Introduction
The right to protest is a cornerstone of any democratic society, providing a vital channel for citizens to express dissent, challenge authority, and advocate for social and political change. In the legal framework of England and Wales, these rights are principally protected through Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights (ECHR), incorporated via the Human Rights Act 1998. However, these rights are not absolute. They are qualified, meaning they can be lawfully restricted by the state for legitimate aims, including the prevention of disorder and crime and the protection of the rights and freedoms of others. The core legal challenge lies in determining where to draw this line. This essay will examine whether recent expansions to police powers, primarily through the Police, Crime, Sentencing and Courts Act 2022 (PCSC Act) and the Public Order Act 2023, strike a fair and proportionate balance between these competing interests. This essay will argue that while the state has a legitimate interest in managing public order, these new legislative measures have tilted the balance too far in favour of state control. The vague terminology, low thresholds for intervention, and severe penalties introduced by this legislation risk creating a significant ‘chilling effect’ on legitimate protest, thereby failing to strike a fair balance and undermining fundamental democratic freedoms.
The Human Rights Framework for Protest
Before analysing the new legislation, it is essential to establish the legal context in which protest rights are situated. The Human Rights Act 1998 requires public authorities, including the police and the courts, to act in a way that is compatible with ECHR rights (s 6(1)). Any interference with the qualified rights under Articles 10 and 11 must satisfy a three-part test. The restriction must be (1) prescribed by law, (2) in pursuit of a legitimate aim, and (3) “necessary in a democratic society” (ECHR, arts 10(2), 11(2)).
The 'necessary' test imports the principle of proportionality, which is central to evaluating police powers. This means there must be a pressing social need for the interference, and the measures taken must be rationally connected to their objective and go no further than is required to achieve it. The judiciary has often emphasised that a degree of disruption is an inherent and protected feature of effective protest. In DPP v Ziegler [2021] UKSC 23, the Supreme Court confirmed that when considering offences related to the obstruction of the highway during a protest, a proportionality assessment was required. Lord Hamblen and Lord Stephens stated that a "conviction for a protest-related offence will only be proportionate if, after a fact-specific enquiry, the court is satisfied that the prosecution was for a legitimate purpose and that a conviction is a necessary and proportionate means of achieving that purpose" (para 57). This ruling underlined that the right to protest can encompass activities that are intentionally disruptive, and this must be factored into the balancing exercise. The case of R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 also established that police action must be based on a real, not a remote, risk of disorder and must be the least intrusive measure available. This jurisprudence provides the benchmark against which the fairness and proportionality of new policing powers must be measured.
The Legislative Expansion of Police Powers
The traditional powers for policing protests were primarily found in the Public Order Act 1986. This Act allowed senior police officers to impose conditions on public processions and assemblies to prevent “serious public disorder, serious damage to property or serious disruption to the life of the community” (Public Order Act 1986, ss 12, 14). The key word here is ‘serious’, which set a relatively high threshold for police intervention. However, in response to the high-profile and disruptive tactics of protest groups like Extinction Rebellion and Just Stop Oil, the government argued that these powers were insufficient. This led to the introduction of two significant pieces of legislation.
First, the Police, Crime, Sentencing and Courts Act 2022 amended the 1986 Act in several key ways. It expanded the range of conditions that could be imposed on static assemblies as well as processions. Most controversially, it introduced noise as a trigger for imposing conditions. Police can now restrict protests that generate noise which may result in “serious disruption to the activities of an organisation which are carried on in the vicinity” or have a “relevant impact” on persons in the vicinity, where that impact is “serious unease, alarm or distress” (PCSC Act 2022, s 73). The Act also codified the common law offence of public nuisance, carrying a maximum sentence of 10 years’ imprisonment, for acts which obstruct the public in the exercise of their rights or cause "serious harm", a term which includes "serious annoyance" or "serious inconvenience" (PCSC Act 2022, s 78).
Second, the Public Order Act 2023 went even further, introducing powers that had previously been rejected by the House of Lords during the passage of the PCSC Bill. This Act created a series of new protest-specific criminal offences. These include ‘locking-on’ or ‘being equipped for locking-on’ (ss 1-2), obstructing major transport works (s 6), and interfering with key national infrastructure (s 7). Furthermore, it introduced Serious Disruption Prevention Orders (SDPOs), a type of civil order that can be imposed on individuals who have, on at least two occasions, committed a protest-related offence or caused or contributed to "serious disruption". An SDPO can require individuals to report to a police station or prohibit them from being in certain places or participating in particular protests (s 20), even if they have not been convicted of a criminal offence. Finally, the Act gives police new powers to stop and search individuals for items intended for use in connection with protest-related offences, without the need for suspicion in a designated area (s 11).
Balancing the Interests: The State's Justification
The government’s justification for these expanded powers rests on the argument that the balance had previously swung too far in favour of protestors, at the expense of the public. The Home Office stated that the measures were designed to counter "guerrilla tactics" and prevent a "small minority of protestors" from causing "disproportionate disruption" to the lives of the "law-abiding majority" (Home Office, 2021). From this perspective, the rights of the wider community to go about their daily lives—to travel to work, to access healthcare, and to run businesses—were being unfairly impeded by disruptive protests.
It can be argued that the new legislation provides greater clarity for the police in situations where the line between legitimate protest and unreasonable disruption is blurred. By creating specific offences like ‘locking-on’, the law removes ambiguity and provides a clear basis for police action where previously they may have had to rely on more general offences. The government’s view is that this ensures police can act more quickly and decisively to end disruptive situations, thereby protecting the economy and public access to essential services. Proponents would argue that the powers are not aimed at banning protest, but rather at managing its more extreme and disruptive manifestations, ensuring that it does not cross a line into causing unacceptable harm to the wider public. Therefore, from this viewpoint, the measures are a necessary and proportionate response to a change in protest tactics and are essential for maintaining public order.
An Unfair Balance: Disproportionality and the Chilling Effect
Despite the government's justifications, a closer analysis reveals that the new powers fail to strike a fair balance. The core of the problem lies in the vagueness of the new legal tests and the disproportionate severity of the consequences for protestors. The Joint Committee on Human Rights (JCHR) has been a vocal critic, warning that the measures risk "an erosion of our fundamental rights" (JCHR, 2021, para 1).
A significant issue is the ambiguity of the new terminology. Terms like “serious unease” introduced by the PCSC Act are subjective and lack legal certainty. What one person finds deeply unsettling, another might see as a legitimate part of a noisy demonstration. This vagueness vests an excessive amount of discretion in the hands of individual police officers on the ground, potentially leading to inconsistent and discriminatory application of the law. This uncertainty has a ‘chilling effect’: individuals and organisations may choose not to protest at all for fear of inadvertently crossing a poorly defined legal line (Ewing, 2022). This self-censorship undermines the very purpose of Articles 10 and 11, which is to protect expression that may be unpopular or unsettling.
Furthermore, the legislation appears to lower the threshold for interference in a way that is incompatible with the principles set out in Ziegler. By defining "serious disruption" in the Public Order Act 2023 to include any disruption that is "more than minor", the law moves away from the high bar of the 1986 Act. As many forms of effective protest are inherently more than "minorly" disruptive, this change effectively gives police the power to prevent or shut down almost any impactful demonstration. This directly contradicts the judicial recognition that protest often involves a degree of disruption to be effective.
The proportionality of the new sanctions is also highly questionable. Sentences of up to 51 weeks for locking-on, or 10 years for public nuisance, appear severe for acts that are often non-violent. Most concerning are the Serious Disruption Prevention Orders. These are preventative orders that impose significant restrictions on an individual’s liberty and freedom of association, but they can be imposed on a civil standard of proof (balance of probabilities) and on individuals who have not been convicted of any crime. This has been criticised as a form of pre-emptive punishment that offends basic rule of law principles, effectively allowing the state to ban people from protesting based on their past behaviour (Liberty, 2023). The expansion of suspicion-less stop and search powers is another disproportionate measure that encroaches on individual liberty and risks being used in a discriminatory manner against specific groups of protestors.
Conclusion
In conclusion, the fundamental rights to freedom of expression and assembly are essential to a functioning democracy, and while they may be restricted to protect public order, any such restriction must be proportionate and necessary. The recent legislative changes in the PCSC Act 2022 and the Public Order Act 2023 have demonstrably failed to strike a fair balance between these interests. The government has responded to the challenge posed by disruptive protest tactics with a set of powers that are overly broad, vague, and disproportionately severe. By lowering the threshold for police intervention, introducing ambiguous concepts like “serious unease,” and creating draconian preventative orders like SDPOs, the legislation has equipped the state with tools that are likely to deter and suppress legitimate dissent. The cumulative impact is a significant 'chilling effect' on the willingness of ordinary people to exercise their democratic right to protest. While maintaining public order is a legitimate aim, these laws have tipped the scales too heavily in favour of control and convenience, at the profound expense of fundamental freedoms. Therefore, the expanded powers do not represent a fair balance but rather a regressive step that unduly restricts the space for protest in England and Wales.
References
Cases
- DPP v Ziegler [2021] UKSC 23
- R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
Legislation
- European Convention on Human Rights 1950
- Human Rights Act 1998
- Police, Crime, Sentencing and Courts Act 2022
- Public Order Act 1986
- Public Order Act 2023
Secondary Sources
- Ewing, K.D. (2022) 'The dramatic implications of the PCSC Act' King's Law Journal, 33(3), pp. 386–399.
- Home Office (2021) Police, Crime, Sentencing and Courts Bill 2021: factsheet. [Online] Available at: [https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-factsheet](https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-factsheet) (Accessed: 15 May 2024).
- Joint Committee on Human Rights (2021) Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order), HC 21, HL 22. The Stationery Office.
- Liberty (2023) Public Order Act 2023. [Online] Available at: [https://www.libertyhumanrights.org.uk/issue/the-public-order-act-2023/](https://www.libertyhumanrights.org.uk/issue/the-public-order-act-2023/) (Accessed: 15 May 2024).
