Walking a tightrope: policing and legislating public order

It is unsurprising that in a time of extraordinary levels of civil unrest the UK has seen a dramatic increase in large-scale organised protests. The dominant force and constant presence of social media in daily life has meant that the organisation of such protests is easier than ever. With one viral post an organiser can reach millions. There have also been a number of political, moral and environmental causes that are more prominent than ever.

The Public Order Act 2023 (POA) received royal assent on the 2 May, 2023, just days prior to the king’s coronation. The legislation was passed and introduced discreetly with little to no mainstream media coverage. The day of the coronation it is understood that around 64 people were arrested for public order offences.

The POA has re-introduced several powers previously removed from the Police, Crime, Sentencing and Courts Act 2022 (PCSC) during the earlier act’s journey through the parliamentary ping-pong process and marks the second major piece of legislation regarding public order in as many years. The government have stated that the legislation is intended to give police more flexibility and provide legal clarity on when the new powers could be used. However, the legislation has attracted criticism and courted significant controversy since its introduction.

The controversy has only increased with the recent passing of secondary legislation amending the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. The regulations lower the threshold for what kind of protest activity is considered ‘serious disruption’. The regulations have only been passed within days of the writing of this piece, so the full public reaction to this new legislation is yet to be seen, but it is anticipated this will only fuel further denigration of the government’s strategy in legislating this area and may lead to a number of legal challenges.

POA provisions

In October 2022, MPs passed the draft POA Bill by 276 votes to 231. In January 2023, the House of Lords overturned plans to increase police powers to allow them to restrict protests by 254 votes to 240 and added a clause restricting protests within 150 metres of an abortion clinic. In March, the House of Commons upheld the abortion-related provision, on which the Conservative Party permitted a free vote, by 299 votes to 116. Meanwhile, other amendments made by the House of Lords, including those limiting the powers police officers would be granted under the law, were rejected.

Following a prolonged period of parliamentary ping-pong on the above issues, the discord between the two houses was ultimately resolved on 26 April, 2023, when the House of Lords voted viva voce not to insist on amendments the House of Commons disagreed with.

The legislation is an expansive read, but arguably the most significant new provisions are as follows:

• Introducing new criminal offences of locking-on and going equipped to lock-on (Sections 1 and 2)
• Introducing a new offence of obstructing major transport works (Section 6)
• Introducing a new offence of interference with key national infrastructure (Section 7)
• Introducing new offences of causing serious disruption by tunnelling (Section 3)
• Extending stop and search powers for police to search for and seize objects (such as lock-on devices) that may be used in the commission of a protest related offence (Sections 10 and 11)
• Introducing serious disruption prevention orders, a new preventative court order targeting protestors who are determined to repeatedly inflict disruption on the public (Sections 20-29)
• Introducing abortion clinic safe access zones (Section 9)
• Protection of journalists (Section 17)

The POA builds on the public order measures in Part 3 of the PCSC which, amongst other things, update the powers in sections 12 and 14 of the Public Order Act 1986 enabling the police to impose conditions on a protest, provide for a statutory offence of intentionally or recklessly causing public nuisance and increase the maximum penalty for the offence of wilful obstruction of a highway. The POA does not replace the previous pieces of legislation; instead, it bolsters and broadens the existing provisions and provides clarity in areas of uncertainty.

As per the College of Policing guidance, the courts have settled on an approach to assessing the lawfulness, particularly the proportionality, of the state’s interference in citizens’ rights and this remains the case. Police officers are advised to always ensure they are acting in accordance with sections 3 and 6 of the Human Rights Act 1998 (HRA) and to act proportionately at all times. Section 3 requires that any legislation enacted must be read and given effect in a way compatible with convention rights and section 6 requires that the human rights of all those involved be considered. Officers should be aware that this is likely to be the basis for a court’s determination of whether their decisions were in accordance with the ECHR. If police forces follow process and record their reasons for taking action by reference to the same criteria, this will give the best prospect of the action being lawful.

There was a time that this area was in an even greater state of flux, with the former deputy prime minister Dominic Raab’s plans to introduce an overhaul of the HRA by replacing it with a Bill of Rights. However, with Mr Raab’s departure from government it would appear as if these plans have been shelved and the above remains the status quo for the time being.

Recent decisions

Just days before the POA received royal assent the High Court handed down its decision in the case of Director of Public Prosecutions  v Eastburn [2023] EWHC 1063 (Admin).

In this case, the claimant sat down in Parliament Street (adjacent to Parliament Square), where a protest organised by Extinction Rebellion (XR) was happening. Police officers considered that this was unlawful as a direction had been given under section 14 of the 1986 act that the protest had to be confined to Parliament Square. The claimant was therefore arrested and charged with a public order offence but later acquitted in the magistrates =court. The director of public prosecutions appealed against that decision and the matter was sent to the High Court.

The appeal was allowed with Lord Justice Bean and Mrs Justice Furbey finding that where the ingredients of the offences in themselves ensure the compatibility of a conviction with a defendant’s rights under Article 10 & 11, there is no requirement for the prosecution to prove that any interference with those rights has to be proportionate. It was held that the first instance judge had erred in allowing a proportionality exercise when exercising their judgment with regard to the verdict; this exercise should have taken place at sentencing. The claimant’s case was remitted back to the magistrates with a direction to convict and sentence to be given.

This decision could be an indication as to the way the courts will deal with challenges to the new public order legislation. It is worth noting however that the events leading to the claimant’s case were in 2020 and hence the legislation in force at that time was different to the PCSC Act and the POA Act, so its significance for any arrests under the new legislative provisions remains unclear.

It is in any event a decision that will not be welcomed by a number of activist groups who have condemned the recent POA legislation’s introduction.

The future/secondary legislation

On 27 April 2023, the Home Office laid before Parliament the draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. The regulations amend the definition of ‘serious disruption’ currently set out as the threshold for police intervention.

Using powers inserted in the 1986 act by the PCSC, this instrument would change the definition of ‘serious disruption’ to allow police to impose restrictions on or prohibit protests which cause “anything more than minor” hindrance to the day-to-day activities of others, and would allow police to take into consideration the cumulative impact of repeated protests.

The regulations would provide the police with more scope to act when protesters block roads with slow marching. This has been criticised by some as overreaching or draconian as the POA already has measures that can tackle this behaviour without the need for further legislating. The home secretary, Suella Braverman, said in support of the regulations that the impact of "disruptors" from protest groups had been "huge" and "the police must be able to stop this happening".

For the avoidance of doubt, these amendments were rejected by Parliament during the passage of the draft Public Order Bill. The measure being reintroduced via alternate means has raised concerns among peers about the constitutional implications of the use of secondary legislation to restore measures that have been through the standard process of scrutiny and rejected.

These regulations were placed before the Secondary Legislation Scrutiny Committee (SLSC) on 9  May 2023. The SLSC had concerns that the Explanatory Memorandum to the Regulations did not mention the fact that the measures were defeated during Parliamentary debate on the Public Order Bill, something it “should acknowledge and address”. The regulations were backed by MPs in a vote on 12 June, with 277 in favour and 217 against.

Secondary legislation, unlike primary legislation, awards the House of Lords a power of ‘veto’ and prior to the Lords considering the new regulations on the 13 June 2023 a ‘regret’ motion was filed from the Labour Party, which criticised the regulations, and a ‘fatal’ motion from the Green Party, which would have stopped the regulations passing. Urging peers to back her motion, Baroness Jones of the Green Party said this was an "authoritarian law that hands power to decide what is a good protest or a bad protest over to the police and the Home Office" arguing that the law was "being enacted in an authoritarian manner by ministerial decree".

Home Office minister Lord Sharpe called the baroness' motion "highly unusual", arguing it sought "to strike down legislation passed by the elected House and undermine sensible changes, which bring clarity and consistency to the law".

Ultimately, the Green party’s fatal motion was rejected by peers by 154 votes to 68, majority 86. Peers voted to support the Labour regret motion - which criticised the regulations but did not block them - by 177 votes to 141. Despite peers being highly critical of the government's actions in bringing back regulations that had been previously rejected via the due process by peers in the primary legislation process, the Labour party did not support the Green Party’s fatal motion, because of a convention to accept the will of the elected House of Commons.

Discussion

The government’s purported intention with the recent public order legislation, both primary and secondary, is to improve the police’s ability to manage protests and take a proactive approach to prevent such disruption happening in the first place. They claim that this in turn will ensure that police can better balance the rights of protesters against the rights of others to go about their daily business and to focus their resources on keeping the public safe. A number of critics of the legislation have argued that this legislation disproportionately limits the right to protest and restricts freedom of expression and assembly (Articles 10 & 11 of the HRA), which they claim essentially bans protest activity.

As set out above with reference to sections 3 and 6 of the HRA, legislating and policing in this area alike will always involve walking a tightrope between balancing potentially competing civilian human rights. On one side of the scales is the rights of protesters to freedom of expression and assembly (Articles 10 & 11 HRA) and on the other the rights to liberty of the general public disadvantaged by protest activity and their rights to go about their lives unhindered by roadblocks for example (Article 5 HRA). Given the number of recent protests case law in this area will continue to develop as each of the cases waiting in the wings reaches the court.

It is unclear what impact the new legislation will have on the logistics of policing but it is anticipated to be drastic. With a number of new offences created this will certainly lead to an increase in arrests being made, and an increase in officers required to be deployed to police the protests. The officers making the arrests would also need to travel away from their posts to book in arrested individuals at local custody suites. Indeed, if a number of individuals are arrested at larger scale protests, then custody suites may suffer strain and delays at booking in and further inevitable delays in people being interviewed and processed. This will in turn mean more officers are away from their posts at the protest itself for even longer periods. This will all surely lead to an increase in public spending on police force resources, an increase in overtime as well as fewer officers being available to respond to the standard daily demands on forces for community policing and crime. The other inevitable impact of more arrests being made is an exacerbation of the current court delays for cases to reach trial.

The legislation has not yet been in force for a full month, and as such only time will tell the true impact of the POA and the recently passed regulations. What remains consistently and abundantly clear from this legislation’s journey from bill to royal assent is that it is one of the most divisive pieces of legislation relevant to modern policing which has led to a number of constitutional peculiarities and presented a number of questions about fundamental human rights and the potential government interference with the same.

Emelia Bezant-Gahan is an associate at Weightmans