DOI: https://doi.org/10.58248/HS68

Overview

In recent years, there has been significant debate about whether the rights of protestors have been balanced with the rights of the wider public, particularly in the context of environmental protestors targeting major roads, transport networks, and other infrastructure.[1]

In 2021, HM Inspectorate of Constabulary and Fire & Rescue Services recommended reforms to alter the balance between the rights of protestors and the rights of the public. It suggested that policing protests tended to “tip too readily in favour of protestors” when the likely disruption from the protest was not accurately assessed.[2]

The government initiated two major legislative reforms to address these concerns and to provide additional powers to the police to manage largely peaceful but disruptive protests.[3] These were part 3 of the Police, Crime, Sentencing and Courts (PCSC) Act 2022[4] and the Public Order Act 2023.[5] In summary, this combined legislation:

  • established a statutory offence of public nuisance
  • broadened the circumstances under which the police can impose conditions on protests (such as specifying the route and timing of the protest) to include noise that may result in “serious disruption”
  • introduced several new criminal offences, including: ‘locking on’ to cause disruption; causing disruption by ‘tunnelling’; obstructing major transport projects; and interfering with key national infrastructure such as power plants or airports
  • gave police powers to search people at protests suspected of carrying protest-related items without grounds for suspicion
  • introduced the Serious Disruption Prevention Order, a new mechanism for courts to impose restrictions to prevent people convicted of a protest-related offence from engaging in further protests (SN05013)

These measures were controversial and attracted opposition.[6] Campaigners and human rights experts argued that the legislation could constrain peaceful protest.[7] In its pre-legislative scrutiny of the Public Order Act 2023, the Joint Committee on Human Rights stated that the government were introducing “sweeping restrictions on peaceful protest” and warned that the combined measures will likely “have a chilling effect on the right to protest in England and Wales”.[8]

In response, the government argued that existing human rights legislation provides appropriate safeguards, noting that the police and prosecutors are responsible for acting “compatibly with an individual’s Convention rights, including those under Articles 10 and 11” when making any decisions about arrests and charges.[9] In May 2024, Lord Walney, the government’s independent adviser on political violence and disruption, published his review of the area.[10] He highlighted that the combined measures in the two Acts “represent a serious attempt by the government to place greater protections on the democratic process”, while noting “reasonable” concerns about the current balance of the legislation for public order and civil liberties.

Key opportunities/ challenges

In addition to the above legislative reform, there has been significant discussion about how police forces have used the powers available to them to police peaceful but disruptive protests, such as environmental protests.2 Police forces are expected to make operational decisions independently from government and parliament, and therefore are expected to use discretion in applying their protest-related powers (SN05013). For example, the police must meet duties related to maintaining the right to peaceful protest, while also making judgements to consider the rights of others who may be impacted by protests.[11]

In particular, there has been a range of views on use of these powers, in the context of the frequent protests in 2024 concerning the Israel and Hamas conflict:

  • The Home Affairs Select Committee (HASC) found that the police were generally getting the balance right in relation to these protests.[12]
  • By contrast, NetPol, an organisation that monitors the use of police powers, has criticised the excessive use of powers.[13]
  • Lord Walney found that “there is some evidence that police do not make full use of these new powers, while in other cases they may have been misapplied”.10

Lord Walney recommended the government monitor the implementation of the combined measures from the 2022 and 2023 Acts, to “ensure that provisions relating to extreme protests movements are being applied proportionately and effectively”.10 Similarly, HASC has recommended for the Public Order Act 2023 to be subject to post-legislative scrutiny.12

Other stakeholders have expressed concern about increasing constraints applied to protestors. Michel Frost, the UN Special Rapporteur on Environmental Defenders under the Aarhus Convention, expressed concern in 2024 over the use of bail conditions on protestors, including prohibitions on engaging in any protest, or from having contact with others involved in their environmental movement.[14] He has also, alongside other commentators, criticised the length of prison sentences passed to Just Stop Oil protestors in July 2024, in relation to their planned protest action to block the M25 motorway.[15] In August 2024, the protestors started an appeal of their sentences.[16]

The frequent and large-scale nature of protests in the context of the conflict between Israel and Hamas have also had a major impact on the resources of the police, particularly the Metropolitan Police Service (the ‘Met’). In March 2024, HASC found that protests were placing an “unsustainable pressure on policing resources”, with the Met moving officers from other frontline operations and cancelling rest days to resource protest operations.12

This pressure on policing capacity has led to calls for greater powers to impose restrictions on protests before they go ahead. Currently, people must notify the police at least six days in advance of organising a protest march, providing the date, time and route, but HASC has recommended the government consider extending this notice.[17] Lord Walney also highlighted concerns over the impact of frequent large-scale protests, including the reliance on cancelling officers’ rest days and using overtime to resource public order operations.10 His review made several recommendations to mitigate the impact of protests on police resources, including that protest organisers should be required to contribute to policing costs.10 Several MPs criticised measures proposed in the report, suggesting they would unduly infringe on the right to peaceful protest.[18]

Far-right disorder in August 2024 also placed additional pressures on capacity, with public-order trained officers again mobilised to respond to the disorder. Some police forces needed to mobilise additional officers from other forces through mutual aid agreements, in order to police the disorder.[19] The National Police Chiefs’ Council stated that police forces made more than 1000 arrests by 14 August 2024.[20],[21] These cumulative pressures on police resources and public order trained officers led the Police Federation of England and Wales to warn of the future impact of fatigue on officers.[22]

Key uncertainties

In the light of ongoing debates about police powers to respond to protests, the government sought to introduce further protest-related measures through the Criminal Justice Bill 2023-24, including strengthening police powers to ban face coverings at protests and creating offences of climbing on a war memorial and possession of pyrotechnics at protests.[23] The then Home Secretary stated that “recent protests have seen a small minority dedicated to causing damage and intimidating the law-abiding majority” and that “we are giving police the powers to prevent any of this criminality on our streets.”[24] The bill fell at dissolution in June 2024.

Key questions

  • Has legislative change around police powers to manage protests maintained an appropriate balance between the rights of protestors, and the rights of the wider public?
  • How can government and parliament most effectively monitor and scrutinise how well the Public Order Act 2023 and the Police, Crime, Sentencing and Courts Act 2022 are working?
  • Are police using their enhanced powers effectively and appropriately? What are the best arrangements for monitoring this?
  • How can government support police forces to better manage the impact of large and frequent protests on their resources and capacity?

References

[1] For example: BBC News (2020), Extinction Rebellion protesters block newspaper printing presses; BBC News (2021), HS2 protesters dig tunnel to thwart Euston eviction; BBC News (2021), Insulate Britain: Arrests as protesters glue themselves to roads

[2] HM Inspectorate of Constabulary and Fire & Rescue Services (2021). Getting the balance right? An inspection of how effectively the police deal with protests.

[3] Home Office (2021). Government cracking down on highly disruptive protest tactics

[4] Part 3, Police, Crime, Sentencing and Courts Act 2022 legislation.gov.uk

[5] Public Order Act 2023 legislation.gov.uk

[6] These briefings include further information and background on this legislation: House of Commons Library (2021). Police, Crime, Sentencing and Courts Bill 2019-21: Part 3 and 4- Public order and unauthorised encampments; House of Commons Library (2022). Public Order Bill, Bill 008 of 2022-23

[7] The Good Law Project (2021). Police, Crime, Sentencing and Courts Bill – Briefing for MPs

[8] Joint Committee on Human Rights (2022). Legislative Scrutiny: Public Order Bill UK Parliament

[9] Home Office (2022). Legislative Scrutiny: Public Order Bill: Government Response to the Committee’s First Report (PDF) UK Parliament

[10] Lord Walney (2024). Protecting our democracy from coercion

[11] College of Policing and National Police Chiefs’ Council (2023). National protest operational advice

[12] Home Affairs Select Committee (2024). Policing of protests: third report of session 2023-24

[13] Netpol (2024). ‘Racist and Islamophobic’ policing of pro-Palestine protests driven by political and media furore, report finds.

[14] Michel Forst UN Special Rapporteur on Environmental Defenders under the Aarhus Convention (2024). Visit to London, United Kingdom of Great Britain and Northern Ireland, 10-12 January 2024 End of mission statement.

[15] Michel Forst UN Special Rapporteur on Environmental Defenders under the Aarhus Convention (2024). Statement regarding the four-year prison sentence imposed on Mr. Daniel Shaw for his involvement

[16] Plan B, WHOLE TRUTH FIVE LAUNCH APPEAL AGAINST JAIL SENTENCES, accessed 18 September 2024

[17] UK Government. Protests and marches: letting the police know GOV.UK

[18] Hansard (2024).  Political Violence and Disruption: Walney Report. Volume 750, Wednesday 22 May 2024.

[19] Full Fact (2024). UK riots fact checked: latest updates and key questions answered

[20] National Police Chiefs’ Council (2024). “Policing continues to stand strong and unified”

[21] National Police Chiefs’ Council (2024). More than 1,000 arrests made in connection with violent disorder

[22] Yahoo! News (2024). Officers will become ‘fatigued’ amid riots – Police Federation

[23] House of Commons (2024). Criminal Justice Bill, as amended (Amendment paper) Report Stage: Thursday 16 May 2024

[24] Home Office (2024). New protest laws on face coverings and pyrotechnics


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Horizon Scan 2024

Emerging policy issues for the next five years.