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The
Public Order Bill is a staggering attack on the right to protest. Currently undergoing its passage through the House of Lords, the bill contains measures that were originally thrown out of the Police, Crime, Sentencing and Courts Act 2022, leading
campaigners to call it a ‘
zombie’ piece of legislation.
Even His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), the Home Office and the police have
rejected measures in the bill – in particular, serious disruption prevention orders (SDPOs) – for being incompatible with human rights and unworkable, with
former senior police advisers warning that it risks further eroding public trust. The
director of public prosecutions has also said that the authorities do not need more powers and have sufficient legal tools to deal with protest.
Shortly before the Public Order Bill’s report stage in the House of Lords, the government tabled amendments to define serious disruption in relation to specified new offences, limit the defence of reasonable excuse, and create new and expansive triggers with extremely low thresholds for the police to impose conditions on protests. Together, they constitute
a drastic, further expansion of police powers to restrict the right to protest, while also exacerbating legal uncertainty. The addition of these controversial amendments at such a late stage in the passage of the bill raises concerns as to whether their impact can be robustly scrutinised.
Serious disruption prevention orders
The Public Order Bill introduces a draconian new civil order – the SDPO – that can be imposed on individuals who have either committed a ‘protest-related offence’ or protest-related breach of an injunction, or who have participated in two protest-related activities over the past five years (even if they have never been convicted of a crime).
SDPOs are effectively protest banning orders, which could see individuals barred from participating in demonstrations, and prohibited from associating with certain people at certain times in certain places and even using the internet in certain ways. Those subject to an SDPO could also be subject to an electronic monitoring requirement, including 24/7 GPS tagging. Breach of an SDPO will be a criminal offence that could result in a maximum of 51 weeks’ imprisonment, a fine or both.
Both in terms of whom they could apply to and their content, SDPOs are extraordinarily broad. For example, an SDPO made otherwise than on conviction can be imposed on someone who has merely ‘contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption’. SDPOs also have minimal safeguards – for example, although they have a two-year time limit, they can be renewed indefinitely.
It is difficult to imagine a situation where someone’s actions would not somehow fall within the conditions under which they could be given an SDPO, whether that is purchasing a bike lock, holding a banner or even sharing a social media post online. SDPOs effectively place any activist, commentator, political organiser or trade union representative at risk of having their rights curtailed.
Stop and search powers
Another way that the Public Order Bill threatens the right to protest is through its expansion of stop and search powers. In particular, it proposes to amend Police and Criminal Evidence Act 1984 s1 to expand the type of offences that allow a police officer to stop and search a person or vehicle to include protest offences. In addition, the bill creates a new power giving senior police officers the ability to authorise suspicionless stops and searches for a particular time period and in a specified locality, if they believe that a protest offence might be committed or people are carrying ‘prohibited objects’ – in effect, any objects related to a protest.
Expanding stop and search to the protest context is a gross expansion of police powers, and risks infringing on individuals’ rights to freedom of expression and assembly and to privacy. Crucially, campaigners have warned that these powers will further entrench racism in the criminal justice system, with Black people already
six times more likely than white people to be stopped under existing powers and to face the traumatic consequences of such interactions with the police.
Protest-specific stop and search is likely to create a chilling effect for racialised, marginalised and minoritised people, who may be deterred from exercising their fundamental rights for fear of being targeted and harassed.
Criminalising direct action
The Public Order Bill creates a slate of new protest offences, including: locking on and being equipped to lock on; causing serious disruption by tunnelling, being present in a tunnel, and being equipped for tunnelling; obstructing major transport works; and interfering with key national infrastructure. Targeting climate justice activists’ direct action tactics, these offences will make it harder for people to protest at sites of power while also widening the criminal dragnet.
In addition, the bill gives the secretary of state the power to bring themselves into proceedings for civil injunctions – a measure already increasingly used by private entities to crack down on protest – and to apply to the court to attach a power of arrest and remand to such injunctions.
Conclusion
Whether on the streets, at the picket lines, at the ballot box or in the courts, the government is clamping down on the ways people make their voices heard. This will only lead people to take more urgent routes to demand change. We must stand firm and defend the right to protest, and do what we can do
equip our communities with the knowledge to exercise our rights safely.