Martin Rackstraw reflects on the Public Order Bill's implications for peaceful protests

Martin Rackstraw, Partner in the Russell-Cooke Solicitors, criminal and financial crime team.
Martin Rackstraw
6 min Read

“The right to protest is a fundamental principle of our democracy, but this is not an absolute. A balance must be struck between the rights of individuals and the right of the hard-working majority to go about their day to day business.”

With this statement Rishi Sunak has laid the ground for new, as yet unspecified, legislative restrictions on public protests. The announcement follows recent very substantial changes to the law on this area, contained in the Police, Crime, Sentencing and Courts Act 2022 (PCSCA), and forthcoming changes in the Public Order Bill. The Government clearly considers that more restrictive policing of public protests is a priority, and perhaps a vote-winner.

But is the balance that the Prime Minister refers to in danger of being upset by unnecessarily wide police powers that may stifle legitimate peaceful protest ? I suggest that it is.

The key word here, perhaps, is peaceful, although it is noticeable that the Government avoids using it.

The Public Order Bill's provisions create new offences targeting peaceful protests

The raft of new offences, police powers and sentences in the pipeline will apply to protesters who engage in non-violent activism. The Government is not primarily talking about protesters who cause injury or damage here. At most, the harm being addressed is disruption or nuisance.

The latest measures are extensive and technical. But a brief overview illustrates the Government’s uncompromising approach and gives a taste of what to expect in the future.

First, Part 3 of the Police, Crime, Sentencing and Courts Act 2022 (PCSCA), which is now in force. In fact the provisions of this vast piece of legislation that concern protests are relatively brief but they significantly extend the powers of police to restrict and disrupt non-violent demonstrations.

Central to this are sections 73 to 75 (amending sections 12 to 14 Public Order Act 1986) which now widen the circumstances in which the police may impose conditions on public processions and assemblies. This may now be done where it is reasonably believed that the noise generated by a procession or assembly may result in serious disruption to the activities of an organisation which are carried out in the vicinity.

Further, the power of the police to impose conditions on demonstrations is now expressly broadened to include where there may be significant delay to the delivery of “a time sensitive product to consumers of that product” or prolonged disruption to essential goods or services - widely defined to include money, food, energy, fuel and transport.  

The offence of failing to comply with a condition imposed by police now has an objective test and so can now be committed not only where a person knows a condition has been imposed but also where they ought to have known. New powers also allow the police to restrict one-person demonstrations.

To add coercive force, the maximum sentence for breaching a condition on a procession or assembly is now six months imprisonment. For good measure, s137 Highways Act has been amended so that the wilful obstruction of a highway, previously non-imprisonable, now carries a six month maximum sentence.

These provisions significantly increase both the power of police to control and limit public protests, and the severity of the sanctions for non-compliance.

The Public Order Bill goes further, mainly by proscribing specific protest techniques. Clause 1 creates an offence of “locking on” to an object or land.

The offence will carry a six month prison sentence. Another new offence, of “causing serious disruption by tunnelling,” will carry a maximum sentence of three years on indictment. The bill also creates offences of obstructing the construction or maintenance of major transport works, and of interference with the use or operation of “key national infrastructure” - the latter including transport and energy.

Further measures have now been trailed. The latest announcement from Downing Street makes clear that the Government intends to table an amendment to the Public Order Bill to widen the definition of “serious disruption” and to give the police the power to shut down a demonstration before any disruption is actually caused.

The police will also be permitted to assess the impact of multiple protests by a single group as a totality, rather than individually.  The details are not yet published but the aim, apparently, is to prevent the behaviour of a “small minority disrupting the lives of the public.”

The police have responded favourably – Metropolitan Police Commissioner Sir Mark Rowley commenting: “We have not sought any new powers to curtail or constrain protest, but have asked for legal clarity about where the balance of rights should be struck.”

It is clear from these measures, and accompanying Government rhetoric, that there has been a hardening of official attitudes towards disruptive public protests.

The language chosen by Government “Guerrilla tactics” and “hard-working majority” also strongly suggests an eye to political advantage, with ministers banking on the public having lost patience with the activities of groups like Insulate Britain and Just Stop Oil. But, reactive criminal legislation driven by politics is rarely satisfactory and can often have unforeseen consequences.

The measures above are particularly concerning for a number of reasons.

These measures will have a chilling effect on lawful demonstrations

First, the police and courts are being handed a wealth of new powers to prohibit, control and terminate protests and to impose more serious penalties for non-compliance. The Met Commissioner may say that his force has not asked for more powers, but the new legislation provides them in abundance.

This all amounts to the most far ranging legislative programme to be targeted at protest in over 25 years. And while some of the new offences created are specific, such as “locking on", other measures contain a concerning degree of uncertainty which is likely to be exploited to the full by police and prosecutors.

For example, the concepts of “time sensitive product” and “essential services” in Part 3 PCSCA as drafted, potentially allow for very wide interpretation. The importation of an objective test to the offence of failing to comply with a condition imposed on a procession or assembly is also a marked extension of the net of criminality around protests.

Collectively the measures add up to severe clampdown on public freedom of expression and may have a significant chilling effect on lawful demonstrations by deterring individuals, who have no intention of breaking the law, from participating at all - in much the same way that the police tactic of kettling protestors did a decade or so ago.

The increase in sentences for protest-related offences is particularly unwelcome. As has been emphasised, these provisions apply to non-violent offending and it is therefore difficult to see what peaceful conduct amounting to, say, highway obstruction, would actually warrant a six month prison sentence.

Ministers will argue that only the most serious cases will attract imprisonment anywhere near six months. But an increase in the maximum term for any offence has the effect of dragging all sentences for that offence upwards to peg individual sentences to the statutory maximum.

This is an effect that all criminal lawyers are familiar with, although Government fails to acknowledge it. It is difficult to characterise the increase in maximum sentences here as anything but oppressive.

There is another possible, although undesirable, consequence of this legislation. If protesters are now to face more restrictive policing and heavier penalties, some may think that there is less to lose by displaying restraint. The high profile actions by environmental and other organisations in recent years have involved remarkably little actual damage to property or active resistance to police intervention.

There is a risk that that may now change. No responsible party would welcome that, but the Government has undoubtedly raised the stakes.

In a democracy, public protest is inevitable and essential and many demonstrations involve an element of disruption, whether intentional or incidental.

No one suggests that there should be no legal restrictions on how and when individual protests should take place, and it has long been accepted by the Courts and activists alike that non-violent offences committed in the course of protest may be prosecuted, but will almost never attract custodial sentences.

That way, the right to freedom of expression and the rule of law are balanced. However, that balance is now in danger of being upset by criminal legislation that is excessive and unnecessary.

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