Guest post by Mira Hammad: Covid-19 and the right to protest: an alternative view

I am pleased to host this guest blogpost by Mira Hammad, a pupil barrister at Garden Court North Chambers. It is written in response to the guest blogpost by Rebecca Penfold and Aparna Rao, published last week.  

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In their blogpost Rebecca Penfold and Aparna Rao look at the amended Coronavirus Regulation 7 and whether it infringes the right to protest. Regulation 7 prohibits outdoor gatherings of more than 6 people. The authors conclude (as have many lawyers commenting on this issue) that protests are unlawful under that provision. If this is so, it clearly interferes with our right to protest under the Human Rights Act.

The post goes on to consider whether this is a permissible limitation on the right to freedom of assembly and association. In the authors’ view “in order to argue otherwise, one would need to be able to show that, far from the limitation on gatherings being an unavoidable side-effect, the COVID-19 regulations are being used, or misused, as a means of silencing free expression.”

But that isn’t the test that the courts apply when it comes to the lawfulness of an interference with our human rights. In the defining protest case, DPP v Ziegler and Ors [2019] EWHC 71 (Admin), the court set itself a much more exacting set of questions.

Where a defendant is legitimately acting in exercise of her right to protest and there is an interference by a public authority, even if that interference is prescribed by law, the court still needs to ask:

  1. Whether the interference is in pursuit of a legitimate aim, and
  2. Whether the interference is necessary in a democratic society to achieve that legitimate aim.

Clearly the answer to the first question is yes. The answer to the second question is much more interesting. To answer it, the court would need to ask itself a series of sub-questions including:

  1. Is there a rational connection between the means chosen and the aim in view?
  2. Are there less restrictive alternative means available to achieve that aim?
  3. Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?

These questions are fact specific – in other words they cannot be answered in the abstract in relation to everyprotest and every interference by the police.

For example, we can imagine a protest where all of the participants are 2 metres away from each other and wearing masks. The police then turn up, herd protestors into a smaller space and (not wearing masks) themselves get close to people to arrest them. Would there be a rational connection between the police doing that and preventing the spread of the virus? Is that the least restrictive way of preventing the spread of the virus while allowing people to protest? Where in that balance are the rights of the individuals?

We can see these are not cut and dry questions.

Nor is it a simple answer to point out, as the authors do, that protestors could express their views in other ways, on Twitter for example. As the Court of Appeal has emphasised (Hall v Mayor of London [2010] EWCA Civ 817) the right to express views publicly (particularly on important issues) “extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views.”

The authors also point out that there is a 28-day review on the infringement, and that the regulations are clearly being amended to relax the restrictions over time. This isn’t necessarily a definitive answer either.

The fact that we are now in a phase where restrictions have been relaxed to allow gatherings for the purposes of training elite athletes (7.2(c)) is likely to make it more difficult, not less, to show that a blanket ban on protests is necessary.

Protests are also time-sensitive, people around the world are protesting as a result of the despicable killing of George Floyd and they are protesting now. To say that protestors can wait for 28 days and see what the government has to say in its review simply doesn’t answer the question of whether the interference with their right to protest is lawful today.

Where does all of that leave us? In my view, nowhere very clear cut. The courts would have to make a decision with regard to each defendant. They would have to consider the questions above in the context of that particular protest and decide whether the interference prescribed under the Regulations is lawful under the Human Rights Act or not.

And if it is not, what does the court do then? Well, in the first instance, courts have to interpret legislation as far as possible so that it is compatible with human rights. The courts would have some options before them in this regard. Could an exception be read into the definition of ‘gathering’ or ‘activity’? Could some protests be deemed to fall into exception 7.2(f) where a gathering is lawful where it is reasonably necessary for the purposes of education (…and one could certainly argue that public education is needed on the issue of racism…)? If the courts feel that there is no possible way of interpreting the regulations so that they are compatible with human rights, then a declaration of incompatibility would have to follow.

Blanket provisions and clear-cut answers don’t usually sit well in the arena of human rights law, where the reigning principles are proportionality, balance and necessity. The extraordinary times in which we find ourselves don’t change that.

One thought on “Guest post by Mira Hammad: Covid-19 and the right to protest: an alternative view

  1. Thanks to SB and Mira Hammad for continuing this important debate.

    Mira, you’re absolutely right – the court will need to ask itself those questions (Ziegler 2019). The legitimate aim in the COVID regulations is the protection of public safety and health. Our view is that an illegitimate aim would be one where COVID-19 was being used as an excuse to quash the right to protest. We would argue it’s unlikely that a court would find that this particular interference was made in pursuit of an illegitimate aim, given that these regulations are being drafted at lightning speed with the aim of protecting all of us from a global pandemic. Naturally, this is ultimately a question for the courts and it has not yet been litigated.

    We hope we haven’t suggested that there is a single answer to all protest activity. We’re giving a view on the likely application of the regulations and some reasons why a court might find that the regulations are compatible with the ECHR. It would be sad if this was the kind of area where each case had its own specific answer and no general points could be drawn to help potential protesters. We hope it’s more likely that a test case will produce some useful answers on this kind of behaviour and the legitimacy of these regulations.

    The example you give of police herding protestors into a small space (kettling) is of course not something that is facilitated by the COVID regulations (reg 8(9) and (10) which simply empower the police to direct a gathering to disperse, direct people to return home, and remove someone to their home). Kettling, and mask-removal, are pre-COVID public order powers, which might now be used by police in ways that are contrary to public health and safety. This is a very serious issue, but it is a different question from the question whether the COVID regulations are a legitimate interference with Articles 10 and 11.

    We do disagree on one point – the availability of other avenues of protest that aren’t being censored is in our view a relevant consideration to the necessity and legitimacy of a temporary restriction on our rights. As an example, it goes to the third sub-question you cite (“Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?”). The fact that there are other means of protest, and that these are in no way curtailed by UK COVID regulations, helps us to assess this. Non-physical protests are increasingly equally valuable and important. Further, the factors mentioned in Hall (2010) must be qualified, depending on the circumstances, by the risk to public health and safety by permitting people to protest in any way they choose.

    Similarly, we hope we didn’t suggest that protesters should wait for the next 28-day review. We agree protesting is time-sensitive. What the review period and relaxations show is that Parliament has in mind the necessity of the interference and is revisiting it regularly. So, if one were to enquire (as you ask) whether there is, today, a lawful interference with the right to protest, the fact that the regulations are regularly reviewed and relaxed would be one ground on which a court might find that it is a necessary and legitimate interference and thus lawful.

    Once again, thanks for your useful and alternative view post!

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