Concerns raised over changes to public order legislation
A leading human rights barrister has said that changes to public order legislation due to be voted on in the House of Lords this week (Tuesday 13 June) could give police “a far wider, nearing total discretion” as to which protests are made subject to restrictions.
Adam Wagner, of Doughty Street Chambers, was commissioned by Friends of the Earth to give his expert legal opinion on the extent to which the proposed changes to the Public Order Act 1986 would reduce the threshold at which police officers could impose conditions on protest marches and assemblies.
“The threshold would be so low that it could lead to police imposing conditions on protests which would breach the rights of protesters,” his opinion says.
He also states: “The lower threshold, and the unclear terms used in the regulations, would also likely lead to a chilling effect on people who want to attend protests.”
Mr Wagner says that it is his view that a peaceful protest act as typical as a march attended by hundreds or more people, in which roads are closed for it to take place, would “undoubtedly” be considered ‘serious disruption’ within the meaning of the proposed changes. Given the changes brought in by the Police Crime Sentencing and Courts Act 2022, protesters could be prosecuted for breaching any restrictions, even if they didn’t know about them, he says.
The broad and ambiguous nature of how ‘serious disruption to life in the community’ is defined – the threshold at which police can exercise powers to limit protests – would create uncertainty and could allow restrictions on practically any type of protest, other than those in places where there are few or no passers-by, he says. But when the democratic right to assembly is about being seen and heard, as Mr Wagner states: “Would anyone want to organise such a protest if it was not going to be seen by passers-by?”
He also concludes that the regulations would make it harder for campaigning organisations, like Friends of the Earth, to issue guidance to their network of grassroots campaigners on whether protest activities are likely to face restrictions imposed by the police because they ‘may’ meet the threshold for ‘serious disruption’.
The controversial change to the Public Order Act 1986 using secondary legislation is the latest attempt by the government to restrict the right to protest and freedom of speech, following two highly contested new laws in two years, that have transformed the framework of public order legislation.
More than 45 civil society organisations, including Amnesty International UK, The Women’s Institute and Liberty, have written to peers asking them to support a fatal motion tabled by Baroness Jenny Jones not to approve the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, when it is debated on by peers on Tuesday 13 June.
It comes after the same measure was rejected by peers as an amendment to the recent Public Order Act 2023. This has raised concerns about the constitutional implications of the government’s unprecedented use of secondary legislation – a mechanism used to make changes to primary legislation already enshrined in law – to revive measures only recently rejected by parliament during the passage of the Public Order Act 2023.
Dave Timms, head of political affairs at Friends of the Earth, said:
“The government is undermining both parliament and the rights of us all, with this extreme new measure. Organisations like Friends of the Earth that want to organise peaceful, lawful protests will find it difficult to assure supporters and the public that almost any given protest won’t be subject to police conditions about when, where and how it can take place. This puts those wanting to exercise their democratic right to assemble and be heard at greater risk of arrest and prosecution for breaching police conditions – even those they don’t know about.
“Clearly, this will make it far harder to organise protests and risks deterring people from attending. It’s another threat to our democracy that comes on top of the recent introduction of police powers to stop and search protesters, arrest them for carrying household objects and restrictions on noisy demonstrations. The space for the public to protest confidently and loudly about the issues that matter to them is being restricted to a frightening degree - and we urge peers to block these measures.”
Mr Wagner’s legal opinion in full is available on request. His advice includes the summary below:
In summary, my advice is:
(a) The Regulations would significantly lower the threshold for serious disruption to the life of the community, currently defined (though not exhaustively) as requiring disruption to be “significant” or “prolonged”. Police would be able to impose conditions where they have a reasonable belief that a protest “may” cause a “more than minor” disruption to day-to-day activities. A number of other changes, such as police being able to take into account disruption from unconnected protests in the same area, would further lower the threshold. The result would be that police could impose conditions on a far wider range of processions and assemblies than is currently the case under sections 12 and 14 of the POA 1986. In my view, this could give the police a far wider, nearing total, discretion as to which processions or assemblies could be made subject to conditions;
(b) The lower threshold would have serious implications for the right to freedom of speech and protest as is protected by Articles 10 and 11 of the European Convention on Human Rights and the Human Rights Act 1998 (‘HRA’). The threshold would be so low that it could lead to police imposing conditions on protests which would breach the rights of protesters.. Although such conditions can in theory be challenged in advance by judicial review, including on human rights grounds, the reality is that this is well beyond the reach of most protesters as they may lack the time, experience and capacity, it is very costly and such challenges do not generally attract legal aid. This leaves individuals who want to protest with the choice of simply acquiescing to the conditions restricting their protest or risk arrest, detention and prosecution for breaching them, and hoping to successfully defend any prosecution at trial;
(c) The lower threshold, and the unclear terms used in the Regulations, would also likely to lead to a chilling effect on people who want to attend protests. This is because people who are deciding whether to organise or attend a protest would not be able to predict with sufficient certainty whether the police are likely to impose conditions, and whether they may be prosecuted for breaching conditions. Those who breach conditions can be fined up to £2,500 if they participated and imprisoned for up to 51 weeks if they organised the procession or assembly, and it is possible to be prosecuted even if an individual did not know, but ought to have known, about the conditions;
(d) There is a reasonable argument that the Regulations would be unlawful as they do not comply with the Home Secretary’s duty to carry out an adequate consultation. This is because only a very limited number of authorities were consulted by the Government, and it appears no groups or individuals who would be impacted by the restrictions on the right to protest were consulted.