Protests During Lockdown (England): A Rule of Law Analysis

After the Metropolitan Police indicated that the vigil would breach the prohibition on gatherings in the current Tier 4 lockdown Regulations, Reclaim These Streets sought urgent clarification of the law from the High Court, including seeking a declaration that the prohibition on outdoor gatherings in the current Regulations is subject to the right to protest protected by Articles 10 and 11 ECHR.17. [...] The High Court applied the Court of Appeal’s reasoning in Dolan, and found that “it is inappropriate to treat the [Tier 4 lockdown] Regulations as if they give rise to a blanket prohibition on gatherings to protest, because that would fail to give effect to the law as laid down by the Court of Appeal in Dolan on the way in which the Regulations are to be read and applied compatibly with Articles 1. [...] The High Court did not declare that the prohibition on outdoor gatherings was subject to the right to protest, but only because the Judge felt that there was no need to make this declaration since the relevant law had already been expressed in clear terms by the Court of Appeal in Dolan, and by the High Court in an earlier case concerning the right to protest and the offence of obstructing a publi. [...] The lack of clarity and foreseeability in the law governing protests during the current Tier 4 lockdown fails to meet the basic requirements of the Rule of Law, and may mean that the police are not acting in a manner prescribed by law when they enforce the lockdown Regulations by restricting people’s right to protest. [...] We welcome the reintroduction in the New Regulations of a specific exception which acknowledges that protests should be allowed to take place at all stages of the roadmap for easing lockdown: this reflects the fundamental importance of the right to protest and the inappropriateness of blanket bans on such a fundamental right, even during a pandemic.