The right to protest is one of the fundamental symbols of liberty. It is protected in the European Convention of Human Rights under Article 11 and the freedom of assembly, and regardless of cause have the right to protest, march, or demonstrate in a public space.
Article brought to you by Hadaway & Hadaway solicitors in North Shields.
Not only does every individual have this right, but the police have a duty to refrain from restricting this right unnecessarily and an obligation to take measures to protect peaceful protests. Even if they might not agree or if there is some disturbance or offense caused to the general public, they are expected to show a degree of tolerance towards protesters.
Of course these rights are not absolute and may be limited when necessary but only in a proportionate manner. These rights also only extend to public spaces. Restrictions on assembly may also be considered when public health is concerned. Most of the restrictions on violence and harassment are already in Public Order Act 1986.
The UK’s police force and response to protests have long been considered a model in the West for civility and proportionality.
But recently that has been under threat, not from potentially destructive protestors, but their own policymakers.
The much protested Bill
The Police Crime Sentencing and Courts Bill 2019-21 have many good provisions in it, and long overdue amendments to the law to cope with new problems and technologies. However, there have been many criticisms and protests regarding the possible ramifications to policing powers that may restrict people’s right to protest.
Specifically, we are concerned about Part 3 and 4, Public order and unauthorised encampments.
Section 14 of the Public Order Act 1986 allows senior police officers to issue directions to persons taking part in, or planning, a static protest. Whilst the police can impose any condition necessary on a protest march, they can only impose conditions on static protests which specify where a protest can take place, for how long it can last and how many people can be involved.
Senior police officers can only issue a direction on a protest under the Public Order Act 1986 if they “reasonably believe”:
- the protest may result in serious public disorder, serious damage to property or the serious disruption to the life of the community; or
- the purpose of the protest is to intimidate others and compel them “not to do an act they have a right to do, or to do an act they have a right not to do.”
Protestors who do not comply with a police direction are committing an offence. Before arresting somebody for such an offence, the police should inform them they are in breach of the condition and give them an opportunity to follow it. Those convicted of not complying with a condition can be fined or imprisoned.
The changes under the Bill
The following content is taken from the Briefing Paper to the House of Commons. Clauses 54 to 56 and clause 60 would make significant changes to the police powers, contained in the Public Order Act 1986, to respond to protests. The clauses would:
- Significantly lower the legal test that must be met for the police to issue conditions on protests. Under the Bill the police would be able to issue conditions on protests when they are noisy enough to cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders.
- Widen the types of conditions police can issue on static protests to match their powers relating to protest marches. Under the Bill police would be able to issue any condition they think is necessary on static protests to prevent “disorder, damage, disruption, impact or intimidation”.
- Amend the offence of failing to comply with a condition issued by the police on a protest. It would remove the legal test that requires protestors “knowingly” breach a condition to commit an offence. People would commit the amended offence if the disobeyed a condition they ‘ought to have known’ was in force.
- Allow the police to issue conditions on one-person protests. Currently protests must involve at least two people to engage police powers. Taken together the amendments to the 1986 Act would significantly expand the types of protests the police could impose conditions on. They would also widen the types of conditions the police could issue on static protests.
Clause 54 would also give the Secretary of State regulatory powers to further define the meaning of “serious disruption to the activities of an organisation” in the amended section. These regulations would be made using the affirmative procedure.
Clause 55 would amend section 14 of the 1986 Act in the same way as clause 54 amends section 12. This would allow officers to issue conditions on static protests that are noisy enough to cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders.
Clause 55 would also amend section 14 so police can issue any condition they think is necessary on static protests to prevent “disorder, damage, disruption, impact or intimidation”. This would bring the law regarding conditions static protests in line with that on protest marches.
Clause 56 would amend the offence associated with failure to comply with a police condition issued on a protest. It would remove the need to prove a defendant “knowingly” disobeyed a direction. The court would only need to find a defendant failed to be comply with a condition they “ought to have known” had been imposed to find them guilty.
Clause 60 would insert a new a new section 14ZA into the 1986 Act. This would allow the police to impose conditions on a one-person protest which they “reasonably believe” may be noisy enough to cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders. The police would have to follow similar rules when issuing conditions on a one-person protest under section 14ZA as they will have to under the amended section 12 and 14. At present, the police cannot issue conditions on one-person protests because they do not meet the definition of “static protest” provided for in the 1986 Act. Under the 1986 Act “static protests” must involve at least two people.
Hard lessons learned
The Bill gives police a broad latitude in defining what is a disturbance sufficient to cancel the permission to protest or peacefully assemble. To some this brings additional comfort, to others this may be the start of a slippery slope.
An increase in protesting does not automatically mean an increase in unrest. This is like being unable to see the forest for the trees; i.e., being so involved in symptoms to be blind to the condition itself. It is when citizens think that protesting is ineffective that things cease to be fine and start being on fire.
Perhaps some international observers might wonder why the UK is being out of sorts on mild changes and protests that are only minimally disruptive. It may be a bit hypocritical to call on other governments for being high-handed in response to protests (the Hong Kong protests, for example) and then take measure on their own to prevent and penalize protests from happening. It does sound like trying to grant more convenience to police forces than anything to deal with protestors that are a little more than a nuisance to the public.
That is, as long as one does not crack open a history book and read about what happens when both sides are a lot less genteel about things.
A lot of what UK police know are from hard-earned lessons through the long history of unrest and disobedience around the British Isles and through foreign shores. Things were a lot worse, could now be a lot worse, and there have been plenty of hard experience why hard responses don’t work.
As one might say, this is the sort of thing that gets your tea thrown into the harbour and that is just terrible. Nonviolent protest and civil disobedience changed the face of independence and civil rights movements.
Are there not enough policy makers who are old enough to remember the Thatcher years? Things used to be a lot harsher than this. There were riots. There were bombings in the streets. The police and the general public had actual cause to fear for their lives. How then, did all of that just stop?
The freedoms that people enjoy in the new millennium had to be slowly carved out brick by brick, word by word, into law and ethos. Even the Troubles ended with an agreement to commit to “exclusively democratic and peaceful means of resolving differences on political issues”. Laws and policies have slowly accumulated as a response to earlier examples of government power over-reach and give people a way to more meaningfully interact with their government.
Rolling back those protections and institutional principles just to quiet down unruly criticism is also trying to bring back an era that already proved its inability to handle dissent.
Rise of Authoritarian Response
This then begs the question – why is there a response in many democratic countries in the West to take action more characteristic of authoritarian regimes and juntas?
This is ironically because of popular sentiment. Or rather, populism.
People may democratically elect leaders that empower their own views. Populist leaders ride a swell of support into authoritarian rule with wide acclaim as long as their measures hurt those that their constituents dislike. Recent events have proven that many people are willing to sacrifice as long as it means hurting, or even just visibly annoying, their opposing party. There is a culture of distrust for science and progressivism that in itself inevitable as a reactionary force.
Populism is not about the economy. There is a common conception that the poor and the misled tend to vote towards strongmen leaders. Findings show however that the election of populist leaders in what ought to be developed countries are enabled mainly by mid to higher-income demographics.
Populism is neither right nor left, conservative or liberal. What it is, is a foundation of antagonism. It is not the will of the people but the exclusion of a people, and as much as campaign on reducing the limits of government authority then happily campaign for reducing limits and checks on executives that embody their values.
Britain, Germany, France, Sweden, the United States, and other democracies have seen surges of populism. Anti-ethnic change, anti-corporation, rejecting scientific authority, and anti-equality are expressions of a people deeply resentful of a changing world that increasingly dismisses their concerns as irrelevant or regressive. It is a culture war, and where certain progressives use media and thus are distrusted as a blatant weapon in the war, certain conservatives want to use mechanisms of the government as a more real weapon against unwanted change.
Conservatism as a function of a healthy society is about personal achievement and methodical proven growth. That… is no longer the face of conservatism in a social-media enabled world. Hyper-partisanship is the order of the day.
Populism is about the creation of a hyper-reality, a conception of reality that reinforces internalized views and the invalidation of contradiction. Established authorities are rejected as being interested in only furthering their own interests at the expense of the masses.
In certain populist governments that used to enjoy a balance between political parties, having a populist leader in power means being immune to criticism. There comes a refusal to be made to feel guilt, neither to feel shame or to accept being called shameful; the mass media and cancel culture of their opponents are nothing against the real power to cancel protests, cancel funding to programs, cancel checks and balances, cancel positions and officials.
And then at the same time wonder why it doesn’t work to make their opponents stop and feel afraid.
“We’ve won! Why aren’t you shutting up yet?!” And then increasingly bend towards authoritarian rule to make the noise go away.
This is a pattern that repeats itself among many up and coming dictatorships. Many dictators are welcomed into power, and though they must continually maintain oppression can enjoy a sizable level of support from their people as long as the opposition is kept under heel. Protests are annoying to a democracy but dangerous to a populist government as it exposes how unpopular their policies are.
There is no sympathy for protesters because they have already been invalidated as undesirables. The worse they act, the more people want them to suffer worse penalties. And the more protesters are handled with violence, the more people are inclined to bring weapons into the march and see the police as enemies and their struggle as an existential.
This is not yet the situation in the UK, where such an authoritarian single rule government would be difficult to have again… but there is a significant division in views within the population, to almost as much as 50% as best exemplified by the Brexit vote.
The Police Bill is feared because it can broadly find any excuse to stop protests and curtail free speech. It may be fine now with the police having restraint, but just having those laws in the books can be dangerous in a government with less regard for people’s views.
And then when protests fail to mean something, then violence ensures that the government is paying attention.
On the other hand, giving equal voice to all comers as if their opinions were relevant is how you get racists, anti-scientists, and neo-nazis into power. This is how tyranny starts and democracy dies, as they say, to thunderous applause. People have a right to free expression, but are you actually free if that expression is a desire to destroy your freedoms and rights of being?
This is the Paradox of Tolerance: If you tolerate the intolerant, you find yourself in the end enabling it and allowing it to grow.
Many people see protests before a regime topples and leaders dragged out and hanged and cities burned and looted and fear that it is the cause instead of the symptom.
Authoritarian response is simple and direct.
The problem is that intimidation only works until it doesn’t, and then your stable society erupts into civil war.
Fixing internal problems requires getting two sides to agree to fix their untenable situation without feeling like it is letting the opposition ‘win’. It is outside the means of this essay to posit a solution because each society’s situation is different. However, enabling the power of peaceful discourse and making sure everyone is well-informed about the reality of things is the foundation for a healthy democracy.