Social Distancing and the Black Lives Matter (“BLM”) Protests

02 July 2020

The violence leading to the death of George Floyd was despicable. Police brutality is inexcusable and should never be condoned. We are all right to recognise the structural racism and historic trauma suffered by the black community. The Bar Council is also right to say that as barristers we are part of a profession that represents and seeks to uphold justice for all and equality before the law not only in England and Wales but globally as well (here).

Black Lives Matter protests have been occurring all over the world showing solidarity towards George Floyd. In England, there have been mass gatherings of people in major cities, notably in London and Manchester.

This has occurred whilst the UK is still in a state emergency, and because of this we are in a mandated lockdown. All are required to adhere to social distancing regulations because of the Covid-19 pandemic. At the time of writing, lockdown has been in force for 100 days.

This situation presents an interesting dichotomy concerning the interplay of the right to protest with the observation of social distancing per the Coronavirus regulations and guidance. This article will examine the position and interaction of those two competing rights and how a balance might be struck.

The right to protest is enshrined by Article 11 of the European Convention on Human Rights (“ECHR”), which provides:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 11 is a bedrock of any democratic society and is commonly interpreted in light of Article 10, freedom of expression (Stankov v Bulgaria [2007] ECHR 582 - here). It is undoubted that Article 10 is engaged in respect of the BLM protests as to stop protests would act as muzzling individuals’ voice on a key societal issue, namely the structural racism and the historic trauma suffered by the black community.

Regulation 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended), provides that gatherings are still prohibited save for where prescribed as “necessary” (here). As such, Regulation 2(7) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Amendment No. 3) permits persons to gather in groups of no more than six (6). Regulation 2(6) provides for amendment of what is “necessary”. Notably it does not provide for the gathering of persons exercising their convention rights of protests or assembly. This omission is interesting as Article 11 is a qualified right that may be derogated from in the interests of “public safety…for the protection of health”, and to leave this uncommented upon appears to present a lacuna.

The state may interfere with the right to freedom of assembly in various ways. In Kudrevicius and Others v Lithuania [2015] 37553/05 at §100 the European Court of Human Rights (“ECtHR") stated that interferences may constitute more than just an outright ban. They may be interpreted “as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards” (here). For the purposes of the BLM protests, and generally during this lockdown period, this would involve the police issuing individuals fixed penalties (i.e. fines) under the Regulations.

Additionally, Article 11(2) maintains that the right can be derogated from as “prescribed by law”. However, the ECtHR has been clear about how this should be construed. In the case of Sunday Times v United Kingdom (No 1) [1979] (6538/74) at §49:

“Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct…Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.”

This was supported in the case of Vyerentsov v Ukraine [2013] (20372/11) at §52, where the ECtHR expounded that “[t]he law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”. Therefore, any criminal sanction such as Regulation 9 must be proportionate in the context of the right to peaceful protest and the law should clearly identify when there is a breach.

It is axiomatic that the law may impose sanctions for those who engage in reprehensible conduct or commit disorder and/or crime during a protest. On the other hand, Parliament’s intentions must be questioned in respect of the Regulations and the right to assembly. One can be forgiven for being confused as to that intention from the text of the regulations. It might be argued that the law is not sufficiently clear enough on the issue of Article 11, and it might be submitted that any interference with peaceful protest would be incompatible with that right.

Notwithstanding the above, the State has a positive duty to ensure for the protection of life, per Article 2 ECHR (Finogenov v Russia [2011] ECHR 2234 at para 209 - here) and thus should take appropriate steps to safeguard those in its jurisdiction from the virus and its potentially lethal consequences. Article 2, in peace time, may not be derogated from. There must be close scrutiny of the state’s actions wherever there is a real risk of loss of life. Many in this country and globally fear a second spike or the continuation of the pandemic.

The state must therefore take such action as necessary to avoid a second spike of Covid-19 which has already been crippling on individuals and businesses. However, it would be arguably disproportionate to deploy additional force to suppress the protests on account of fears of the virus reoccurring. To that end, the Home Secretary, Priti Patel, made a statement to the House of Commons on 15 June stating that “To protect us all, and to stop the spread of this deadly disease [coronavirus] any large gatherings of people remain unlawful” (here). However, in the context of Article 11, the law is not clear enough and this parliamentary statement bears little legal weight.

It is unconscionable to suggest that institutional racism and police brutality is not an important issue; it undeniably is and it needs to be addressed. The use of freedom of assembly and peaceful protest stands as a primary function for citizens to be able to bring societal issues requiring change to the forefront of political minds. Notwithstanding this, it cannot be forgotten that we are in the tail end of an unprecedented pandemic which has taken, in this country alone, circa 40,000 lives, with the real prospect of a second peak emerging if lockdown is relaxed too quickly. The concern for the reoccurrence of Covid-19 is that, despite the fact that main protests have taken place in London, Manchester and Bristol, people have travelled from all over the country to express their anger. As such, they would take any potential contagion back to their home communities following the protests.

These are potential arguments that could be heard in the awaited judicial review of R (Dolan) v Secretary of State for Health and Secretary of State for Education, 2020 (here). This is due to be heard in the coming weeks in the High Court and is going to challenge the legal bases that the lockdown was predicated on. It was advanced, in the pre-action letter to the Secretary of Health that there has been interference with several Convention Rights as a result of the lockdown, which has impacted individuals and businesses. Amongst these, it was argued that there is interference with Article 11 due to the Regulations receiving little scrutiny and by placing “an unreasonable impediment upon the mobilisation of opposition to such impositions upon rights and freedoms”. This was drafted at a time before the BLM protests had started. Thus, the BLM protests add a further dimension to the Article 11 argument to be argued in the judicial review, these protests bring a tangible example at the forefront of the submission that the Regulations are disproportionate as to Convention Rights.

As stated above, the engagement of Article 11 entwines itself with Article 10, freedom of expression and therefore the right of assembly cannot be confined in its definition. The concept of assembly is defined by the common purpose of its participants. This does not necessarily mean the physical attendance en masse by people. An excellent example is that on 2 June 2020 #blackouttuesday filled Instagram. There were millions of users that posted a black square to their Instagram page under this hashtag. This sent a powerful message through one of the biggest social media platforms. It showed global recognition and unity that people are aware of the systemic issue of institutional racism and that there is need for change. This was well within the bounds of peaceful protest and observed the letter of the coronavirus regulations.

The actions of the police in Minneapolis should not go unrecognised. We must all be cognisant of any form of police brutality or racism. This should never be tolerated in a democratic society. There is need for change in the US but also here in the UK. If people do choose to continue to protest, as is their right, then we should be mindful to ensure that there is some consideration for the ramifications of a second peak and evaluate the options for social distancing.

Jordan Santos-Sindes

9 Bedford Row