Prof Tom Lewis-NLS Director of Centre for Rights and Justice
From the Peasants’ Revolt of 1381, through the Levellers of the 17th century, the Chartists of the 19th and the Suffragettes of the 20th, public protest and dissent has been a vital part of Britain’s rich history. Indeed, the freedom to get together with others and publicly demonstrate about matters we feel to be important is, many would argue, just as much part of Britishness as is the notion of constitutional monarchy itself. Moreover, in recent decades it has come to be accepted as a vital and necessary part of modern democratic society, with states that clamp down on peaceful public protest, such as Russia or China, rightly being castigated by UK politicians.
But the arrests of protestors from the campaign group Republic on the day of the coronation of King Charles III demonstrates the fragility of this important freedom. The provisions of the Public Order Act 2023 (POA ‘23), which received Royal Assent on 2nd May – just three days before coronation – arguably constitute a serious threat to the right to freedom of peaceful assembly.
On coronation day six Republic protestors were arrested in Trafalgar Square and detained for periods of up to 16 hours before being released without charge. Reportedly they were arrested for the new offence of ‘being equipped for locking on’, introduced by section 2 of the POA ’23. The primary offence of ‘locking on’ itself is also new, introduced by section 1 of the POA ‘23. It is committed where a person attaches themselves to land or another person with the intention of causing ‘serious disruption’ or is reckless as to whether such disruption is caused. In addition, the POA ‘23 confers greater powers on the police to stop and search people for items that may be used for locking on. Thus section 10 amends the stop and search power under section 1 of the Police and Criminal Evidence Act 1984 to include a power to search on reasonable suspicion that a person is carrying locking on equipment; and section 11 provides a power to search for locking on equipment ‘without suspicion’ where the necessary authorisation has been provided by an office of inspector rank or higher. (It is noteworthy that prior to this Act such suspicion-less powers were reserved for cases of ‘serious violence’ under section 60 of the Criminal Justice and Public Order Act 1994. The POA ’23 provisions therefore represent a significant lowering of the harm threshold in this regard.)
These new offences and powers were brought in specifically to help prevent major disruption to major travel networks and the like, by the well-publicised actions of groups such as Just Stop Oil, Extinction Rebellion and Insulate Britain. But they are extremely broad. They could certainly cover, for example, a cyclist with a bike lock, a mountaineering enthusiast carrying climbing gear, or – as in the case of the Republic protestors – those in possession of suitcase straps being used to hold together protest-placards in preparation for a lawful demonstration.
The locking on provisions are part of a raft – some might say an entire cargo ship-full – of other limitations on peaceful protest introduced by the POA ‘23 and its immediate predecessor, the Police, Crime, Sentencing and Courts Act 2022 (PCSCA) which have undeniably restricted the freedom of peaceful protest. These measures include: new offences related to the causing of serious disruption by tunnelling (sections 3, 4, 5 POA ‘23); increased police powers to impose restrictions on noisy processions and assemblies (sections 73, 74 and 75 PCSCA which amend sections 12 and 14 of the Public Order Act 1986); limitations on ‘one-person protests’ (section 79 PCSCA); and the creation of a statutory offence of public nuisance (PCSCA s. 78).
After a huge amount of public and press disquiet at the police’s use of their new POA ’23 powers the Met expressed ‘regret’ for the Republic coronation-day arrests and detentions. This, however, will be cold comfort to those who were denied their democratic rights to protest about an issue they felt to be of great importance, instead spending the day in a police cell; still less will it be enough to prevent legal challenge under the UK’s Human Rights Act for what, on the face of it, appear to be violations of the right to freedom of expression (Article 10 of the European Convention on Human Rights) the right of peaceful assembly (Article 11) , and the right not to be subjected to arbitrary detention (article 5).
It is perhaps ironic that the coronation arrests actually increased the profile of the protestors’ cause, affording them far more media coverage than they would otherwise have received. Indeed, the campaign group Republic has reportedly received a huge boost to its membership in the days since the coronation. But it is surely only because of the high profile of the coronation itself, with the world’s media watching, that these arrests have been so remarked upon. These offences and powers now exist in the world, as statute law. The chilling thought is that they will continue to be used by the police, across the land, in situations where there exists far less public scrutiny. This is surely a worrying development for our democracy. It is to be hoped that the courts, in due course, subject these offences and powers to close review in line with our long and venerable tradition of civil liberties and human rights.
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