Government creating hostile environment for peaceful protest, report finds
17 June 2022
New policing powers risk creating a hostile environment for peaceful protestors, the Joint Committee on Human Rights warns in a report published following legislative scrutiny of the Public Order Bill. Designed to combat disruptive protests, the draft legislation would instead have a ‘chilling effect’ on the right to peaceful protest, putting fundamental democratic rights at risk.
The Government has introduced the Bill to give the police in England and Wales greater powers to deal with protests that are peaceful but disruptive. It adds to changes made to the law on protest by the Police, Crime, Sentencing and Courts Act 2022, which the Committee previously criticised for threatening the right to protest. It includes new criminal offences for ‘locking-on’ or disrupting transport works and national infrastructure, greater powers for stop and search, and would create Serious Disruption Prevention Orders.
The report highlights that the right to freedom of expression and freedom of assembly are protected under Articles 10 and 11 of the European Convention on Human Rights, and urges the Government to revise the Bill to ensure that these rights are respected.
The Committee warns that the definitions of the new offences are broad and imprecise, and would risk encompassing acts of protest protected under human rights law. ‘Locking-on’ could encompass actions as simple as linking arms with another individual and would be met with a prison sentence of up to 51 weeks; obstructing major transport works covers actions that do not and are not intended to cause significant disruption; interfering with key national infrastructure could be committed by interference with infrastructure that is neither key nor national.
As currently written, the draft legislation shifts the burden of proof on to the defendant to prove that their actions were reasonable. The Joint Committee finds that this is an unnecessary interference with the presumption of innocence and the right to fair trial, and should be removed from the Bill.
New stop and search powers would enable police to carry out searches without reasonable suspicion. Such powers have only previously been used in response to serious violence and terrorism, but those in the Bill would leave peaceful protestors at risk of arbitrary, discriminatory and invasive treatment. Serious Disruption Prevention Orders could prevent individuals being able to exercise their rights to protest and represent a disproportionate response to the disruption peaceful protest may cause.
Publishing the report, acting Chair of the Joint Committee on Human Rights Joanna Cherry QC MP said:
“The right to peaceful protest is a cornerstone of a healthy democracy, it should be protected. The law must strike a careful balance between the right to protest and the prevention of disruption to the wider population. This requires a nuanced approach, yet in reaction to what it perceives as overly disruptive protests the Government has decided to take a blunderbuss to the problem.
“Everyone has the right to protest within reasonable limits. The police already have a range of powers to take action against protests that are violent or excessively disruptive. The draft Bill would tip the balance, putting peaceful protestors at risk of being criminalised, leaving people fearful of severe consequences for minor infractions. It lowers the bar for prosecution while significantly ramping up the penalties, putting protected rights at risk.
“We have called on the Government to revise the Bill to ensure that new offences are clearly and precisely defined so that they encompass only truly disruptive offences, and to take the burden of proving reasonable excuse away from the defendant. They must also remove the provisions that allow stop and search without reasonable suspicion and that introduce Serious Disruption Prevention Orders.
“The right to protest is too important to be chipped away at. The Government must revisit this Bill and ensure it fully respects one of our key democratic principles.”
Key findings and recommendations
The Right to Protest
The law must strike a careful balance between the right to protest and prevention of disruption to the wider public and infrastructure. The right to peaceful protest is effectively guaranteed under the Human Rights Act through the right to freedom of expression (Article 10) and freedom of assembly and association (Article 11). However, these are qualified rights and public authorities are justified in limiting these rights in order to prevent crime or disorder and to protect the rights and freedoms of others.
The police already have powers to control protests that seriously disrupt daily life, including where they block roads, damage monument and use intimidation or violence. The Government provided greater powers to restrict protest in the Police, Crime, Sentencing and Courts Act 2022 by allowing restrictions on protests deemed to be noisy.
The report warns that further restrictions proposed in the Public Order Bill would have a chilling effect on the right to peaceful protest in the UK. It would further threaten the careful balance struck between protecting the right to protest and protecting the wider public from disruption.
New criminal offences
The Public Order Bill would create new criminal offences for actions including ‘locking-on’, obstructing major transport works, and interfering with national infrastructure. However, existing legislation already provides the police with adequate powers to take action against violent or disruptive protests. Criminal law already prohibits violent, threatening and abusive behaviour; obstructing a police officer; obstructing the highway; endangering road users; aggravated trespass; criminal damage and public nuisance. The Joint Committee finds that new powers are not necessary.
New offences contained in the Bill are defined too broadly and would risk criminalising peaceful protests that are protected under Articles 10 and 11 of the European Convention on Human Rights. As it is currently drafted, locking-on could encompass two protesters simply joining arms and it is unclear who or what would need to be seriously disrupted to meet the threshold of criminal behaviour. The maximum sentence of 51 weeks in prison would significantly increase the penalty for an offence related to non-violent protest. The Committee is also concerned that the offence places the burden of proof on the defendant, requiring them to demonstrate they had a reasonable excuse, which is likely to be inconsistent with the presumption of innocence and right to a fair trial.
The Committee calls for the definitions of these new offences in law to be refined so it is clear on the precise criminal behaviour it seeks to prohibit. It further calls for the reversal in the burden of proof to be removed from the Bill.
Stop and Search Powers
Expanding stop and search powers to allow searches for articles connected with protest related offences could result in peaceful protestors and members of the public being exposed to intrusive encounters with police with little justification. This could become a barrier to people exercising their right to engage in peaceful protest and its impact should be carefully monitored if implemented.
Clause 7 of the Bill would introduce a new power that would authorise police to stop and search a person or vehicle for a ‘prohibited object’ even if there are not reasonable grounds for suspecting that is the case. The Joint Committee finds that introducing such powers would be highly exceptional and likely result in arbitrary or discriminatory use of stop and search. It calls for the clause to be removed from the Bill.
Serious Disruption Prevention Orders
Serious Disruption Prevention Orders would effectively create an ASBO for problem protestors and would be a disproportionate response to the disruption caused by protest. The police already have powers to impose conditions on protests and arrest those who breach them, and these powers would be greatly expanded by other provisions in the Public Order Bill. Establishing these Orders could amount to a long-term block on an individual legitimately exercising their right to peaceful protest. The Committee therefore urges the Government to remove them from the Bill.