How might the Coronavirus Regulations Impact Activists?

The Three Tier Covid-19 Lockdown Regulations

Introduction

This note deals with the current state of the Covid-19 lockdown regulations and tries to consider how they are likely to affect organised protest. It is current to 18 October 2020.

Background to the Regulations

The so-called ‘lockdown regulations’ (The Health Protections (Coronavirus, Restrictions) (England) Regulations 2020) initially came into force on 26 March 2020. They were amended a number of times, and then replaced by a new regime, called The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, which came into force on 4 July 2020 and were a bit more permissive with regard to gatherings.

The (No.2) lockdown regulations were subject to numerous amendments too, and there were lots of local regulations which ran alongside the general English regulations, which related to areas with higher infection rates.

The (No.2) lockdown regulations have now been effectively replaced by a third set of regulations, organised into three tiers: Medium, High and Very High. These are actually three different sets of regulations which came into force on 14 October 2020.

Tier 1:

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020:

Tier 1 (Medium) is any area in England which is not Tier 2 (High) or Tier 3 (Very High). 

Restrictions on Gatherings

A gathering is defined (at paragraph 8 of part 1 of Schedule 1 of the Regulations) to mean two or more people who are present in the same place to engage in social interaction with each other or to do any activity with each other. The meaning of gathering is therefore very widely drawn.

In essence, the rule of 6 applies to gatherings indoors and outdoors unless certain exceptions apply. It is beyond the scope of this note to cover the details of the rule of 6 in any detail, but there is plenty of guidance available on this issue online.

Protests

Gatherings for the sake of protest are exempted under the regulations in certain situations. (Schedule 1, para 3, “Exception 12”). That paragraph states that where a gathering is for the sake of protest and has been organised by, among other things, a political body, and the organiser of the gathering takes the required precautions, then the gatherings are permissible.

The term ‘political body’ is clarified at Schedule 1, paragraph 8, by reference to The Health and Social Care (Financial Assistance) Regulations 2009 to mean a person doing activities which promote changes in law or government policy. It does appear that this definition includes groups operating under the banner of XR. In the September 2020 rebellion, the police were satisfied that XR qualified as a political body for the purposes of the regulations in place at the time, so this seems likely to continue under the new regime.

The required precautions are set out at Schedule 1, para 6. They are that the meeting organiser (1) carries out a risk assessment satisfying the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999and (2) all reasonable measures have been taken by the organiser to limit the risk of transmission of coronavirus, taking into account the risk assessment and any relevant government guidance.

The requirements under reg 3 of the Health and Safety at Work Regulations 1999 are difficult to summarise, as that regulation has wide application, but, in short, it requires a ‘suitable and sufficient’ assessment of the health risks (1) to employees (in this case, by analogy, rebels) and (2)  to those affected by the conduct (in this case, those who might come into contact with the protest). Where young people are involved, there are additional requirements, including a need to take into account the potential immaturity of young people, and the organisation of processes and activities.

Organisers are likely to find it helpful to speak to XR police liaison who now have good experience of preparing risk assessments which fit the necessary criteria, as well as knowledge of how best to disseminate the risk assessments.

Organising gatherings

Organising or facilitating gatherings of more than 30 people is a separate offence under the regulations (Schedule 1, part 1, para 2), unless one of the exceptions set out in the regulations applies to that gathering. Organisation or facilitation means to “hold, or be involved in the holding” of a gathering. Merely attending does not count as facilitation. For the reasons set out above, the organisation or facilitation of protest, provided that the requirements are met, is permitted.

Enforcement

The regulations can be enforced by a police officer, a police community support officer or someone designated as such by a local authority or secretary of state. This includes the power to direct gatherings to disperse, direct anyone in the gathering to go back to the place that they live, or even remove a person from the gathering using reasonable force.

Acting in breach of the restrictions constitutes a criminal offence. The offences are punishable by fines and conviction would result in a criminal record. But the police can also choose to use a regime of “fixed penalty notices” or “FPNs” which is more severe than those in previous regulations. The fixed penalty notices now range from – effectively - £100 for a first FPN paid within 2 weeks, to £6,400 for a sixth FPN, or any offence thereafter.

There is a fixed penalty of £10,000 for organising gatherings of more than 30 people, unless the gathering is permitted under one of the exceptions.

Tier 2:

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020

These regulations forbid meetings inter-household gatherings of any size indoors (except linked households) but the rule of 6 applies outdoors.

Restrictions follow you – if you live in a higher risk area, you are bound by the restrictions on the area where you live, even if you visit an area in a lower tier.

The restrictions on protest are in the same terms as Tier 1 for the time being, so please refer to that.

Tier 3:

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020

These regulations forbid inter-household gatherings of any size indoors (except linked households). The rule of 6 applies in some public outdoor venues like parks and sports courts.

Restrictions follow you – if you live in a higher risk area, you are bound by the restrictions on the area where you live, even if you visit an area in a lower tier.

The restrictions on protest are in the same terms as Tier 1 for the time being, so please refer to that.

Conclusion

These regulations are untested in the courts. That means that the way in which the police will interpret them is unpredictable. As we saw with previous iterations of the old regulations, the police have used these new powers to shut down protests, and no assurance can be given that they won’t be used in the same way here. Care should always be taken to look at the relevant regulations in place when planning any action, as the regulations change very frequently and this note is necessarily vague and cannot be relied on as advice.

Current as of 18th October 2020