Introduction
In any democratic society, the relationship between the state’s duty to maintain public order and the individual’s right to protest is a source of constant tension. The rights to freedom of expression and freedom of peaceful assembly, protected under Articles 10 and 11 of the European Convention on Human Rights (ECHR) and incorporated into UK law by the Human Rights Act 1998, are fundamental pillars of a functioning democracy. However, these rights are not absolute. They are qualified, meaning they can be lawfully restricted by the state for legitimate aims, such as the prevention of disorder or crime, provided such restrictions are necessary and proportionate. Recently, the UK Parliament has enacted significant legislation, namely the Police, Crime, Sentencing and Courts Act 2022 (PCSC Act) and the Public Order Act 2023 (POA 2023), which considerably expands the powers of the police to manage and control protests. This essay will argue that these new powers do not strike a fair balance between the competing interests of public order and freedom of expression. By introducing vaguely defined concepts, lowering the threshold for police intervention, and creating new preventative measures, the legislation prioritises the avoidance of disruption over the protection of fundamental democratic rights, creating a significant risk of a ‘chilling effect’ on legitimate protest.
The Human Rights Framework for Protest
The legal protection for protest in the UK is primarily founded on Articles 10 and 11 of the ECHR. Article 10 protects freedom of expression, while Article 11 protects freedom of peaceful assembly. The European Court of Human Rights has consistently emphasised the importance of these rights, stating that they constitute one of the essential foundations of a democratic society (Handyside v United Kingdom, 1976). Domestic courts have echoed this sentiment. In Redmond-Bate v DPP (1999), Lord Justice Sedley famously held that "Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having" ([1999] EWHC Admin 733). This establishes that protest does not have to be quiet or palatable to be protected.
However, both Articles 10 and 11 contain limitation clauses. For a restriction to be lawful, it must be (i) prescribed by law, (ii) in pursuit of a legitimate aim (such as national security, public safety, or the prevention of disorder or crime), and (iii) ‘necessary in a democratic society’. The ‘necessity’ test requires that any interference corresponds to a ‘pressing social need’ and is proportionate to the legitimate aim pursued. The Supreme Court in DPP v Ziegler (2021) confirmed that a proportionality assessment must be conducted when considering convictions for protest-related offences like obstruction of the highway, weighing the importance of the protest against the level of disruption caused. The core legal question, therefore, is whether an interference with protest rights is a proportionate means of achieving a legitimate end. This principle of proportionality is the central metric for assessing the ‘fairness’ of the new policing powers.
The Legislative Context: From the Public Order Act 1986 to 2023
Prior to the recent changes, the primary tool for policing protests was the Public Order Act 1986. Sections 12 and 14 of this Act gave senior police officers the power to impose conditions on public processions and assemblies if they reasonably believed the protest might result in ‘serious public disorder, serious damage to property or serious disruption to the life of the community’. The key threshold was ‘serious’. The government argued that this framework was no longer adequate to deal with the highly disruptive tactics employed by modern protest movements such as Extinction Rebellion and Just Stop Oil, which involved deliberately causing widespread disruption by blocking major roads, bridges, and infrastructure (Home Office, 2021). The government’s position was that the ‘serious disruption’ threshold in the 1986 Act was too high, preventing police from intervening in protests that caused significant, albeit not ‘serious’, disruption. The subsequent legislation was therefore introduced with the explicit aim of re-calibrating the balance in favour of the ‘law-abiding majority’ and preventing what the government termed ‘guerrilla tactics’ (Home Office, 2022).
An Unbalanced Expansion of Powers
The PCSC Act 2022 and the POA 2023 introduced a wide range of new powers and offences that significantly alter the legal landscape for protest. When examined, these measures appear to tilt the balance too far away from the protection of fundamental rights.
Lowering the Threshold for Intervention
A key change introduced by the PCSC Act 2022 was the redefinition of the trigger for imposing conditions on protests. The Act empowers the police to act not only to prevent ‘serious disruption’, but also where a protest is noisy enough to have a ‘relevant impact’ on people in the vicinity. A ‘relevant impact’ is defined as causing ‘serious unease, alarm or distress’ (PCSC Act 2022, s.78). These terms are highly subjective and lack legal clarity. What one person considers ‘serious unease’ another might see as the ordinary noise of a protest. This vagueness vests considerable discretion in individual police officers on the ground to decide when a protest has crossed a line. As the Joint Committee on Human Rights (JCHR) noted, this creates uncertainty for protestors and risks inconsistent application, potentially leading to the curtailment of protests that are merely loud and passionate, rather than genuinely threatening (JCHR, 2021).
Furthermore, the PCSC Act 2022 amended the 1986 Act to clarify that ‘serious disruption to the life of the community’ can now include situations where a protest causes a ‘more than minor’ hindrance to a person’s day-to-day activities (PCSC Act 2022, s.78). Lowering the threshold from ‘serious’ to ‘more than minor’ is a substantial change. Almost any effective protest in a public space is likely to cause a level of disruption that is more than minor. This change appears to fundamentally misunderstand the nature of protest, which often seeks to gain attention precisely by causing inconvenience. By reducing the trigger for police intervention to such a low level, the law risks authorising police to shut down protests before they have had any meaningful opportunity to express their message.
New Protest-Specific Offences
The POA 2023 went further by creating a series of new criminal offences targeting specific protest tactics. These include offences of ‘locking-on’ or being equipped to lock-on (POA 2023, s.1), obstructing major transport works (s.6), and interfering with key national infrastructure (s.7). While these measures are presented as targeted responses to specific tactics, their effect is to criminalise a wide range of non-violent civil disobedience. The offence of being ‘equipped for locking on’, for example, could potentially criminalise someone for carrying everyday items like bicycle locks or glue if a police officer believes they intend to use them in a protest. This creates a risk of innocent individuals being caught by broad legislative provisions.
The criminalisation of these acts, which previously might have been dealt with under lower-level offences like obstruction of the highway, now carries significant penalties, including imprisonment. This escalation arguably serves more as a deterrent to discourage people from participating in certain forms of protest than as a proportionate response to the harm caused. A fair balance requires a nuanced approach, yet these offences apply a blanket criminalisation to a method of protest, regardless of the specific context or level of disruption.
Pre-emptive and Preventative Measures
Perhaps the most troubling aspect of the new legislation is its move towards pre-emptive measures that restrict individuals’ rights before any offence has been committed. The most prominent example is the introduction of Serious Disruption Prevention Orders (SDPOs) in the POA 2023 (ss.20-33). These are civil orders that can be placed on an individual who has, on at least two occasions in the last five years, been convicted of a protest-related offence or breached a protest-related injunction. An SDPO can impose wide-ranging prohibitions and requirements, including forcing a person to wear an electronic tag, banning them from a particular area, or even restricting their use of the internet to encourage protest. These orders can last for up to two years.
SDPOs represent a radical departure from established legal principles. They effectively punish individuals not for what they have done, but for what they might do in the future. The human rights organisation Liberty described them as “protest banning orders” that treat protestors like serious criminals (Liberty, 2023). By placing individuals under police supervision and restricting their liberty based on past activity, SDPOs risk creating a class of people who are effectively barred from exercising their democratic right to protest. This is a disproportionate and illiberal measure that sits uneasily with the presumption of innocence and the fundamental right to liberty.
Similarly, the POA 2023 gives police new suspicionless stop and search powers to look for items intended for use in connection with certain protest-related offences (s.11). This allows police to stop and search people within a designated area without needing to have any reasonable grounds for suspicion. This mirrors existing controversial powers used in the context of terrorism and knife crime, and its application to protest is a worrying development. Such powers are known to be used disproportionately against certain communities and their extension into the protest context further erodes trust and risks alienating protestors, making peaceful management of demonstrations more difficult.
Conclusion
The government’s justification for expanding police powers was to rebalance the law to protect the public from unacceptable disruption. While the right to protest is not a right to cause unlimited chaos, the legislative response contained in the PCSC Act 2022 and the Public Order Act 2023 has failed to strike a fair and proportionate balance. The new laws have lowered the threshold for police intervention to a point where almost any effective protest could be deemed illegal. They have introduced vague and subjective language that grants excessive discretion to law enforcement, creating uncertainty and a risk of arbitrary application. Most significantly, through measures like SDPOs and suspicionless stop and search, the state has equipped itself with pre-emptive tools that are fundamentally at odds with the principles of a free and democratic society. Instead of carefully targeting serious criminality, this legislation appears designed to deter and suppress peaceful, albeit disruptive, forms of protest. In doing so, it prioritises public convenience over fundamental rights, threatening to have a profound chilling effect on freedom of expression and assembly for everyone and ultimately failing the crucial test of proportionality.
References
Cases
- DPP v Ziegler [2021] UKSC 23
- Handyside v United Kingdom (1976) 1 EHRR 737
- Redmond-Bate v DPP [1999] EWHC Admin 733
Legislation
- Human Rights Act 1998
- Police, Crime, Sentencing and Courts Act 2022
- Public Order Act 1986
- Public Order Act 2023
Official Publications
- Home Office. (2021) Police, Crime, Sentencing and Courts Bill 2021: overarching documents. [Online] Available at: https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-overarching-documents (Accessed: 15 May 2024).
- Home Office. (2022) Public Order Bill: factsheet. [Online] Available at: https://www.gov.uk/government/publications/public-order-bill-overarching-documents/public-order-bill-factsheet (Accessed: 15 May 2024).
- Joint Committee on Human Rights. (2021) Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order). HL Paper 279 / HC 1311. The Stationery Office.
Other Sources
- Liberty. (2023) Public Order Act 2023. [Online] Available at: https://www.libertyhumanrights.org.uk/issue/the-public-order-act-2023/ (Accessed: 15 May 2024).
