The Government response to covid-19: freedom of assembly and the right to protest Contents

4The law governing protest during the pandemic

25.This Chapter focuses on the legal regime applicable to England as the devolved parliaments and assembly are responsible for their own public health responses to covid-19.

The First Lockdown

26.The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 imposed the first national lockdown, beginning on 26 March 2020. These Regulations prohibited any person leaving their home “without reasonable excuse” and provided a non-exhaustive list of reasonable excuses. This list stated that a “reasonable excuse includes” various reasons such as obtaining basic necessities, taking exercise and seeking medical assistance. The Regulations did not specify engaging in protest as a reasonable excuse for leaving the home. However, given that the list of exceptions was not exhaustive any person who left their home in order to protest would be entitled to argue that it amounted to a “reasonable excuse” and was therefore not a contravention of the Regulations. A police officer had the power to direct a person to go home, to remove them to their home (using reasonable force, if necessary) and to issue an FPN—but only if they were contravening the Regulations by being out without a “reasonable excuse”.20 It would be for the individual police officer and/or the courts to determine whether it was a reasonable excuse or not.

27.At the same time, the first lockdown regulations also imposed restrictions on gatherings: no person was permitted to participate in a gathering in a public place of more than two people. This restriction took a slightly different approach. It did not specify that gatherings were only prohibited where there was no “reasonable excuse”. Instead, it provided a general prohibition on gatherings coupled with an exhaustive list of lawful exceptions. These exceptions did not include protest.

28.However, the regulation dealing with ‘offences and penalties’ provided that contravening the prohibition on gatherings would only amount to a criminal offence if it was done “without reasonable excuse”. Thus it appeared that a person participating in a gathering for the purposes of protest would always be contravening the prohibition in the regulations, but they would not be committing a criminal offence if the police and/or the courts accepted that the protest amounted to a ‘reasonable excuse’ to breach the rules.21

29.This appeared to have some significance in respect of enforcement. Where the police considered that a gathering of three or more was taking place “in contravention of” the regulations they had the power to direct that gathering to disperse and to direct the participants home or remove them there by force.22 Because these powers were triggered by a gathering in contravention of the regulations rather than by a criminal offence, on the face of the regulations the police did not have to consider whether there was any “reasonable excuse” before exercising them. The police action would seemingly be permitted under the regulations even if the person being removed did have a reasonable excuse to gather. Failing to comply with a police direction to go home, or obstructing an attempt to remove you home, would, however, only be an offence if done “without reasonable excuse”.23

30.From 1 June 2020 the restrictions were eased, with the prohibition on leaving the home replaced with a prohibition on staying overnight at any place other than home and the prohibition on outdoor gatherings limited to those involving more than 6 people.24 For the first time, “gathering” was defined—as “when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.”25 There remained no exemption for engaging in public protest. It was under these restrictions that the BLM protests and the protests to protect statues and memorials took place.

Permitting some protest

31.From 4 July 2020 a further easing of restrictions took place, with people permitted to leave their homes and stay overnight elsewhere. Restrictions on outdoor gatherings remained, although up to 30 people were now able to attend gatherings outside as opposed to six. Significantly, for the purposes of protest, there was an exception in relation to outdoor gatherings of more than 30 people taking place in public spaces as long as (a) the gathering had been organised by “a business, a charitable, benevolent or philanthropic institution, a public body, or a political body”; (b) the person organising had carried out a health and safety risk assessment; and (c) the person organising had taken all reasonable measures to limit the risk of transmission of the coronavirus (taking into account both the risk assessment and government guidance).26

32.The key detail for those wishing to protest in numbers over 30 was the definition of “political body” within the regulations, which included “a political campaigning organisation within the meaning of regulation 2 of the Health and Social Care (Financial Assistance) Regulations 2009”.27 Regulation 2 of the Health and Social Care (Financial Assistance) Regulations 2009 defines a “political campaigning organisation” as including:

“any person carrying on, or proposing to carry on activities—

(a) to promote, or oppose, changes in any law applicable in the United Kingdom or elsewhere, or any policy of a governmental or public authority (unless such activities are incidental to other activities carried on by that person) […]”

33.This definition covers a significant number of campaigning organisations and protest movements, although notably not any person campaigning against the activities of private companies or organisations.

34.While there were local variations in the restrictions imposed, on the national level this limited recognition of protest as an exception to the restrictions on public gatherings continued into the Autumn, despite the number of people permitted to gather together socially being reduced from 30 to 6 on 14 September.

Explicit recognition of protest

35.From 14 October 2020 a localised 3-tier system came into effect, which continued the prohibition on gatherings of more than 6 people in all three tiers. However, for the first time, the regulations expressly introduced an exception to this prohibition for a gathering “for the purposes of protest”—applicable in all three tiers. The exception mirrored that which had appeared in earlier regulations, permitting protests “organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body” in respect of which the organiser “takes the required precautions”.28 The required precautions were: carrying out a risk assessment and taking all reasonable measures to limit the risk of transmission of the coronavirus (taking into account both the risk assessment and government guidance).29

36.The 24 October anti-lockdown protest in London was broken up by police. This was despite the explicit exemption allowing protest in the regulations described above. The police reported it was broken up because the protesters had not complied with the risk assessment the organisers had been required to conduct by failing to comply with social distancing and other measures.30 This demonstrates that the exemption for protest did not prevent the police breaking up a protest that risked public health.

The November national lockdown

37.On 5 November 2020 the second national lockdown began, under the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020. As in the first lockdown, these regulations imposed a prohibition on leaving home without ‘reasonable excuse’ and provided a list of exceptions, which did not include protest. Once again, however, this list was not exhaustive, leaving open the possibility that participation in a public protest could amount to a reasonable excuse to leave home without contravening the regulations.

38.The regulations also prohibited participating in any gathering of more than two people in a public outdoor place, without reference to ‘reasonable excuse’ and with no exception for public protest. Again, the police were empowered to direct a gathering to disperse or to direct or remove participants home if they were considered to be breaching this prohibition (not if they were committing an offence). Surprisingly, however, the prohibition on ‘holding or being involved in the holding of’ (i.e. organising) a gathering of more than 30 people did provide for an exception in relation to gatherings “organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body” in respect of which the organiser “takes the required precautions”.31 Thus, the regulations appeared to permit a gathering, including for the purposes of protest, involving more than 30 people to be held, but not to permit anyone to participate in it (or arguably to leave home to attend it). This was presumably an error in the drafting of the legislation, but it contributed to wider problems of obscurity in the law.

39.As with the first national lockdown, an offence would only be committed if a person participated in a gathering, or did not comply with police directions/removal, “without reasonable excuse”.32

40.Under this legal regime, on 28 November 2020, the Metropolitan Police arrested more than 150 demonstrators marching against the lockdown, although not all of these arrests were for breaching coronavirus regulations. At the time, a statement by the Metropolitan Police said: “Protest is not currently a permitted exemption to the prohibition on gatherings under the current coronavirus regulations.”33 What was not made clear was that, while protest was not a specific permitted exemption, it could still have amounted to a “reasonable excuse” for gathering.

Return to permitting protest

41.At the end of the second lockdown the Government introduced the national 3-tier system under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, coming into force on 2 December 2020. This system again imposed restrictions on outdoor gatherings in each tier, essentially prohibiting gatherings of more than 6 people in public spaces, subject to a list of exceptions. As with the system in place prior to the second lockdown, these regulations expressly recognised an exception for a gathering “for the purposes of protest”—applicable in all three tiers.34 As had been the case immediately prior to the second lockdown, protests “organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body” were permitted as long as the organiser had taken the same “required precautions”.35

Tier 4 and the third national lockdown

42.From 20 December 2020 the fourth tier of restrictions was introduced, which again prohibited those in the Tier 4 area leaving the home without reasonable excuse and gathering together in a public place in groups of more than 2.36 The exception for protest that applied in Tiers 1 to 3 was removed from the list of exceptions applicable in Tier 4. However, from 26 December 2020 a new exception was introduced both for leaving the home and for gathering, covering “gathering for the purposes of picketing” as long as the organiser takes the same “required precautions”.37

43.On 5 January 2021 all of England was placed under Tier 4—the third national lockdown. While some restrictions were slightly tightened, in respect of protest under Tier 4 the position remained the same—no exception to the prohibition on leaving the home other than the general ‘reasonable excuse’ and no exemption from the prohibition on gathering for protest (apart from picketing). Again, the police were empowered to direct a gathering to disperse or to direct or remove, with force if necessary, participants to their home if they were considered to be breaching the prohibition on gathering. Once again, however, no offence is committed by contravening the restriction on gatherings or by failing to comply with a police direction unless the individual concerned had “no reasonable excuse”.38 Thus there remains the possibility of a protest providing a reasonable excuse for a gathering and therefore not being an offence. There also remains the possibility of the police being permitted to using force against someone despite their participation in a gathering having a reasonable excuse and therefore not being an offence. This is the situation that continues to apply at the time of writing.

44.The gathering at Clapham Common on 13 March 2021 took place under the third national lockdown. Also under the third national lockdown, protests were organised following the Government’s recommendation of a 1% pay rise for NHS workers. A 65 year-old NHS worker was issued with an FPN and fined £10,000 for organising a gathering attended by 40 people in central Manchester. The police have since committed to review this fine.39

Has protest ever been illegal?

45.In her oral evidence to the Committee, Kirsty Brimelow QC described the laws governing protest during the pandemic as “completely inaccessible and opaque”.40 The frequently changing regulations have created substantial confusion over what should be a clear answer to a simple question: is going on a protest illegal?

46.On a few occasions the answer to that question has been a relatively straightforward ‘no’. Between 14 October and 5 November 2020 and between 2 December 2020 and 5 January 2021, the law expressly permitted gathering for the purposes of protest. The requirement to carry out the required risk assessment and take all reasonable steps to prevent the spread of covid-19 was clear and understandable. Prospective organisers and participants, particularly those from smaller organisations and grassroots movements, might have struggled to be clear on whether they were a “business, a charitable, benevolent or philanthropic institution, a public body” or, in particular, “a political body”. They might also have wondered, as we have done, why a demonstration organised against a private company was not permitted while a protest against a public body was—this distinction having no obvious relationship with the risk of spreading covid-19. Nevertheless, the law did provide a clearly defined basis for lawful protest.

47.At other times during the pandemic, however, the legal status of protest has been far less clear. In particular, during all three periods of national lockdown in England, the law expressly prohibited gathering together without providing any exception that would cover protest (other than picketing, under the third lockdown). Furthermore, during lockdown the law prohibited leaving the home without reasonable excuse, without including protest in the list of examples of reasons that would amount to such an excuse. Indeed, once the express exemption “for the purpose of protest”, was included in the law on 14 October, its later removal during periods of national lockdown would seem a clear signal that protest was no longer permitted. This has understandably had the effect of convincing many people, including a number of those who provided written evidence to us and elements of the national press, that during lockdown it has been against the law and therefore a criminal offence to gather together in a public place to protest.41

48.Yet through each period of national lockdown the law has not prohibited leaving the home if there is a “reasonable excuse” for doing so. Given that the regulations imposing lockdown have not (and could not) remove the underlying right to protest under Articles 10 and 11 ECHR, guaranteed by the HRA, it seems that going on a protest, if conducted in a manner that minimises the risk of spreading covid-19, could have been and could remain a lawful reason to leave the home during lockdown.

49.Furthermore, while throughout the national lockdowns the regulations have been clear that protest does not fall within the lawful exceptions to the prohibition on gatherings, they have been equally clear that breaching that prohibition will only be an offence if it is done without a ‘reasonable excuse’. If protest could potentially be a reasonable excuse in respect of the prohibition on leaving home, then protest could also potentially be a reasonable excuse for gathering together—meaning that participating in that gathering would not be an offence.

50.However, this also means, confusingly, that attending a protest could be in breach of the regulations despite it not being a criminal offence. The precise status of this ‘unlawful but not criminal’ behaviour is not clear, but its consequences for anyone considering gathering for a protest during lockdown could be significant. The lockdown regulations have granted the police the power to disperse gatherings, direct participants to go home and even to remove them forcibly (if necessary) where they consider the prohibition on gatherings has been contravened, not where they consider a criminal offence has been committed. On their face therefore, the regulations allow these powers to be used whether or not a ‘reasonable excuse’ is available, and therefore against individuals who are not breaking the (criminal) law. It is hard to see how this could be consistent with Article 10 and 11 ECHR.

51.The cause of this ambiguity in the regulations is unclear. However, if the intention was for police enforcement powers in respect of gatherings to be unavailable where the participant had a ‘reasonable excuse’, the clauses governing gatherings could simply have been drafted in the same way as the clauses governing leaving the home. It is also notable that the ambiguity has been maintained in all three lockdowns over the past year. The regulations must be corrected to ensure that persons who have a reasonable excuse to gather, and who are therefore not committing an offence, cannot be directed to disperse or leave, or removed from the gathering.

Confirmation that protest is not banned

R (Dolan) v Secretary of State for Health and Social Care

52.The potential for protest to remain lawful despite it not being listed as an exception to prohibitions on gathering was recognised by the Court of Appeal in the case of R (Dolan) v Secretary of State for Health and Social Care.42 This case saw the lawfulness of the regulations covering the first lockdown challenged on various grounds, including their compatibility with Convention rights. The court did not grant permission for judicial review in respect of the claim that the regulations were incompatible with the right to free assembly under Article 11, but it did consider the claim’s merits and found that it was “unarguable”:

103 […] In our view, the regulations cannot be regarded as incompatible with article 11 given the express possibility of an exception where there was a reasonable excuse.

53.Significantly, the Government supported this interpretation of the legislation and reminded the court “that the HRA is primary legislation, whereas the regulations are subordinate legislation.” The court thus found that “[i]f there were any conflict between them, it is the HRA and not the regulations that would have to take priority. It would be possible to resolve any potential conflict by the process of interpretation required by section 3 of the HRA were there an incompatibility with a Convention right.”43

54.This is an important point. Under section 3 HRA, all of the lockdown regulations must be interpreted in a way that is compatible with the Convention, including Articles 10 and 11 ECHR. This is an obligation that applies to all public authorities and not just the courts. Given that the regulations did not expressly prohibit all protest, they must be read in such a way as to permit protest where it would be unnecessary or disproportionate not to. If the regulations had expressly banned all protest without any possibility of ‘reasonable excuse’ the regulations would have run the very clear risk of being found to be incompatible with the Convention and struck down.

55.It is notable that while concluding that the presence of the ‘reasonable excuse’ defence undermined any claim that the regulations breached Article 11, the court did not address in its judgment the implications of the police being given the power to disperse gatherings and to direct or remove people home for violating the prohibition on gatherings—a power which, on the face of the regulations, does not depend on an absence of ‘reasonable excuse’.

Police understanding

56.Significantly, the senior police officers who gave oral evidence to our Committee also appeared to agree that protest was not prohibited under lockdown. In answer to the question: “can we assume that your understanding of the law is that there is no absolute prohibition on the right to protest, and that it still exists, notwithstanding the terms the regulations made under the Public Health Act?”, Chief Constable Harrington said: “Absolutely.”44

Reclaim These Streets

57.It is somewhat concerning then, that around two weeks after that oral evidence session Reclaim These Streets still considered it necessary to bring an emergency application against the Metropolitan Police in the High Court to establish that the law did not impose an absolute ban on protest. We understand that when considering the application brought by Reclaim These Streets prior to the cancelled event on Clapham Common on 13 March 2021, the High Court accepted that the conclusion in Dolan regarding the first national lockdown applied equally to the 2021 lockdown. The regulations prohibiting gatherings must be read subject to the rights guaranteed by Article 10 and 11 ECHR, and therefore a protest may only be prohibited where it is necessary and proportionate to do so. A policy effecting a blanket ban on protest would be unlawful.45

Reasonable excuse

58.Yet even once it is established that protest has never been subject to a blanket prohibition, even under the three national lockdowns, the precise lines between legal and illegal protest remain obscure. The burden of protecting the right to protest and Articles 10 and 11 ECHR falls on the phrase ‘reasonable excuse’ and the way in which it is interpreted. The defence of ‘reasonable excuse’ undoubtedly provides flexibility in the application of the lockdown regulations—a vital safety net for human rights, ensuring that not all infringements of sweeping restrictions are criminalised—but ‘reasonable excuse’ alone is insufficient to adequately protect the right to protest during the pandemic. While it is important to know that protest may be lawful as it may amount to a reasonable excuse for breaching the prohibition on gathering, this does not and cannot provide the accessibility and foreseeability of the law that the ECHR requires. The impact of this uncertainty are considered further below.

Legality of protest—other factors contributing to confusion

Government communications

59.The most obvious reason for the lack of clarity over the legality of protest is outlined above: that the law governing gatherings (i) has frequently changed and (ii) during lockdown has left protest to fall within the general defence of ‘reasonable excuse’. Yet confusion around the right to protest has not been helped by communications coming from Government. For example:

a)On 6 June 2020, when gatherings of more than six were prohibited under the regulations, the Home Secretary tweeted: “Protests must be peaceful and in accordance with social distancing rules.”46 On 7 June 2020 the Prime Minister tweeted similarly: “People have a right to protest peacefully & while observing social distancing but they have no right to attack the police.”47 Shortly afterwards, on 8 June 2020, the Home Secretary wrote in the national media on the subject of the ongoing protests following the death of George Floyd in the USA and stated, in a seeming contradiction of the earlier tweets:

“This government understands the importance of the right to protest. In normal circumstances, a large (and largely peaceful) protest of this kind would not be of concern to the authorities. But these are not normal times. To protect us all, and to stop the spread of coronavirus, any large gatherings of people are unlawful.”48

b)The Home Secretary followed this with a tweet on 13 June 2020, which stated that “[g]athering in large numbers at this exceptional time is illegal.”49 The law had not changed.

c)Before the second national lockdown began in November 2020, numerous news sources reported that protest was to be banned.50 These headlines were inaccurate but perhaps understandable as the exemption permitting protest had been removed from the regulations. The statement from the Home Office quoted in these articles did nothing to clarify whether removing the exception that allowed for protest meant that there was a ban or not:

“People must follow the rules on meeting with others, which apply to all gatherings and therefore protests too. As they have done throughout the pandemic, the police and local authorities will engage, explain and encourage people to follow the rules before moving on to enforce the law.”

60.Inaccurate communications were not limited to central Government. On 27 November, during the second national lockdown, in anticipation of planned protests in London the following day, the Mayor of London tweeted that “[u]nder the current lockdown restrictions, gatherings of more than 2 people who do not share a household or bubble are illegal.”51 No mention was made of Article 11 rights or any exceptions to the prohibition.

61.While the law surrounding protest during the pandemic has been and remains far from clear, this does not justify inaccurate and misleading communications from Government. Indeed, it demands the opposite. Public communications from Government about the law must be accurate.

Further ambiguities in the law

“Gathering”

62.The uncertainty over the right to protest has also been exacerbated by further ambiguity in the terms used in the regulations. For example, until June 2020, the regulations provided no definition of “gathering” despite it being a key term that determined whether behaviour was lawful or unlawful. Since then a definition has been provided:

“[A] gathering takes place when two or more persons are present together in the same place in order—(i) to engage in any form of social interaction with each other, or (ii) to undertake any other activity with each other”52

63.While this definition is a substantial improvement on no definition, it is still not clear at what distance two people becomes a gathering. Especially given the regulations are all ‘Health Protection’ regulations designed to halt the spread of covid-19, it could be interpreted that once people are far enough apart to pose no risk of spreading coronavirus to each other then they cannot be considered as a gathering. This would mean any socially distanced protest would not be caught by the prohibition on gatherings. This does not appear to be the interpretation that has been adopted by the police, given reports that socially distanced protests have been ‘refused permission’ or resulted in police enforcement action.53

64.The phrase “in the same place” does not provide much additional clarity. Two people protesting on opposite sides of a park might be said to be “in the same place”, despite there being hundreds of metres between them. Would this be considered a gathering? The same question could be asked in respect of neighbours on a street all standing outside their front doors to ‘clap for carers’; are they “present together in the same place” to undertake “an activity with each other”? It seems unlikely, but the language of the regulations might leave doubts in the minds of some.

20 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020 / 350), Regulation 8(3)

21 This appears to create a confusing situation in which a person would be acting ‘unlawfully’ (because their participation in the gathering would be prohibited by the Regulations) but would not be committing an offence.

22 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020 / 350), Regulation 8(9)

23 This confusing situation is discussed further below

24 Amendments made by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 (SI 2020/558), Regulation 2, paragraph 7(3)

25 The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, (SI 2020/350), Regulation 7(3) (a)

26 The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684)

27 See The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684), Regulation 5(7)(c)(ii)

28 The term “political body” continued to be defined in the way set out in para 33 above in these and all further coronavirus Regulations to date.

29 The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020, (SI 2020/1105), Schedule 1, para 10; The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020 (SI 2020/1104), Schedule 1, para 9; The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 (SI 2020/1103), Schedule 1, para 6

30Covid-19: Arrests at London anti-lockdown protest”, BBC News, 24 October 2020

31 The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020/1200), Regulation 10(6)

32 The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020/1200), Regulation 20

33Police arrest 155 anti-lockdown protesters in London”, The Guardian, 28 November 2020

34 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374), Schedule 1 para 3 (Tier 1); Schedule 2 para 4 (Tier 2); Schedule 3 para 4 (Tier 3)

35 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374), Regulation 7

36 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374), Schedule 3A

37 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 3) Regulations 2020 (SI 2020/1646). The picketing must be lawful, i.e. carried out in accordance with the Trade Union and Labour Relations (Consolidation) Act 1992.

38 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020
(SI 2020/1374), Regulation 10(1)

40 Oral evidence taken on 24 February, HC (2019–21) 1004, Q29

41 See for example, “Coronavirus: Priti Patel bans demonstrations during England’s lockdown”, The Independent, 3 November 2020

42 [2020] EWCA Civ 1605

43 Section 3 HRA requires all legislation to be read and given effect compatibly with Convention rights, so far as it is possible to do so.

44 Oral evidence taken on 24 February, HC (2019–21) 1004, Q37

45 See the open advice provided to Reclaim These Streets by their lawyers, following the judgment in the High Court

48 Home Office News Team, Home Secretary: op-ed on protests, 8 June 2020

52 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, (SI 2020/1374) Regulation 2, clause 6e.

53 For example, the Reclaim These Streets event on Clapham Common and see also: “Organiser of socially-distant nurses’ pay protest fined £10,000 by police”, The Mirror, 7 March 2021




Published: 19 March 2021 Site information    Accessibility statement