The Three Steps Coronavirus Regulations
The whole of England is currently in Step 1.
This note deals with the current state of the Coronavirus regulations and tries to consider how they are likely to affect organised protest. It is current as of 31st March 2021.
Background to the Regulations
The so-called ‘lockdown regulations’ (The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020) initially came into force on 26th 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 4th 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 were then effectively replaced by a third set of regulations, organised into three tiers: Medium, High and Very High. They were actually three different sets of regulations which came into force on 14th October 2020.
These previous regulations (three tiers) have now been replaced by a set of regulations, organised into four tiers Medium, High, Very High and Stay at Home. These came into force, as an amendment (The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020) of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, on 20th December 2020. These regulations were not as permissive of gathering as some of the previous sets of regulations were.
The current Coronavirus regulations have been organised into three steps and these together form the The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 which came into force on the 29th March 2021.
Restrictions on Gatherings
A gathering is defined (at paragraph 5 of Regulation 2) 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 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.
Gatherings for the sake of protest are exempted under the regulations (Para 27, Exemption 17, Part 1 of Schedule 1) in certain situations. The regulations state 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 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 and will most likely apply to most other protest groups as well.
XR Note: 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 in Regulation 6. They are that the gathering organiser (1) carries out a risk assessment satisfying the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999 and (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, protestors) 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.
XR Note: '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 or facilitating gatherings of more than 30 people is a separate offence under the regulations, 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.
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”. The fixed penalty notices range from – effectively - £200 for a first FPN (£100 if 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.
These regulations are brand new and have not been fully tested 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 older regulations, the police have used the Covid-19 regulations to shut down protests, and no assurance can be given that they won’t be used in the same way here. Indeed, attempts to clarify the police’s position with police forces including the Met has resulted in a less than clear response.
As always, 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.