A number of high-profile protests have taken place during the covid-19 pandemic. Recent events surrounding the cancellation of the Reclaim These Streets gathering on Clapham Common, together with the Government introducing a Bill containing further police powers to control processions and assemblies, have brought the policing of protests to the fore once again.
The right to peaceful protest is protected by the Human Rights Act 1998 (HRA), and the rights of peaceful assembly and free expression guaranteed under Articles 10 and 11 of the European Convention on Human Rights (ECHR). Inevitably, the freedom to gather, including for the purposes of protest, has come into conflict with measures taken to combat the spread of covid-19. Such measures are themselves necessary to protect public health and ultimately to preserve the right to life, as guaranteed under Article 2 ECHR, and thus may justify interferences with the qualified rights under Articles 10 and 11. However, any such interferences will only be justified where they are prescribed by law that is both accessible and foreseeable, and where they are necessary and proportionate.
Throughout the pandemic the law has used regulations to impose restrictions, to a lesser or greater extent, on gatherings. Frequent changes in the law have made it hard for the public to be sure of the legality of protest, as has the fact that the regulations have generally been silent on protest.
During lockdown periods, restrictions on gathering have been severe and have been coupled with restrictions on leaving the home. While leaving the home has always been permitted where there is ‘reasonable excuse’, the same does not obviously apply to the prohibition on gatherings. This has understandably resulted in some believing protest to be completely prohibited. However, a defence of ‘reasonable excuse’ has been available in respect of the offence of breaching lockdown requirements. Under the HRA this defence must be read compatibly with Articles 10 and 11 and the right to peaceful protest, which means that the regulations have never completely prohibited protests. This position is legally complex and hard for both the police and the public to follow, something that has not been helped by unclear communications from Government.
Further uncertainty arises from the absence of guidance on when protest will constitute a ‘reasonable excuse’ for gathering during lockdown. This leaves too much subjective interpretation and discretion to the police.
The law must be amended to make clear that peaceful protest is not prohibited during lockdown. Under the national three tier system, the regulations covering Tiers 1 to 3 have expressly stated that protest is an exception to the prohibition on gatherings, but only where a risk assessment has been conducted and all reasonable steps taken to minimise the risk of covid-19 being transferred. This model could equally apply to Tier 4.