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Coronavirus: Are protests legal amid lockdown?

Black Lives Matter protest in Trafalgar Square

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Protesters chanted “black lives matter” and “say my name, George Floyd” in Trafalgar Square

Solidarity protests against the death of George Floyd in the US are continuing to take place in the UK despite the Home Secretary Priti Patel and the Metropolitan Police Commissioner Dame Cressida Dick asking people not to take to the streets.

So are such demonstrations actually legal given the coronavirus lockdown?

What do the lockdown laws say about protests?

England now has the loosest lockdown in the UK, with no restrictions on going outside. But the rules (officially known as regulations) don’t explicitly say anything about whether people can protest or not.

However, regulation seven restricts public gatherings to no more than six people.

The law defines a “gathering” as a meeting involving “social interaction with each other, or to undertake any other activity”. And so that means, pretty clearly, that a protest is currently illegal along with any other activity that could increase the spread of the virus.

What penalties could you face for taking part in a protest?

Police have been trying to encourage people to follow the law and the public health message, and they can break up gatherings. Before the death of Mr Floyd, this tended to mean officers directing large parties to stop and ordering people to go to their own homes.

Officers can hand out fixed-penalty notices – a form of on-the-spot ticket – that start at £100 to anyone who won’t follow the health regulations. They can also arrest and charge someone with an offence, potentially leading to a large fine in a magistrates’ court.

So taking all that together, officers have the power to break up and ticket people for being part of a protest, on coronavirus health grounds.

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The road to the US Embassy in London was blocked by a protest last weekend

Is there not a right to protest in the UK?

Yes, but this is where it gets rather tricky because that right is often misunderstood. And the coronavirus health emergency has complicated things further.

Barrister Audrey Cherryl Mogan, from London’s Garden Court Chambers, explains the European Convention on Human Rights (in British law as the Human Rights Act) says that public bodies must respect both the right to assemble and also to express one’s views.

But these two rights are not absolute. The government or another public body can interfere with them if it has a proper legal reason to do so.

“So it becomes a balancing exercise,” she says. “If what’s being done is to enforce the health regulations, then you can argue that [stopping a protest] would be reasonable and proportionate.

“But, this is where the context of where we are right now becomes important.

“We are not on the first day of the lockdown. It’s very clear that you are allowed outside, and to gather, although only in groups of six.”

Ms Mogan argues the police should approach these protests in the same way that officers would consider a park full of sunbathing friends.

“You can see there are people in small groups in parks. It’s very difficult to argue they are not all in the park for the same purpose. So if we are talking about stopping a protest, there has to be a fair and just application of the law to these people, as well as those in the park.”

If not, she warns, closing down a Black Lives Matter protest on coronavirus grounds could be seen as unfair and a disproportionate use of the regulations.

So where does that leave the police?

Chief constables today talk about their public duty to “facilitate” demonstrations – and that they only turn to force – such as bringing in riot police – if they believe they are going to have to quell trouble.

And it seems pretty clear that the police don’t want to break up peaceful Black Lives Matter demonstrations even though, on paper at least, they would breach coronavirus laws.

Metropolitan Police Commissioner Dame Cressida Dick has asked people not to come out and protest on the streets.

Speaking on LBC radio on 6 June she said that: “Coming together in a gathering is not only unlawful but also, perhaps more importantly, it is putting yourself and your family at unnecessary risk and other people around you.”

She said officers, if faced with large gatherings, would seek to uphold the law but would make “a case-by-case decision” as to what was the right thing to do.

The National Police Chiefs Council have also issued a very strong and unusual statement in the hope of calming tensions.

They said they are appalled by Mr Floyd’s death in Minnesota and know people want to make their voices heard.

“The right to lawful protest is a key part of any democracy, which UK police uphold and facilitate,” the statement added.

It pointed out that with gatherings of more than six people outdoors still restricted, “we ask that people continue to work with officers at this challenging time”.

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