This report analyses the law governing protests during lockdown from a Rule of Law perspective. It ends by considering how far the right to protest will be protected by the new lockdown regulations, which are due to come into force on 29th March 2021 and will be debated by both Houses of Parliament on 25th March 2021 (The Public Health (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (SI 2021/364) (the "New Regulations")). This report is intended to assist Members of Parliament and Peers who wish to understand how far the New Regulations facilitate the right to protest - a right long recognised as fundamental by the common law and protected by the Human Rights Act 1998, which gives domestic effect to the right to freedom of expression in Article 10 ECHR and the right to freedom of peaceful assembly in Article 11 ECHR.
The Current Law
The current lockdown restrictions in England are governed by The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374). These regulations do not make it sufficiently clear that there is no absolute ban on protests during the current lockdown regime, as they do not explicitly exempt protests from the prohibition on gatherings in Tier 4 areas. In addition, individual police forces have been given an extremely broad discretion to decide when it is necessary and proportionate to stop protests taking place, and there is no public guidance circumscribing that discretion or indicating how it will be exercised. As a consequence, the law currently governing protests during the pandemic is not sufficiently clear or foreseeable, and so fails to meet basic requirements of the Rule of Law. In addition, the breadth of the discretion given to individual police forces may mean that the police are not acting in accordance with Articles 10 and 11 of the ECHR when they enforce the lockdown regulations by restricting people's right to protest. The ECHR requires restrictions on the right to protest to be "prescribed by law", which means that restrictions must be based on laws that are clearly defined and subject to adequate safeguards so as to ensure that the law is not used in an arbitrary or discriminatory way.
The New Law
The New Regulations come into force on 29th March 2021, and will introduce a 3-Step regime to replace the current 4-Tier lockdown system. The New Regulations contain a specific exception which allows protests to take place at all stages of the roadmap for easing lockdown. We welcome this exception and the additional clarity it will provide to the law governing protest. However, there is still a significant Rule of Law problem with the protest exception due to the lack of clear and detailed guidance in two respects, which should be resolved as soon as possible:
First, detailed and public guidance needs to be issued by the College of Policing and the National Police Chiefs' Council, setting out how the police will ensure that the right to protest will be upheld in practice.
Second, people can only lawfully organise or attend a protest under the New Regulations if the protest organiser has carried out a risk assessment that would satisfy regulation 3 of the Management of Health and Safety at Work Regulations 1999. This regulation is aimed at making sure workplaces are safe, and does not sufficiently outline the type of risk assessment that should be carried out for a protest. The Government also does not appear to have produced any relevant guidance. Guidance for protest organisers on how to conduct a risk assessment that satisfies the requirements of the New Regulations should be produced as soon as possible. The Scottish Government has already produced guidance for protest organisers that can be used as a template.