist Court Aid Brigade is this: the legal status of organising and participating in protests is currently unclear. However, the government and, more importantly, the police, are clearly of the view that all demonstrations are illegal. Anyone looking to protest over the next four weeks should therefore expect the cops to come down on them hard and fast.

Carl Spender

P.S. I’m not suggesting people should or should not protest over the next four weeks, I am merely proving a rough and ready guide to the current legal landscape.

Photo Credit: Guy Smallman