NB The below post was written before Tier 4 was introduced on 20 December 2020. The rules in Tier 4 are different. The below post only concerns the rules (as they were) when Tiers 2 & 3 were introduced on 2 December.
The latest set of Coronavirus Regulations have now been published. The Regulations came into force on 2 December. After months of legislative confusion, the right to protest has been clearly set out. As before, there are specific requirements on organisers to plan for and carry out the necessary precautions to prevent the spread of the Covid19.
The rules in tier 1 are different to those in tiers 2 & 3 (which are broadly the same in terms). This blog will only refer to the rules for tiers 2&3 as they affect the overwhelming majority of people in the UK. While we believe the content of this blog is accurate (as of 12pm on 7 December 2020) the law may well change again. In any event, the question of whether you will comply with the regulations will be highly specific to the facts of each case, and falling foul of the law may result in a fine of up to £10,000. In particular if you are organising a protest you are strongly urged to seek independent legal advice.
Protest is exempt from the ban on gatherings outdoors
In Tier 2 you cannot gather with more than 6 people outdoors (Paragraph 2(1) of Schedule 2), and in Tier 3 it is with more than 2 people (Paragraph 2(1)(b) of Schedule 2). However, you can gather with more people if the activity falls in to one of the exemptions listed in paragraphs 4 or 6 of Schedule 1 of the respective tier.
In addition you cannot organise a ‘relevant gathering’, which is a gathering that would breach the regulations normally, unless you fall in to one of the exemptions (Paragraph 3 Part 1 of the respective schedule).
‘Protest’ is specifically listed as an exemption. Confusingly it is ‘Exemption 14’ in Tier 2 (Paragraph 4(20) Part 1 of Schedule 2 for Tier 2), and ‘Exemption 13’ in Tier 3 (Paragraph 4(18) Part 1 of Schedule 3 for Tier 2),
You are able to organise a protest (Regulation 6), as long as you are ‘a business, a charitable, benevolent or philanthropic institution, a public body or a political body’ (R6(3)(a)) and comply with the requirements of Regulation 7 (R6(3)(b)). The definition of a ‘gathering organiser’ is common sense – ‘the person responsible for organising the gathering’ (R2).
(See our extended blog for the definition of a ‘political body’, though it is broad and will fit most campaigning organisations seeking to change the law or government policy.)
Regulation 7 is onerous and requires that:
7.—(1) The gathering organiser or (as the case may be) the manager in relation to a gathering takes the required precautions for the purposes of these Regulations by meeting both of the following requirements.
(2) The first requirement is that the gathering organiser or manager has carried out a risk assessment that would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999 (whether or not the organiser or manager is subject to those Regulations).
(3) The second requirement is that the gathering organiser or manager has taken all reasonable measures to limit the risk of transmission of coronavirus, taking into account—
(a) the risk assessment carried out under paragraph (2), and
(b) any guidance issued by the government which is relevant to the gathering.
See our extended blog for further thoughts on the implications of the requirement to assess the risks of the protest. The requirement in regulation 7 is not to be taken lightly as you may be fined £10,000 if you are found to be in contravention of the Regulations.
You are able to attend a protest (Paragraph 2(3) Part 1 of the respective tier schedule) as it is an exempt activity (the specific numbered exemption in either Tier 2 or 3 is referred to above). “A person who only participates in a gathering by attending it is not to be taken as being involved in the holding of the gathering.” (Paragraph 2(3) Part 1 of the respective tier schedule)
As a protester, rather than organiser, you should not fear getting into trouble for attending a protest. However, breach of the regulations can lead to arrest or being given a fixed penalty notice. For instance, if the police announce/inform you that the protest is an ‘unlawful gathering’ then they have a power under regulation 9(3) to disperse the gathering, direct you to return home, or remove you from the gathering. You may risk arrest, or a Fixed Penalty Notice (FPN) with a fine of £100 (and escalating up to £6,400 for each additional fine given), if you attend/stay at the scene. (Regulations 10 (arrest), 11 (FPN) & 12 (the fine amount)). NB the police cannot give a FPN to an under 18 year old (R11(1)(b).
The police can also give you a ‘prohibition notice’ if it is ‘necessary’ to prevent you from ‘continuing to contravene the restriction.’ (R 9(2)). This bans you from returning to the area for a period of time.
An organiser of a protest that does not comply with the regulations can be fined £10,000, or risk a criminal conviction if the FPN is contested at the Magistrate’s Court. (R 11(4))
We set out in a document here the details of the regulations and some FAQ, but as said before, if you are organising a protest there are a number of hurdles to overcome before you will be able to say that your event is actually exempt from the regulations. You are therefore strongly urged to seek independent legal advice. You can contact the Civil Liberties department on the above number or via the enquiries form, here.