The Four Tier Covid-19 Lockdown Regulations
The whole of England is currently in Tier 4.
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 as of 6th January 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 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 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 14 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These previous regulations (three tiers) have now been replaced by a set of regulations, organised into four tiers Medium, High, Very High and Stay at Home.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. On the 6th January 2021, an amendment was made to the regulations that placed the whole of England into Tier 4.
These regulations forbid inter-household gatherings of any size indoors and outdoors.
Whilst there is an exception for protests in the regulations for areas in Tier 1, 2 and 3, there is not an exception for protests for areas covered by the Tier 4 regulations. The exception for protest was not listed as an exception when the new Tier 4 regulations were published on the 6th January 2021.
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. However, as protests are not permitted as part of the Tier 4 restrictions, facilitation of protests does not seem to be 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” which is more severe than those in previous regulations. The fixed penalty notices now 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 are untested in the courts. That means that the way in which the police will interpret them is unpredictable. In addition, these regulations are not as clear as previous versions of the regulations with regard to attending protests. As we saw with previous iterations of the old 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.