Paige Jones revisits the original 2020 lockdown regulations and the impact on the right to protest under Article 11 of the European Convention on Human Rights.
The original lockdown regulations, the Health Protection (Coronavirus Restrictions) (England) Regulations (SI 2020/350) (“the Regulations”), are a thing of the past but when they were introduced on 26 March 2020, they had a profound impact on how we went about our daily lives. More than a year on, it is still worth considering how these Regulations impacted our human rights, specifically our right to protest under Article 11 of the European Convention on Human Rights (“ECHR”).
The Regulations were secondary legislation created pursuant to the powers under section 45C of the Public Health (Control of Disease) Act 1984, as amended by Health and Social Care Act 2008, and contained a number of provisions. Of these, it can be said that the most severe restrictions were:
- Section 6(1): “During the emergency period, no person may leave the place where they are living without reasonable excuse”;
- Section 7: “During the emergency period, no person may participate in a gathering in a public place of more than two people” save for circumstances set out in section 7 (a)-(d); and
- Section 9(1): “A person who (a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or (b) contravenes a requirement in regulation 6, commits an offence.”
On 29 and 30 October 2020, the case of R (Dolan and others) v SSHSC and Another[1] challenged the government on the legality of these lockdown restrictions. The original challenge was based on three grounds:
- That the government had no power under the 1984 Act to make the regulations (the ‘vires’ argument);
- That the Regulations are unlawful according to ordinary rules and principles of public law; and
- The Regulations were incompatible with Convention rights and were therefore contrary to section 6(1) of the Human Rights Act 1998.
The Court of Appeal only allowed the appeal on the first ground, concluding that the government did have the relevant powers under the 1984 Act to make the Regulations (para 78). However, for the purposes of this article it is the third ground for appeal that will be explored.
Counsel for the appellants in Dolan submitted that the Regulations were incompatible with the following ECHR rights:
- Article 5 – Right to Liberty
- Article 8 – Right to Respect for Private and Family Life
- Article 9 – Right to Freedom of Thought, Conscience and Religion
- Article 11 – Right to Peaceful Assembly and Association
- Article 1 Protocol 1 – Right to Peaceful Enjoyment of Posessions
- Article 2 Protocol 1 – Right to Education
In the judgment, handed down on 1 December 2020, their Lordships held that the points put forward as to Articles 5, 11, Article 1 Protocol 1 and Article 2 Protocol 1 were all unarguable. As to Article 8, the court held that the restrictions were an interference with the right but that such was lawful and proportionate in light of the pandemic and the need to protect public health. Finally, the court refused to make a determination on Article 9 as a different case was due to be heard challenging the Regulations on this ground (R (Hussain) v Secretary of State for Health and Social Care).[2]
The Right to Protest
In the concluding remarks to this judgment, both the second and third grounds for appeal were held to be “academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable” (para 115). To that end, this article seeks to briefly explore a hypothetical alternative judgement, looking at if and how the Regulations impacted on the right to protest.
Article 11 of the ECHR states:
Everyone has the right to freedom of peaceful assembly and to freedom of association with others…
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. …
Also known as the right to protest, the absence of exercisable Article 11 rights was described eloquently by Kirsty Brimelow QC as “anathema to both democracy and freedom.”[3] Article 11 is a qualified right, meaning that there are some situations in which the right can be restricted but, in such circumstances, those restrictions must be lawful and proportionate.
Prescribed by Law
As set out within Article 11 itself, in order for a restriction on the right to protest to be lawful, it must first be ‘prescribed by law.’ In the case of Kudrevičius and Others v. Lithuania [GC],[4] the ECtHR held that this not only requires a legal basis in domestic law, but the quality of the law is also important as it must be sufficiently precise so as to be accessible and foreseeable in its effects (paras 108-109)
A similar point was established by Lord Hoffmann in R v Secretary of State for the Home Department, ex p. Simms, that: “fundamental rights cannot be overridden by general or ambiguous words…”[5]
When we look at the Regulations, neither section 6 nor 7 made any direct reference to protests. With the above in mind, it could be argued that the Regulations fell short of the requirements of clarity and precision required by previous domestic and European case law and therefore, may not have been ‘prescribed by law’ for the purposes of a lawful exception to Article 11.
Proportionality
The second element of a lawful interference with the right to protest under Article 11, requires that such an infringement must be proportionate and necessary in a democratic society.
The case of Christian Democratic People’s Party v. Moldova[6] held, at para 77, that any ban on protest, even temporarily, can have a “chilling effect” on the exercise of that right. It stands to reason then, that this effect ought to have been considered by the Court when assessing whether the Regulations were a proportionate interference with the right to protest.
For their part, the Court of Appeal in Dolan, at para 103 of their judgment, held that there was an “in-built” exception to the Regulations which provided that a person would not be in breach if they had a “reasonable excuse.” This “reasonable excuse” exception, it was suggested, was flexible enough to facilitate the right to protest in a way that could be fairly balanced between the legitimate aim of protecting public health and the right to protest. This would allow the Regulations to be applied to fact specific cases rather than being a disproportionate blanket prohibition on the right to protest.
The effect of the Regulations are best understood in their context. There is scope to argue that, when coupled by police enforcement of the Regulations and the threat of committing a criminal offence under section 9, the Regulations placed protesters in a de facto situation of increased vulnerability which could have a chilling effect on the right to protest such to be disproportionate.
This aspect of proportionality is key in assessing whether the Regulations were a lawful interference or not. More recently in the case of Leigh & Ors v The Commissioner of the Police of the Metropolis[7] which, although dealing with a newer version of the regulations, accepted that the reasoning on Article 11 in Dolan equally applied to this case (para 13). The Court considered that a blanket ban on protests would be unlawful (para 24). This point can safely be said to apply to the March 2020 Regulations as well as the new amended versions of recent months.
What Dolan and Leigh show us is that the importance of proportionality cannot be understated. In the context of Article 11, people who often exercise their democratic right to protest are those who are speaking out against injustice they have personally faced, as seen through the Black Lives Matter protests following the death of George Floyd and the Sarah Everard Vigil. It could be argued therefore, that if, as alleged at para 9 of Leigh, that the police had been implementing a blanket ban on protests since the March 2020 Regulations (which was denied by counsel for the police (para 24)) then this certainly would have been a disproportionate and unlawful interference with the right. Beyond the judgment of the Courts in these cases, it may still be said that those most impacted by the Regulations and its effects on Article 11 are those who already face marginalisation.
No matter the view you take of the Regulations, it seems clear that they did infringe upon the right to protest. The heart of the debate was whether such interference was lawful and proportionate. Some would say they were both necessary and proportionate given the severity of the pandemic and the need to protect lives, where others would passionately disagree. The above discussion simply touches upon issues that could, and perhaps should, have been addressed in determining the interplay between the Regulations and Article 11. Protests, time and again, have brought positive social change and are fundamental to democracy even in times of crises such as this pandemic. The crucial point is ensuring that any interference with this right, if necessary, is a proportionate one.
[1] [2020] EWCA Civ 1605.
[2] [2020] EWHC 1392 (Admin)).
[3] https://www.theguardian.com/commentisfree/2021/apr/05/government-freedom-expression-police-crime-bill-legislation-uk accessed 10 June 2021.
[4] 26 November 2013, 37553/05.
[5] [2000] 2 AC 115 [131].
[6] Judgment 14 February 2006, Case No. 28793/02.
[7] [2021] EWHC 661.
Image credit: Protest against the proposed Police Bill (Tim Dennell/CC BY-NC 2.0/Flickr)
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