The Public Order Act 2023: Has our right to protest been restricted?

The new Public Order Act extends draconian police powers - such as suspicionless stop and search - previously unique to the context of serious violence and terrorism, to peaceful protest activities.

In our view, the new Act is a staggering assault on the right to protest as well as an attack on our fundamental rights and our right to stand up for what we believe in (engaging Articles 8, 10 and 11 of the European Convention on Human Rights).

The new powers extend powers previously only reserved to the most serious violence and terrorism – to the peaceful and non-violent invocation of our fundamental rights. We believe they will lead to more aggressive policing, and disproportionately harm already over-policed communities, and people of colour, leading to more state abuses of power and further distrust of police by the general public.

The government has sought to justify the introduction of these new offences and powers citing the drain on resources caused by more recent protest activity, such as that of Extinction Rebellion and Just Stop Oil. However, they do not appear to have addressed the issue of whether the existing powers and law were sufficient for that purpose.

Strikingly, the current head of the Crown Prosecution Service (‘CPS’) Max Hill KC, has pointed out that the prosecuting authorities already had the tools needed to deal with protesters appropriately, without the need for the new draconian powers and offences; for example, powers of arrest and prosecution in respect of offences already available, such as ‘obstruction of the highway’ and ‘public nuisance’.

Therefore, it appears the new Act is yet another example of the Government seeking to limit citizens’ rights unnecessarily, and arbitrarily balance power even further towards the State.

The main new offences

The main new offences to be aware of are:

• • Locking on or going equipped for locking on [already in force]
  • Serious Disruption by tunnelling [not yet in force – plainly has in mind the sorts of actions by those like Just Stop Oil]
  • Obstruction of major transport works [not yet in force; extremely broad drafting of the provisions, and unclear what ‘apparatus’ will be taken to mean exactly; to be guilty of the offence does not appear to require an intention to cause disruption].
  • Interference with the use or operation of key national infrastructure [already in force; key national infrastructure includes ‘newspaper printing infrastructure’ despite the fact most news is now distributed on the internet and by other means].

New suspicion-less power to stop and search (section 11)

The Act provides for a new stop and search power (not yet in force), allowing uniformed police officers to undertake suspicion-less stop and searches in a particular location, for a specific period, when a senior police officer (Inspector or above) reasonably believes that various offences may be committed, including the above-mentioned new offences, or that persons are carrying prohibited objects in the locality. A whole area can be stopped and searched just in case they are holding prohibited items.

Moreover, the definition of a ‘prohibited object’ is incredibly vague - “one made or adapted for use in the course of or in connection with” one of the specified offences. It is therefore conceivable that the police will seize items as innocuous as bike locks, gaffer tape, plastic cable ties, tools of trade, and so forth.

The stop and search can be undertaken whether or not the officer has any grounds for suspecting that the person (or vehicle) is carrying a prohibited object, and all that will be required to seize the ‘prohibited item’, is that the officer has reasonable grounds for suspecting it to be a ‘prohibited object’.

Implications of this provision:

• • It equates peaceful and disruptive protest with ‘serious violence’, by extending the use of suspicion-less stop and search to non-violent action, giving a sense of how draconian these powers really are.
  • Vague and widely defined powers risks over-policing and the deterrence of peaceful and lawful protest.
  • The potential for discriminatory application is obvious, given the well-documented overuse of such powers against ethnic minority communities. Section 60 (suspicions less searches used in the context of serious violence) have already been found to be ineffective and hugely discriminatory. This fosters mistrust and over-criminalisation, not just from those communities, but from the general public. One only needs to look to the recent publicity around the Metropolitan Police Service particularly, to see how public trust in our forces has been significantly eroded.

This is likely in our view, to have a chilling effect on participation in peaceful protest. You can reasonably be expected on the basis of this legislation, to be stopped and searched for simply participating in a protest, making a call to a friend, going to photograph a protest, and the like.

Serious Disruption Prevention Orders (‘protest banning orders’)

We have not discussed other draconian aspects of the Act here, but the new Serious Disruption Prevention Orders (‘SDPOs’) or ‘protest banning orders’, [provisions for which are not yet in force] are especially deserving of a brief mention.

Significantly, SDPOs were rejected by the Home Office at the National Police Chiefs Council round table event in June 2019, which was held “to explore the most practical legislative options that would assist in policing protests more effectively”. This meeting came after the Met had received stinging criticism from the political right and media, further to their policing of an Extinction Rebellion event in April 2019.

Some of the police at that round table meeting were supportive of such orders, however, others in attendance at the meeting regarded such banning orders as a disproportionate infringement of the right to freedom of expression and peaceful assembly. One senior police officer believed that banning orders would “unnecessarily curtail people’s democratic right to protest”. Another commented that a protest banning order is “a massive civil liberty infringement”. There was also a view that “the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable”. One operational officer could not see the value in the proposal, stating that “this is a very different context to football” referring to the issue of hooliganism there, namely, organised and extreme violence, disorder and racial hatred. The context and balance of rights is quite different here.

The Home Office opposed such orders at that point, for the following reasons:

‘The police have identified circa thirty environmental activists who travel the country orchestrating protests and taking direct action which often involves the influencing of others to commit crimes. These individuals are undeterred by the threat of arrest and the relatively small fines they are likely to receive if convicted at court for types of offences committed during peaceful protests. This proposal essentially takes away a person’s right to protest and we believe banning people from attending peaceful protests would very likely to lead to a legal challenge.

‘Furthermore, regardless of the maximum sentence set down for breaching an order, the court imposing the sentence would still need to consider the person’s rights to freedom of expression and assembly and impose a sentence that is proportionate. It therefore appears unlikely that a court would issue a high penalty to someone who is peacefully protesting. Consequently, we believe it unlikely the measure would work as hoped’.

The HMICFRS agreed with that view and that shared by many senior police officers. “All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order” (HMICFRS Report: ‘Getting the balance right? An inspection of how effectively the police deal with protests’).

Conclusion

We conclude that the new Act will effect a further increase of state power, at the cost of civilian rights, representing further democratic decline.

It remains to be seen how the new offences and powers will be applied, as many aspects of the Act are still yet to come into force. However, given the broad and often vague drafting of the Act, and the clear lowering of the threshold for criminality, we expect to see a dramatic impact upon protests and an increase in arbitrary state use of the new powers and offences, to restrict and criminalise what would previously be described as an exercise of the peaceful right to protest, or non-violent direct action.

The great difference between the new criminal offences and those previously in existence, are the much tougher sentences on conviction. Further, the Act creates a much easier excuse for the police to disrupt non-violent direct activity, and impose very strict and stringent bail conditions. We are additionally concerned at the underpinning of legislation such as this, by government pressure for a massive increase in intrusive surveillance, particularly when SDPOs come into force.

Questions also remain such as how the courts will interpret the worryingly vaguely drafted section on ‘Meaning of serious disruption’? Serious disruption is said to include situations in which individuals or organisations are - by way of physical obstruction - prevented or hindered ‘to more than a minor degree’ from e.g. carrying out day-to-day activities, such as making a journey. In our view, this could conceivably extend to any disruption at all and could result in perfectly minor protest activity being criminalised.

Just because you happen to be in an area where the police reasonably believe for example, that locking on may be committed, you could be stopped and searched and have your belongings seized simply for being in the wrong place at the wrong time.

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