- The coronavirus undoubtedly poses such a threat that it engages the UK’s positive duty under Art 2 to take action to save life, and not to impose “harm” as an aspect of Arts 3 and 8. This paper does not address that but instead its focus is on one question, the human rights implications of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 specifically on Regulation 7, the restrictions on gatherings (and enforcement in Regulations 8-9).
- Regulation 7 states that no one may participate in a gathering of more than two people in a public place except
(a) where all the persons in the gathering are members of the same household,
(b) where the gathering is essential for work purposes,
(c) to attend a funeral,
(d) where reasonably necessary—
(i) to facilitate a house move,
(ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,
(iii) to provide emergency assistance, or
(iv) to participate in legal proceedings or fulfil a legal obligation.
- Regulation 7 engages the right to assemble peacefully and to associate in Art 11 of the ECHR. Since it constitutes a restriction – indeed, a near-total ban on assemblies, limiting the number of participants to two save in very limited circumstances – on the right, it requires justification under Art 11(2). Critical here will be whether the Regulations are lawful – both as a matter of domestic law and in terms of certainty and foreseeability – and do they constitute a proportionate restriction given the clear and imminent threat to health and life? There are concerns with both.
- If those concerns can be met by an interpretative approach – utilising s.3 of the HRA to confer (here) an Art 11 compatible reading, that would solve the problem. If not, and since these powers are contained in Regulations not in primary legislation then – absent a derogation order – the Regulations (or the offending parts) are susceptible to being declared unlawful and of no effect by virtue of s.6 of the HRA, s.4(4) offering no protection here.
COMPATIBILITY WITH ART 11
- Article 11 covers both “gatherings” (to use the term in the Regulations) that are for a political/expressive purpose and those that have a more social flavour, such as 25 journalists meeting in a café to celebrate Che Guevara’s birthday (Emin Huseynov v. Azerbaijan) or the meeting of a hunt (Countryside Alliance v UK), those latter marking a significant change in the court’s approach since Anderson v UK (1997). Undoubtedly, protest assemblies or assemblies that are more obviously politically expressive will have heightened protection, under the usual ECHR ‘scheme’, meaning that restrictions on such assemblies will require greater justification, perhaps by being accorded a lesser margin of appreciation.
- Regulation 7 prohibits most public gatherings; gatherings in private remain unaffected and thus subject ‘only’ to the ordinary powers of the police in e.g. s.14A Public Order Act (POA) 1986 (relating to trespassory assemblies), or the power to take action on private land in order to prevent a breach of the peace Thomas v Sawkins (1935).
- Article 11 is a qualified right – the scope of protection is set out in Art 11(1) but allows for proportionate restrictions provided they are (i) prescribed by law and (ii) imposed in order to (taking our situation) protect health, public safety, or protect the rights of others such as the right to life in Art 2.
- There are Art 11 concerns around Regulation 7, namely
i) Legal certainty/foreseeability of application (the standard Sunday Times test under the ECHR)
- How close/how far apart can three people be before they become a gathering?
- What constitutes a “public place”?
- Does it require a shared/collective intention?
ii) Proportionality of the measure: is there a rational connection between the means chosen (the wording of the Regulations) and desired outcome, specifically
- Why does it prohibit only gatherings in public?
- Why is a political meeting treated less favourably than gatherings for other purposes?
- Critical to the legal analysis is the fact that these Regulations were made under powers contained in the Public Health (Control of Disease) Act 1984 – they are not public order powers. As a matter of ordinary, domestic public law – standard judicial review principles (see e.g. R (oao Public Law Project) v Lord Chancellor  UKSC 39) – they can only be used lawfully to achieve the statutory purposes in s.45C, s.45F and s.45P of the 1984 Act namely to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination. Using the power to make regulations with a different purpose, whether or not health related or entirely new – maintaining social order or minimising disruption to the economy – would be unlawful as ultra vires, as would utilising the powers in the Regulations but not for a health-related purpose.
- The interpretation of the duty that Regulation 7 imposes on us all, and the exercise of the police powers in Regulation 8/9, must accord with that s.45 statutory purpose. What might that mean here?
Gathering in a public place
- The Regulations uses different terminology ‘gathering’ from the more usual ‘assembly’ in public order legislation (e.g. s.14 POA 1986). It is not clear why the drafter has latched onto a different term, but we must assume it is designed to connote something else, though we know not what since there is no definition: perhaps less fixed, more transient, less purposive, less linked to political participation (though see above at 6.), something conveying a synthesis of assembly an association?
- That said, the same questions over clarity/scope exist for ‘assembly’; s.16 of the POA 1986 takes us no further since its focus is on the location and number rather than how we can identify an assembly. The point has never been taken in reported cases – the closest was last year’s XR judicial review (R (oao Jones) v Commissioner of Police for the Metropolis  EWHC 2957 Admin) but here the question was whether the was one or several public assemblies across London, for the purposes of s.14(1) of the POA 1986.
- In summary: it would be safe to assume that ‘gathering’ will be given its ordinary English meaning, a coming together of people, but in some unknown way slightly different from ‘assembly’.
- Nonetheless, and bearing in mind the scientific evidence on risk of spread, it follows that the only proper interpretation of “gathering” is a group of people at less than c.2m distance. The risk of infection otherwise is not non-existent but too low, as most likely to be outweighed by the consequent loss of Art 11 rights to assemble. In other words, it would be disproportionate to adopt any other meaning. Such a reading is in line with the unlimited restriction on household gatherings, and both are consistent with a health-related interpretation being adopted.
- That too would remove any doubt over the application of Regulation 7 to on-line gatherings – organising etc on Facebook or meeting via Skype. By way of background, there is much discussion in NGO circles seeking to expand the meaning of assembly, and given protection, to include virtual assemblies. The slight risk that some activist groups have that the power in the Regulations might be used to control on-line political gatherings can also be met by considering the statutory purpose: it would be a misuse of power to seek to regulate on-line gatherings, under the guise of an undefined term.
- However, the absence of any clear explanation/definition in the Regulations – and given the mixed messages in both the Government’s Guidance and media campaigns about ‘social distancing’ which stress the need to keep 2m apart only when exercising or shopping – risks creating a chill on the right to assemble in Art 11, or of it being over-policed using Regulation 8(9). People, through fear of violating the law and/or ignorant of its scope, will simply choose not to gather.
- That is exacerbated by the lack of clarity in the Regulations about what constitutes a “public place”. There is no definition. Section 16 of the POA 1986 contains one, though that of course is not the parent Act, and does not govern health regulation or the prevention of spreading of infection, as we saw above: “any highway…and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.”
- The Firearms Act 1968, as one example, contains a slightly narrower definition: “any highway…and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise” and it is yet narrower in the Criminal Justice and Police Ac 2001: “any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.
- Which meaning should be adopted in the 2020 Regulations and, more importantly, if people do not know, they risk either (again) chilling their (protesting) behaviour, or breaching the Regulations and facing arrest under Reg 9?
- A recent judicial review – R (oao Pereira) v Environment and Traffic Adjudicators  EWHC 811 Admin – illustrates the difficulty of knowing the locational reach of traffic enforcement (P was issued a parking ticket when parked on her own privately-owned pavement) when a statute provides a definition. When it does not, the problems are magnified quite significantly.
- Lastly, what, if any, amount of collective intention or purpose, is needed to constitute a gathering? Do, for example, a group of individuals queuing outside a supermarket “gather” (in the sense used in Regulation 7) there – and if so, why? If not, why not? The most recent iteration of the UN’s draft General Comment No.37 (on the ICCPR equivalent to Art 11) talks of an assembly being a gathering of persons having a “common expressive purpose”.
- That though leads to this seeming contradiction or tension: if we require gatherings to display a common purpose, a formal exercise group of ten in a public park would be a gathering (and thus prohibited) whereas ten strangers who simply happen to stop and do sets of press ups etc would not. The health risk must be the same yet only one group is captured/banned. If, however, a gathering is constituted simply by three or more strangers being in the same place without any shared purpose – three dogwalkers all waiting to cross the road – then the risk of over-capture is (too) great.
- Neither is necessarily preferable but clarity on scope, reach and ‘bite’ is needed.
- At first sight, we might think Regulation 7 is redundant because of Regulation 6: groups of three or more are not able lawfully to congregate outside anyway because of the bite and reach of Regulation 6. That is not necessarily so. Regulation 6 does not prohibit being away from one’s home. It prohibits leaving one’s home without reasonable excuse, for example taking exercise or shopping for basic necessities. It does not mean that once outside only those activities can be performed – though of course, that is what many might feel and proving otherwise if arrested under Regulation 9(1) or directed under Regulation 8 will be very difficult. Nonetheless, it is currently lawful to be away from one’s home but not be shopping or exercising alone or only with members of the household, provided I left with the purpose in mind. That explains the need for Regulation 7, the near total ban on gatherings.
- This though creates a problem. Since the statutory purpose can only be for health-related reasons, and not to maintain public order/prevent social disruption why is it limited to gatherings in public places? The focus only on public places indicates the purpose might not be health-related but might instead be control the public sphere. While it is, I would concede, unlikely factually, neither Regulation 6 (see above) not Regulation 7 would render the following scenario unlawful: a group of friends – who all left with avowed intention to go shopping for basic necessities – chance upon each other in the supermarket and decide to have an ad hoc barbecue back at the house of one of them.
- This absence, the inclusion of public and exclusion of private places, of course can be explained on grounds of proportionality – the chances of it happening are low. Nonetheless, a concern that equating private with public would mean households ‘gather’ whenever three of them are inside is met by the specific exemption in Regulation 7(a); similarly, workers ‘gathering’ at their private workplace could continue since Regulation 7(b) specifically envisages that and allows it. The harms of infection and spread through ‘gatherings’ in private cinemas, clubs, bars etc has been met and obviated by Regulation 4 and Sched 2, Part 2 – they had to close.
- In short, it is hard to see what sorts of other private events (technically ‘gatherings in private places’) that might be captured by an expanded definition (‘whether in a public or a private place’) should properly have been thought by the drafters and policy-makers to warrant exclusion, given the overriding health objectives: the risk of transmission. The concern of capturing those people mingling, ‘gathering’, in those private places that remain open – supermarkets etc – could and would be met by defining ‘gathering’ as requiring some shared, collective purpose.
- The fact that it might thus be, in HRA terms, a proportionate measure – the harm caused by expanding the definition to include private places is outweighed by any benefits of allowing private gatherings – and so meet any Art 11 objections might not be enough. There would also be a possible claim on vires grounds: as drafted the limitation only on public places is not sufficient to effect the underlying statutory purpose of the 1984 Act, preventing the spread of infection between people not in the same household.
- A linked concern – based not on the Regulations but on the Government’s Guidance – is this. There is a greater restriction imposed on politically expressive collaborative activity – a (protest) assembly – than is imposed on taking exercise, important as that latter is no doubt to wellbeing and health and thus to e.g. Art 2 and Art 8. The guidance tells us that “even when [shopping or exercising], you should be minimising time spent outside of the home and ensuring you are 2 metres apart from anyone outside of your household.” I can therefore do sit ups in the park 2m away from two of my friends but I cannot stand, discuss and weight up together the Government’s response to the current pandemic or make clear (if such exists) our collective frustration at it.
- Such an example can only buttress the point made at 12. above: that three people more than 2m apart cannot constitute a gathering in law.
- At times of collective crisis and threat, there is public value and benefit to social cohesion on such matters but, and it is a big but, there is also wider social value – i.e. to others, not just to me or whomever else gathers to protest – of that public demonstration of political engagement and commitment. There is of course more at stake here – the clear and obvious risk to health and life through not taking suppressing measures. Urgency also demands clarity and simplicity, both evident in Regulation 7 and, of course, the speed with which all of this was devised by officials and parliamentary counsel is incredibly impressive.
- That said, there would be merit in seeking speedily to amend or clarify the Regulations along lines suggested above.