These proposals are the first major changes planned to the Public Order Act (POA) 1986 in nearly 20 years, when the minimum number to constitute an assembly in s.14 was brought down from 20 to two. Previously, the only change had been to introduce a statutory to ban certain “trespassory assemblies’ (s.14A) in 1994, putting public processions and assemblies much more on a par. The Bill is here, and the relevant clauses (that will become sections if it is passed) are cl.54-60. There is a fuller paper with more law in it also on this blog, for those interested in that sort of thing.
In outline, the bill proposes
- Creation of a new trigger for the power to impose conditions on both public processions and assemblies, one based on noisiness. This has two elements: the noise generated by those taking part
- may result in serious disruption to the activities of an organisation which are carried on in the vicinity [whatever that might mean] OR
- may have a significant and relevant impact on persons in the vicinity
- Relevant impact here meaning
- it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity OR
- it may cause such persons to suffer serious unease, alarm or distress
- Significance of the impact is a function of likely number who may experience the relevant impact, its likely duration and likely intensity
- Relevant impact here meaning
- Creating parity between s.12 and s.14 by removing the caveat in s.14(1) that conditions on assemblies can only be imposed on place, maximum duration, or maximum number (and as appear necessary to prevent the disorder etc). The new power for assemblies will be limited only by necessity
- Conferring of a power on the Home Secretary to make Regulations governing the meaning of “serious disruption to the life of the community” and the new “serious disruption to the activities of an organisation” carried on in the vicinity
- The offences that protesters might commit under ss.12 and 14 have been extended in that the prosecution no longer needs to prove they knew of the conditions; it is enough that they ought to have known.
- An increase in some penalties to 51 weeks, from three months, and fines on standard scale 4 (from 3).
- Broadening the geographical reach of the controlled area around Westminster AND adding obstructing vehicular access to/exit from the Parliamentary Estate to the list of prohibited activities (currently, broadly, amplified noise equipment and tens/overnight sleeping equipment) – and a power to list an alternative area in Regulations should Parliament re-locate temporarily.
- Abolition of the common law offence of public nuisance, replaced by a much wider statutory offence of intentionally or recklessly causing public nuisance.
- A new power to impose conditions on one-person protests in public places on similar lines to those above i.e. reasonable belief that the noise generated will seriously disrupt the activities of an organisation or cause significant impact on people in the vicinity.
Some general thoughts
- The range of planned changes is surprising, given the impetus for change – certainly one of the drivers – was the loss in the High Court by the Met in the Jenny Jones judicial review. It is hard to see how any will actually address the perceived problem. The issue there for the Met was their argument that a single officer could impose London-wide conditions on XR. The High Court held that an officer had to be at every “scene” where conditions were going to be imposed, in order to assess the necessity on the ground each time. This Bill does nothing to assist the Met on that specific issue…so why is it needed?
- Yet again, there is no explicit inclusion of proportionality as the gauge by which officers should test whether or not to impose conditions. Proportionality is a standard means for evaluating the balancing of rights against wider social interests, such as disruption to traffic or business, yet it is absent on the face of this Bill.
- This real problem for protesters and activists is not (always) so much the law – the legal rules and position – but how this is implemented and interpreted on the ground by officers; generally speaking the wider framed the law, even more widely used will be the operational power. As I put it in my recent Kings Law Journal article “Policing Protest in a Pandemic” (2021), “The reality of protest is often at odds with its legality”. Many might feel ‘chilled’ or might turn up but feel under an obligation to abide by what turn out to be legally invalid conditions. Very few will end up in court where, with appropriate legal advice, the conditions and/or arrests might be challenged.
- These changes follow the same evolutionary and restrictive path that we can trace back, say, to 1936 and the first Public Order Act to deal with Mosley and his Blackshirts, and to that extent come as no surprise. The opportunity once again to consider it all in the round, taking account of all interests and all voices – not just those institutional voices of the police, and indirectly here it seems local disrupted communities – has again been missed.
- Further, the Bill, like the Public Order Act before it, and like almost all public discourse around the protest and activism conceives it as an individualised play-off: protester(s) A against business(es) B and bystander(s) C, a bilateral relationship. There is little or no sense of the wider social value of a protest. Using this Bill to open up a discussion of who really benefits from protest, and thus who might lose from its being restricted would be enormously helpful.
- The greater increase in policing power is likely to come from not simply the changes but the changes allied to general preventive powers, combined with an expansion of discretion. For example, adding obstruction of vehicular access to/exit from, say, the House of Commons to the list of prohibited activities in the area, broadly amplified noise and tents/sleeping equipment is a great change. Both of those again broadly require some equipment whereas obstruction does not. It can be committed (Bill, cl 57(3)(a) “by the use of any item or otherwise”. Anyone in the area becomes a potential suspect, not just those with sleeping bags or loudspeakers. They can now much more easily be given a direction to desist, and failure without reasonable excuse constitutes an offence.
- The plans in effect to allow officers to impose conditions on assemblies (now of only one) and on public processions based on the likely noise disruption or impact bring similar, but greater concerns. The most obvious point I suppose is that protests are almost always noisy either because of numbers, or simply because of the fact that this is the way to communicate a message to bystanders, and to show solidarity between members. A power to regulate assemblies and marches simply because an office has the prospective ‘reasonable belief’ that the noise might have certain effects is in many ways an existential attack on the right to protest, one that might end up almost shifting the burden onto protesters – either, somehow, to say “we will be quiet”(!) or “the noise we make will not reach the level as to cause serious disruption or significant impact”.
- There is a new power which will allow the Home Secretary to make Regulations – with much less parliamentary scrutiny – that affect primary legislation, s.12 and s.14 of the POA 1986. It does so here by empowering the Home Secretary to define any expression in the following two terms “serious disruption to the activities of an organisation which are carried on in the vicinity” or “serious disruption to the life of the community”. This too is worrying.
- That protesters, if the Bill passes, would be liable to arrest for failing to comply with conditions that they ‘ought to have known’ about, what lawyers terms constructive or Nelsonian knowledge, will again only strengthen the hand of the state since the CPS (and before the police when arresting) no longer need to prove actual knowledge. Turning a blind eye to the obvious will not help.
- The Bill proposes to put the common law offence of public nuisance onto a statutory footing. While usually we would welcome such moves, it is hard to see what purpose it will serve as the old law had almost become redundant through being overtaken by the spread of environmental protection offences and of offences relating to grossly offensive communications. This change revivifies an almost moribund offence, and provides prosecutors, and before them the police, with considerable latitude to take action. The offence will be committed by intentionally or recklessly causing serious harm (by act or omission with ‘serious harm’ defined as death, personal injury, or disease; or loss of or damage to property. The injury does not need itself to be serious – so would, say, include breaking someone’s fingernail – and neither does the damage. This new offence is therefore a prime candidate for use against almost any activists who does anything more than simply march or hold a demo – and even they might be covered since “serious harm” also includes ‘serious annoyance’.