AND WHY SHOULD WE PERMIT YOU TO PROTEST?

Speech is the paradigmatic liberty; it is the fountainhead of all freedom. Without an unfettered interchange of ideas, where each individual can criticise – whether in tempered or vituperative terms – existing policies, social mores, religious dogmas or the functioning of the organs of government, without legal sanction, there can be no real claim to living in a free state. In recent years, much of the unsettling encroachment on free thought has taken place in the extra-legal arena: the fear of social ostracism and financial ruin dangled over us by the phenomenon of “cancel culture.” Say the “wrong” thing at the “wrong” time – even innocently – and you might lose your job, and have hordes of online trolls harass and threaten you. This problem of a social intolerance to diverse opinions, and the blacklisting of entire topics from healthy conversation (eg, the definition of gender/sex and its widespread implications), is infelicitous to the functioning of any healthy society. 

Notwithstanding, the original, and gravest threat to free expression is the government. An individual unfairly dismissed or shunned by certain employers/organisations, at least has a fighting chance to seek more hospitable shelter elsewhere. That is never the case, when the government uses its monopolistic power on force to deprive liberty or property via the law. If the state criminalises certain expression, or exposes it to civil liability, there is no opting out; there is no negotiated settlement. You, and I, face jail time or ruinous damages for seeking to express a viewpoint on certain issues of public concern that may transgress the mercurial boundaries of a speech offence. 

This brings us to the recently passed Public Order Act of 2023, which, conveniently, received Royal Assent, four days prior to the Coronation of King Charles III. This farcically overbroad statute, comes on the heels of powers handed to the police last year, to scuttle “noisy protests” that may cause “intimidation/harassment/alarm/distress” to the public. Supposedly, silent protests that do not “distress” anyone may still go ahead (unless the police incorrectly adjudge in advance that they may not be silent enough). Make no mistake, the police were in no short supply of capacious powers to break-up protests, even before the last blitz of authoritarian retrenchment by this Conservative Government. The bread and butter for management of protests can be found in Sections 4-5 and 11-14 of the Public Order Act 1986.

The Public Order Act of 2023 enables the police to throw the whole kitchen sink at protesters. We were told that a flurry of new offences were necessary to address the exigent threat of massively disruptive actions by groups such as Extinction Rebellion and Just Stop Oil. This was always a red herring, because there were already adequate legal powers to deal with such criminal activity (eg, the common law offence of public nuisance; s137, Highways Act 1980). Unfortunately, there was no appeasing the anti-democratic proclivities of this Tory Government, not without further eviscerating the bedrock liberty of peaceful protest. 

POA 2023 did not introduce carefully delineated offences to target a disruptive minority; it engrafted into the statute books, a flurry of restrictions and preemptive police powers, that threaten the rights of all. The law’s operation and sweep casts a chilling effect on free expression; it is an affront to any nation that calls itself a liberal democracy. A few examples will suffice to illustrate the deleterious and oppressive effects of the legislation. 

In Section 1, the offence of “locking on” is created, whereby any individual could be subjected to 51 weeks imprisonment and/or an unlimited fine “by attaching themselves, another person or an object to any other person or object or to the land...[thereby] causing or capable of causing serious disruption to two or more individuals, or an organisation.” Would a few environmental protesters linking arms and holding picket signs near the headquarters of Shell, constitute “serious disruption” to “an organisation”? Your guess is as good as mine. The Home Secretary will have the opportunity to adjust the definition of “serious disruption” according to his or her whims. Other preposterous possibilities of s1: “attaching an object to land” could lead to the criminalisation of tethering balloons to the ground, or temporarily affixing picket signs onto a lamppost. 

Sections 10 and 11 create fresh stop-and-search powers for police, to search for and seize contraband, such as locking-on devices. Section 11 permits a police officer above the rank of inspector to authorise stop-and-search of individuals and vehicles, without any suspicion. The availability of any suspicionless stop-and-search powers is not consonant with any state that respects the bodily integrity and security of sovereign individuals. To avail the police with such draconian powers, especially in the sensitive context of free expression, is ham-fisted. The Government’s explanatory notes on the legislation assure us that these powers will be exercised responsibly, and there will be no disproportionate onus on marginalised communities; in other words, “take our word for it; we’ve got this.” These new police powers will enable law enforcement to harass and delay whatever protest movement is deemed too unpopular or annoying, according to the prevailing winds of the day. 

Sections 20-29 create a heretofore unknown restriction on the right to protest. Assuming the establishment of certain preconditions, individuals may now be prohibited – for a period of up to 2 years – from attending protests, visiting certain locations, or communicating with others on the internet in support of a cause. These so-called “serious disruption prevention orders” are tantamount to a mutated prior restraint on the right to protest. The government may now restrict your future exercise of fundamental rights (with the penalty of up to 51 weeks imprisonment), and monitor whom you communicate with and what causes you support on the internet. This arrogation of power from the people is truly breathtaking in its audacity. The closest analogue, for such grossly disproportionate shackles on the freedom of speech, are the dreaded licensing laws of the 17th century, whereby any publisher effectively required a royal preclearance before being legally permitted to circulate any newspaper, book or periodical. Back then, everyone needed permission to publish; today, certain disfavoured and heterodox groups will be hamstrung by the full force of the criminal law, as to where, why and with whom they may protest in the future. 

The hazards unleashed by this law will be felt hard and fast; other areas have received almost no attention, despite being grievously injurious to the right of the people to communicate freely. Section 9, for example, criminalises anyone, within 150 metres of any abortion clinic, from even approaching another person, to hand out a leaflet urging them to reconsider their decision to abort (or even to offer advice on how to deal with any post-abortive depression). 150 metres is substantially longer than an FA-football pitch; to impose criminal penalties on anyone wishing to counsel a woman on her way in or out of an abortion clinic, is egregiously disproportionate. 

The Public Order Act of 2023 (and related provisions in the Police, Crime, Sentencing and Courts Act of 2022) effectively destroy whatever was left of the right of protest in this country. For anyone who still holds on to the “old fashioned” notion that the right to free expression and public assembly is not a gift from the Government onto the governed, this ought to be an occasion for great disquiet.