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

6Conclusions and the way forward

79.While there has been confusion in the law governing protest during the pandemic, this has not always been the case. In October and December 2020 there was relatively clear and accessible legislation confirming that protest could go ahead subject to the organisers completing reasonable safeguards. The existence of an explicit exemption allowing protest brought into regulations in October 2020, and covering Tiers 1–3 prior to the third national lockdown, was a significant improvement on the previous regime. However, it is not perfect. The limited definition of a “political campaigning organisation” seems to prevent an individual from being able to protest against a private company or its activities. We assume this is not the intention and recommend that the regulations are changed to allow individuals to protest against private companies

80.Nevertheless, these regulations demonstrate that protest can be safely accommodated within laws designed to protect against the spread of covid-19. The existing law on public order, which permits the police to place conditions on assemblies and processions to ensure they do not seriously disrupt the life of the community, provides a back-up should protests threaten to get out of hand.

81.In respect of periods of lockdown, the legal position has been and remains far more concerning. Protest has not been a permitted exception to prohibitions on leaving the home or gatherings. It is unclear why the highly restrictive approach to protest during lockdown has been necessary.63 Other activities that seem to pose similar public health risks have been treated differently—without this damaging efforts to combat covid-19.

82.For example, in the third national lockdown, an exception has been made for picketing. Plainly workers’ rights are important, and Articles 10 and 11 engaged, but if picketing can be allowed safely why not gatherings for other forms of protest?

83.Furthermore, the exceptions to the prohibition on gathering under lockdown extend to “communal worship”, as long as the required precautions are taken.64 This includes indoor gatherings where the risk of covid-19 transmission is said to be higher.65 The Committee welcomes the respect this exception shows for the human right to freedom of religion under Article 9 ECHR. Article 9 expressly includes the right to manifest one’s religion or belief in community with others in the form of worship. However, the justification for treating gathering for religious purposes differently from gathering together for the purposes of protest is not clear. Kirsty Brimelow QC stated of this: “The regulations now allow unlimited numbers in church services, for example, certainly under tier 4. There is also a lot of illogicality around where the red lines are drawn and elasticity over what people can do.”66

84.Gathering to protest is not and has never been completely illegal. Regulations have never expressly constrained the right to protest and must always be read in a way that is compatible with the rights guaranteed by Article 10 and 11 ECHR. But even if the law does not prohibit all protest, that is no good if the public are unaware of that fact.

85.The regulations in force during the 2021 lockdown, under which protest is not an offence if it constitutes a “reasonable excuse” to gather contrary to the regulations, but police officers apparently still have powers to break up such gatherings, leave too much to the interpretation of individual police officers to adequately protect the right to protest. A degree of police discretion is vital, but leaving too much to their interpretation or discretion runs the risk of police officers being asked to establish the law on protest as well as enforce it. This is unfair on the officers, but more significantly it affects the rights of protesters who are unsure whether their behaviour will be sanctioned or not.

86.The regulations that applied in October and December 2020 confirmed that protest could go ahead subject to the organisers completing reasonable safeguards. However, during periods of national lockdown, the law became confusing and unclear. Numerous communications from public authorities implied or stated that protest was illegal, while in court Government lawyers argued the opposite. Even when properly understood, the lockdown laws leave the right to protest dependent on interpretation of the highly subjective “reasonable excuse”. This is unacceptable and leaves the public unsure of their rights, and at risk of arbitrary or discriminatory decision-making. The Government must make clearer that protest is not, and never has been, completely illegal during the pandemic—even under lockdown.The Government should amend the law to make clear that protest is permitted if conducted in a manner that reduces public health risks to an acceptable level. The model used in Tiers 1 to 3 under The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, whereby protest is permitted where a risk assessment has been conducted and all reasonable measures to limit the risk of transmission have been taken, could also be applied to outdoor protests in Tier 4.

63 The JCHR has not been provided with evidence on the precise risk posed by outdoor protests in respect of the spread of covid-19. However, in evidence to the Science and Technology Committee on 9 March 2021, Sir Patrick Vallance, the Government’s Chief Scientific Adviser, made the following comments: “I reiterate that our view has always been—it is clear in the SAGE papers—that outdoors is much lower risk than indoors, but it is not completely risk free. It is the case that it is difficult to see how things like large beach gatherings and so on can cause a spike. The same was the case in a protest march in New York; they did not really see any spikes after that…” Professor Chris Whitty, Chief Medical Officer for England, confirmed that he agreed.

64 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374), Para 6(24) of Schedule 3A

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

Published: 19 March 2021 Site information    Accessibility statement