Retired barrister and rs21 member John Nicholson evaluates the dangerous new measures proposed in the Tories’ Public Order Bill and National Security Bill, outlining the risk to our freedoms and protest rights, and what we should do now.
As the Tories set about piling on yet more punishment – including severe prison sentences – for yet more forms of protest, we need to stand firm, and together. We should learn what the proposed legal changes are, and the available defences if we are arrested. But the real intent of these draconian measures is to deter us from protesting in the first place. If we stop ourselves, in anticipation of arrest and/or charges, we have done their job for them. The only way to preserve the right to protest is to protest.
The Home Secretary and the new proposed restrictions
It was difficult to imagine a Home Secretary more reactionary than Priti Patel, but in Braverman the Tories found one. Sacked by Liz Truss, ostensibly for a security breach but in reality for having embarrassed the government and endangering a trade deal with India, she was promptly reinstated by Rishi Sunak, to widespread surprise – though her return has proved controversial and her position is far from fully secure. She has said that she wants to cut welfare spending to undermine a ‘Benefits Street Culture’ in the UK, and that she had a ‘dream’ and ‘obsession’ of sending off a first plane with deported migrants to Rwanda. She has also claimed that the British establishment is influenced by what she called ‘cultural Marxism’, arguing that: ‘We have culture evolving from the far left which has allowed the snuffing out of freedom of speech, freedom of thought.…’ And yet her proposals would mean the UK leaving one of the main legal safeguards of such freedoms in the European Convention of Human Rights (ECHR).
Articles 10 and 11 of the ECHR protect freedom of expression and assembly, and these are under heavy attack in the two current Bills she will be advancing on Public Order and National Security. The Tories’ aim is to ensure that some people are freer to express their opinions than others, and Braverman’s reinstatement underlines Sunak’s determination to carry on the attack.
The Public Order Bill creates several new criminal offences: locking-on, going equipped to lock on, obstructing major transport works (such as HS2) and interfering with key national infrastructure (airports, railways, printing presses and oil and gas supplies). It extends police stop and search powers, and lets police seize items they think could be used in illegal protests. And it creates Serious Disruption Prevention Orders, which mean that if a court is satisfied, only on a balance of probabilities (a lower threshold than that of ‘reasonable doubt’ generally applicable in criminal matters), that someone has committed a ‘protest-related offence’, they can be prevented from engaging in protest at pain of criminal prosecution. The explanation of a ‘protest-related offence’ is that it is an offence directly related to a protest – hardly clear or specific. Nor are there definitions of ‘directly’ or ‘protest’.
Specific sections of the Public Order Bill deal with locking on, tunnelling, and obstruction of major transport works. The introduction claims that the Bill is a response to protesters’ ‘recent changes in tactics’, necessitating this new legislation. However, there are photographs of suffragists in the early twentieth century ‘locked-on’, and there are photos of tunnellers under proposed airport extensions in the 1990s – nothing ‘recent’ here. The offences would be laughable if they were not so serious in their implications. If the Bill is passed, it will become an offence to attach oneself to a person or object or land, if it causes serious disruption to two or more people. There are also exacerbations of the already misused stop and search powers – explicitly on both suspicion-led and suspicion-less basis – meaning the law will now create more situations in which police do not need to have any suspicion of an offence in order to stop and search people. This, as we know, has particularly dire implications for racialised people.
In some ways, all the latest dregs of the Tory administration are doing is to put back into statute those bits that Priti Patel failed to get into her Police Crime Sentencing and Courts (PCSC) Act earlier this year. Several of the worst of the provisions there concerned criminal and jail sentences for what had previously been straightforward peaceful forms of protest. Obstructing the highway can now, for example, lead to a 51 week term in prison – a sentence which can be imposed by magistrates.
This is about harassment and suppressing dissent
‘The police do not need these extra powers. They already have more than sufficient powers to arrest, detain and prosecute people exercising their right to protest. As with earlier legislation imposed at military and nuclear bases, it will be abused by police to harass protestors and prevent lawful protest, not only through arrest, but through bail conditions restricting freedom of movement.’
And the new laws may not work well in practice. If the police go on to ask the Crown Prosecution Service (CPS) to prosecute offences, many CPS lawyers won’t want to be in front of judges who may say ‘why are you bringing these lengthy public order cases which get acquitted by juries, when we have got ‘real’ crimes of rape and murder delayed and delayed?’ Words to this exact effect have already been used by at least one judge.
Some opponents of these Bills have objected because almost anyone could be arrested, passing by a protest, or otherwise looking suspiciously like they are ‘related’ to the protest. Whilst there are examples of this having happened, the Tories are really after two or three kinds of protester – specifically, those taking direct action around environmental issues and against the arms industry. For some time now, there has been state surveillance of maybe 30 or 40 environmental protesters, who are identified as ‘touring the country’ with their protests – and both this number and the nature of the surveillance has been growing.
It is clear from the statutory explanation of the latest Bills that the Tories want to stem the tide of challenges to climate change, such as XR (Extinction Rebellion), Just Stop Oil, Insulate Britain and the protests against HS2. And economy and environment go hand in hand. The arms industry is seen as an essential part of this country’s (diminishing) economic activity. Under the cloak of security against international terrorism, ordinary peace activists are now facing prosecution for their actions.
So it is very important that we understand the very real threat to those who the Tories have identified as the target protesters, and the way in which the laws aim to deter protest more generally. There will undoubtedly be a continuation of the already-existing ‘divide and rule’ – distinguishing protest based on polite lobbying of parliament and ‘direct action’ in all its forms. One recent judge in a Magistrates Court decided, for example, that a road block by Palestine Action outside the Elbit arms factory in Oldham – for about 3-5 hours – was such a disruption as to outweigh all the other legal defences involved.
The judge contrasted this action with the peaceful protesters of the Oldham Peace and Justice Group – even though the 30 consecutive weekly protests this group held from May 2021 (during the bombing of Gaza) and January 2022 (when Elbit sold up and left) involved the police closing the road, diverting the hourly bus and other traffic, for considerably longer than 3-5 hours with no arrests or charges. It is crucial that protesters do not find ourselves divided in this way. Solidarity is essential between different campaigns if we are to defeat these laws in practice.
Case Law in the Courts?
Both the PCSC Act and any new protest laws will need to be tested in the courts. Judges may interpret new laws so they apply to fewer situations, or may pick really draconian interpretations that criminalise a lot more activities. In the case of Ziegler, the Supreme Court found that protesters against the arms trade had a ‘lawful excuse’ for blocking a road and therefore were not convicted. Effectively, this ruling means that a protest which obstructs road users isn’t automatically a criminal offence – which wouldn’t have been clear from the legislation alone.
Offences which attract shorter prison terms are prosecuted in the magistrates court at the moment, where there is no jury. But a magistrate can’t currently give a sentence of more than 12 months, so the greater sentences available to prosecutors may mean that cases under these new laws have to be heard in the Crown Court instead. Here defendants may go in front of a jury – and it is almost always likely to be better to explain our case to 12 ordinary people. When they hear about weapons of mass destruction being made and sold on their doorsteps, as in the case of weapons manufacturer Elbit, they may just decide that the activists had a good reason and shouldn’t be found guilty. Many climate activists have won in this way, even in objectively adverse cases of disruption.
Therefore, it may be that the most vicious of these laws will rarely be prosecuted, and that instead they will be used on the ground by the police and not pursued to conviction. The rest of the time, authorities will hope that the new measures will simply put protesters off. It is all about deterrence.
As Netpol has rightly said:
‘[It’s] important to remember that protest is still legal. We can, and will, continue taking to the streets. And we can, and will, keep fighting for people and planet. The state will not deter us from action as the cost of living crisis and the climate emergency mean we do not have a choice.”
Our answer to restricting protest must be to go on protesting.
With credit to Kate Bradley for edits and additions.