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There has been a flurry of government legislative initiatives relating to protest in recent years, in large part in response to the ballooning levels of activism over the climate emergency. Advocacy groups such as Liberty describe these measures as an attack that is of concern to anyone who wants their voice heard on issues ranging from the cost of living crisis and job security to racial and climate injustice.

Do we have a right to protest?

There is no specific right in law for peaceful protest but it is enshrined in the rights of freedom of expression and freedom of assembly, which are protected respectively under articles 10 and 11 of the European convention on human rights, incorporated into domestic British law by the 1998 Human Rights Act. Limitations to the right to protest in England and Wales are set out in the Public Order Act 1986 including conditions that could be imposed on a protest in the interests of avoiding serious public disorder.

What has happened in recent years?

The Police, Crime, Sentencing and Courts Act (PCSC) passed in 2022, enabling the police to impose new conditions on a protest beyond its location, timing and the numbers involved, as laid out in the 1986 Public Order Act. An unjustifiably noisy protest that causes harm to others may now be shut down. People taking part in a protest no longer have the defence of being ignorant of the conditions that have been imposed upon a protest. The maximum prison sentence for someone who has damaged a statue has been raised to 10 years. A new statutory offence of “intentionally or recklessly causing public nuisance”, which previously existed, in common law was introduced. It also carries a sentence up to 10 years in prison.

Was there any opposition?

The government was blocked by the House of Lords in its attempts to introduce three other powers. The first was a new serious disruption prevention order that could be imposed on a person who has taken part in two or more protests in a five-year period and has a conviction for a second protest-related offence or found in contempt of court for a protest-related breach of an injunction. The Lords also blocked new powers to stop and search people in specific locations if they are suspected of having prohibited items. It also introduced offences relating to going equipped to “lock on”, interference with key national infrastructure and obstruction of major transport works.

The government reintroduced different forms of all of these measures in a new Public Order Act as well as other new offences related to making and being in a tunnel over concerns relating to protests around the construction works of HS2. The act also included new powers for a secretary of state to impose an injunction to stop protesters from protesting in a particular area.

The government’s plans to lower the threshold for putting conditions on a protest from the current one of “serious disruption” to “more than minor” disruption on people’s daily lives was voted out of the Public Order Act. But the government then successfully reintroduced the new lower threshold via a statutory instrument, which the Lords does not traditionally vote down, giving the police what Liberty describes as “almost unlimited” powers to shut down protests due to the vagueness of the new language.

In a report published on 11 May, the House of Lords secondary legislation scrutiny committee wrote: “The Home Office has not provided any reasons for bringing the measures back in the form of secondary legislation, which is subject to less scrutiny, so soon after they were rejected in primary legislation. We are not aware of any examples of this approach being taken in the past.”

What’s coming next?

Downing Street has briefed that the government will stop people from climbing on statues, scaffolding and bus stops during protests and to tighten the law around fireworks, smoke bombs and flares. Much of this is already covered by current legislation.

The threshold at which the home secretary can ban marches and protests due to safety concerns will also be lowered, it has suggested, and it is said that the law on glorifying proscribed terrorist groups, such as Hamas will be tightened.

The most controversial of these measures would be lowering the threshold for banning a march that poses an existential risk to the right of assembly and prohibiting the glorification of terrorism, which could lead to the unintended consequence of criminalising “supporters of the suffragettes, Nelson Mandela, or even the crowd at Murrayfield belting out ‘Flower of Scotland’”, according to former independent reviewer of terror legislation, David Anderson.

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