The Right to Protest under Covid – what you can do


Most readers will, I suspect, have read the news that on Sunday Karen Reissmann was issued with a fixed penalty notice after organising a protest in Manchester against government plans to pay nurses a pay “rise” of just 1%.

Less than a year has passed since Boris Johnson was in hospital with Covid. On his release, he thanked the nurses who had watched over him. He credited them with saving his lives. He said, “It’s hard to find words to express my debt.” Well now what know what his words are: a 1% pay rise, and ten thousand pound penalty notice if you protest.

The list of protests which have been subject to arbitrary and unlawful policing is growing all the time. In Belfast, in summer 2020, a loyalist assembly to “protect monuments” was facilitated by the police to help it comply with Covid Regulations. In Derry, meanwhile, Black Lives Matter protesters were harassed, fined, and threatened with prosecution. Even the Police Ombudsman was obliged to characterise this behaviour as “unfair” and “differential treatment”. In Brighton, in February 2021, a protest in favour of the domestic support charity Rise, which had been stripped of a contract to assist local citizens, led to police officers approaching the perceived organiser, and threatening to fine her.

Here what I want to do is explain how protests can take place legally under Covid, and what to do if the police exceed their powers by serving a fixed penalty notice on you, or on a friend or fellow-protester.

Protesting in the present lockdown: You can’t. Well, possibly, you can’t. I’ll explain that possibly in a moment

The main Coronavirus regulations are now here. How lockdown has worked since January is, in effect, the whole country has been put in tier 4 (and the tier 4 rules were tightened). The rules of for tiers 1, 2 and 3 prevent people from gathering outside in groups of 6 or more. But they make an express exception for protests. Eg if you look at the tier 3 restrictions here, under para 4, exception 13, there is a rule allowing some people to protest.

The rules for tier 4 don’t have that exception. Therefore, on the face of them, all political protests have been banned – whoever does them, and under whatever form, for the duration of the lockdown.

Now this ban is almost certain “unlawful”, for the reason that it is an absolute ban. No protests are permitted under any circumstances at all (not even with facemasks, social distancing, etc). The European Convention on Human Rights protect people’s right of freedom of assembly, and while this is a relatively weak protection, it kicks in exactly at the moment when all protest is banned. In any event, the structure of the main regulations is such that they appear to make rights of protest a primary right. (They are structured into the main body of the SI, not its schedules, and are the only right given that primacy). This is only a lawyer’s educated guess, but it’s my best hunch that if someone was to judicially review the SI, or its use, say, by Manchester police, there’s about an 80% chance that any judge would agree – that the regulations should be read as if allowing protests, provided only that those protests were proportionately organised; i.e. involving, as Saturday’s did, relatively few people, socially distanced, with masks on, etc.

Some readers will be thinking – surely the law can’t be so uncertain that there is a genuine scope for doubt as to whether a law is unlawful. Actually, that happens from time to time, and one of the moments it happens more than ever is during a national emergency. As any number of legal theorists have pointed out, the whole purpose of a state of emergency is that the law becomes uncertain – these are the ideal conditions for more authoritarian forms of government to take root.

The first and most basic problem with the Covid anti-protest laws is that they were made as secondary legislation, this is in breach of a very long-held principle of UK law that it is the role of parliament and no ministers to make law. No controversial laws should be introduced through secondary legislation, and certainly no criminal offence. The practice has been heavily criticised by a Joint Committee of the House of Commons and House of Lords.

The legislation has also been arbitrarily applied. Two months into the Coronavirus Act, the Crown Prosecution Services carried out a survey of all 44 Magistrates Court prosecutions carried out by that date. It found that in every single instance to that date the Defendant had been wrongly charged.

In early 2021, the CPS again reviewed its use of the new powers to prosecute. Some 127 out of 1020 charges brought under the various coronavirus Regulations were withdrawn or quashed, worse still, every one of 232 charging decisions under the Coronavirus Act were found to have been wrongly brought.

In the Manchester case, it is clear that police did not know what they were doing. The journalists describe officers scrolled down their phone screens, desperately trying to work out what the law actually said.

So what can you do? The bad news about the fixed penalty notices is that there is no appeal mechanism. The good news is that, in contrast to a court order, there is no enforcement mechanism, or no direct one. If you fail to pay, you can’t be subject to bailiffs. The regulations define a fixed penalty notice as an “opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to an authority specified in the notice”.

You are perfectly entitled to say – I have had my “opportunity” and I decline to make use of it. What the police then have to do is pass the case to the CPS who then make a decision whether to prosecute. If you are a nurse involved in a protest against a 1% pay rise then you can be pretty confident that either a) the arguments I’ve set out above would succeed, in the magistrates or on appeal, or in any event b) that any fine will be in the hundreds not the tens of thousands of pounds.

Protesting in tier 1-3: You will be able to, but subject to various limits requiring organisers to carry out a risk assessment and socially distance.

All I need to say at the end of this piece is that none of what I’ve been describing here cuts against the health case for a lockdown. That is and was a necessary step towards saving lives. What I am criticising is rather the way constitutional power has seeped towards the executive, resulting in the expansion of the law and its use in an authoritarian manner. The kind of policing we are witnessing is all of a piece with the corruption shown by ministers in the lockdown, the interpretation of the criminal rules so as to protect advisers and ministers, etc.

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