Introduction
The right to peaceful 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 United Kingdom, this right is not codified in a single constitutional document but is instead protected through a combination of common law principles and human rights legislation. However, the exercise of this right has always existed in tension with the state’s duty to maintain public order. This essay will argue that while some level of restriction on protest is legally permissible and necessary, recent legislation enacted by the UK government, particularly the Police, Crime, Sentencing and Courts Act 2022, has significantly expanded police powers in a manner that arguably creates a disproportionate and chilling effect on the freedom of peaceful assembly. This shift in the legal landscape raises serious questions about whether the government's actions constitute an unjustifiable violation of a fundamental constitutional freedom.
The Constitutional Basis of the Right to Protest
The right to peaceful protest in England and Wales is anchored in both the common law and the Human Rights Act 1998 (HRA 1998). Historically, the common law has recognised a ‘negative liberty’ to protest, meaning individuals are free to assemble and express their views so long as they do not break any specific law (Dicey, 1915). Classic cases such as Beatty v Gillbanks (1882) established that a peaceful assembly could not be lawfully prohibited simply because it might provoke others to act unlawfully. The House of Lords later affirmed in DPP v Jones (Margaret) (1999) that the public highway is a public place where all reasonable activities, including peaceful protest, are permissible, provided they do not amount to a public nuisance or an unreasonable obstruction.
The HRA 1998 gave further effect to the European Convention on Human Rights (ECHR), which provides a more explicit, positive protection for protest rights. Article 10 protects the freedom of expression, and Article 11 protects the freedom of peaceful assembly. The European Court of Human Rights (ECtHR) has consistently described these rights as being fundamental to a democratic society (Plattform "Ärzte für das Leben" v Austria (1988)). However, these rights are qualified, not absolute. Articles 10(2) and 11(2) permit the state to impose restrictions that are "prescribed by law" and are "necessary in a democratic society" for legitimate aims, including "the prevention of disorder or crime" and "the protection of the rights and freedoms of others". The key test is one of proportionality: any interference with the right must be no more than is necessary to achieve a legitimate aim.
The Pre-Existing Statutory Framework for Policing Protests
Before the recent legislative changes, the primary statute governing the policing of protests was the Public Order Act 1986 (POA 1986). This Act granted police significant powers to manage public assemblies and processions. Under section 12, a senior police officer can impose conditions on a public procession if they reasonably believe it may result in "serious public disorder, serious damage to property or serious disruption to the life of the community". Similarly, section 14 allows for conditions to be imposed on public assemblies (static protests) on the same grounds.
These powers provided police with a framework to balance the right to protest against the need to maintain order. For instance, police could redirect a march or limit the duration of a demonstration. However, the threshold for imposing conditions was high, requiring a risk of ‘serious’ disruption. This framework was scrutinised by the courts to ensure compliance with the HRA 1998. In DPP v Ziegler (2021), the Supreme Court confirmed that when considering an offence like wilful obstruction of the highway during a protest, courts must conduct a proportionality assessment to determine if a conviction would be a disproportionate interference with the defendant's Article 10 and 11 rights. This judgment underlined that a degree of disruption is an expected and legitimate part of peaceful protest.
Recent Legislation and the Expansion of State Power
The government argued that the powers in the POA 1986 were insufficient to deal with the highly disruptive tactics employed by modern protest movements such as Extinction Rebellion and Insulate Britain. In response, Parliament passed the Police, Crime, Sentencing and Courts Act 2022 (PCSC Act 2022), which significantly amended the POA 1986 and created new offences.
One of the most controversial changes was the introduction of noise-based triggers for imposing conditions on protests. The PCSC Act 2022 allows police to impose conditions on a protest if the noise it generates may result in "a significant impact on persons in the vicinity" or disrupt the activities of an organisation. The term ‘significant impact’ is broad and could be interpreted to include annoyance or unease, lowering the threshold for police intervention from ‘serious disruption’ to something much less tangible.
Furthermore, the Act created a new statutory offence of public nuisance, replacing the common law offence. The new offence, under section 78, criminalises intentionally or recklessly causing "serious harm" to the public, which is defined to include causing "serious annoyance, serious inconvenience or serious loss of amenity". Critics argue that these terms are vague and could criminalise a wide range of protest activities that were not previously unlawful (Joint Committee on Human Rights, 2021). The penalties are also severe, with a maximum sentence of 10 years' imprisonment.
Building on this, the Public Order Act 2023 introduced further measures, including protest-specific offences such as ‘locking-on’ (s.1) and new powers for police to stop and search individuals for items intended for use in protest-related offences. It also introduced ‘protest banning orders’, which can prevent individuals with a history of protest-related convictions from attending demonstrations.
Assessing the Violation of Constitutional Freedom
The cumulative effect of this new legislation is a significant shift in the balance between the right to protest and the maintenance of public order, a shift that arguably violates constitutional freedoms. The central criticism is that the new powers are overly broad and lack legal certainty. Vague terminology like "significant impact" and "serious annoyance" grants police extensive discretion to decide when a protest crosses a legal line. This creates a risk of inconsistent and arbitrary application of the law, which is contrary to the rule of law principle that laws should be clear and predictable (Ewing, 2022).
This legal uncertainty can create a ‘chilling effect’ on free expression and assembly. Potential protestors, particularly those from marginalised groups, may be deterred from exercising their rights for fear of falling foul of broadly defined laws and facing severe penalties (Liberty, 2021). Protest is often intended to be disruptive and to capture public attention; indeed, the ECtHR has recognised that "any demonstration in a public place may cause a certain level of disruption to ordinary life" (Kuznetsov v Russia (2007)). By giving police the power to restrict protests based on noise or inconvenience, the legislation appears to attack the very essence of what makes a protest effective.
The government defends these measures as necessary to protect the rights of the public to go about their daily lives without undue interference. It argues that the rights of protestors do not trump the rights of the community. While this is a legitimate consideration, the principle of proportionality requires that any restriction on a fundamental right must be the least intrusive means of achieving the objective. Critics argue that the sweeping powers in the PCSC Act 2022 and Public Order Act 2023 go far beyond what is necessary and proportionate, providing a toolkit to suppress legitimate, peaceful dissent rather than simply managing disorder (Joint Committee on Human Rights, 2021).
Conclusion
In conclusion, the right to peaceful protest is a fundamental constitutional freedom in the UK, protected by a delicate balance of common law, statute, and human rights principles. While this right has never been absolute, the traditional legal framework sought to ensure that any restrictions were based on a high threshold of ‘serious’ disruption and were proportionate to the aim of preventing disorder. The recent legislative agenda, driven by the PCSC Act 2022 and the Public Order Act 2023, has substantially altered this balance. By introducing vague concepts like noise-based disruption and ‘serious annoyance’ as grounds for police intervention and criminal sanction, the government has equipped the state with powers that risk being used to silence dissent and deter peaceful assembly. Although intended to protect the public from disruptive protest tactics, the breadth and uncertainty of these new laws represent a significant encroachment on freedom of expression and assembly, lending weight to the claim that the government is engaged in a violation of a core constitutional freedom.
References
Cases
- Beatty v Gillbanks (1882) 9 QBD 308
- DPP v Jones (Margaret) [1999] 2 AC 240
- DPP v Ziegler [2021] UKSC 23
- Kuznetsov v Russia (2008) 47 EHRR 41
- Plattform "Ärzte für das Leben" v Austria (1988) 13 EHRR 204
Legislation
- Human Rights Act 1998
- Police, Crime, Sentencing and Courts Act 2022
- Public Order Act 1986
- Public Order Act 2023
Secondary Sources
- Dicey, A.V. (1915) Introduction to the Study of the Law of the Constitution. 8th edn. Macmillan.
- Ewing, K.D. (2022) 'The Restoration of Order: The Police, Crime, Sentencing and Courts Act 2022'. King's Law Journal, 33(3), pp. 493-510.
- Joint Committee on Human Rights (2021) Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order). HL Paper 20, HC 224. The Stationery Office.
- Liberty (2021) Liberty’s briefing on the Police, Crime, Sentencing and Courts Bill for House of Lords Second Reading. Liberty.
