Original article republished from openDemocracy under a Creative Commons Attribution-NonCommercial 4.0 International licence.
New anti-protest legislation forced through by Suella Braverman has been labelled “unlawful”
15 June 2023, 3.55pm
At midnight last night, the right to protest in England and Wales became a matter of police discretion.
Yesterday, the police could restrict or stop a protest to prevent it causing either “serious public disorder, serious damage to property, or significant and prolonged disruption to the life of the community”.
Those powers already allowed plenty of room for interpretation, but from today the threshold is even lower. This week, home secretary Suella Braverman forced through new laws in a way never seen before in the UK. Here’s what you need to know.
What are the new police powers targeting protests?
Changes to the Public Order Act mean police can now restrict or stop a protest if they believe it could cause “more than minor disruption to the life of the community”. They have the power to arrest anyone taking part in a protest, or even anyone encouraging others to take part.
Officers are also now required to consider “cumulative disruption” from protest, even if the protests in question are organised by different people and about different issues. And the definition of “community” has been changed to include anyone affected by a protest, not just people who live or work in the area it’s happening in.
“The regulations also say the police will be required to take into account all relevant disruption. For example, if there are regular traffic jams in the area, that would have to be taken into account [when the police decide whether to ban a protest], even if it had nothing to do with the protest”, Jodie Beck, policy and campaigns officer at Liberty told openDemocracy.
Braverman argued the new laws were needed to target slow-marching protests from climate activists Just Stop Oil and Extinction Rebellion.
What do they mean?
In reality, the police could find a way to argue that any protest meets the threshold for imposing restrictions, if they wanted to. The new law, says Beck, is a “huge expansion of police powers” that could also lead to police allowing some protests to go ahead while imposing restrictions on others, simply based on how the officers felt about the message behind them.
While the government has focused on one particular type of protest – slow-marching – all protests are potentially impacted.
Beck gives the example of striking railway workers and their supporters holding a rally outside a train station. The police “could decide that means a more than minor disruption to people’s travel,” and so ban the gathering, and arrest anyone taking part.
It could even be that police officers rule that a picket line causes “more than minor” disruption to the workplace it is picketing – after all, that’s the point.
But it’s not just the new laws which have shocked experts. It’s also how they came about this week.
How did the new laws restricting protests get passed?
Originally, Suella Braverman tried to sneak the new legislation into the Public Order Act, which passed earlier this year and came into effect just before the coronation. Rather than allowing these changes to face the usual scrutiny in the House of Commons, the home secretary had them added as last minute amendments to the bill in the House of Lords, after MPs had already voted on it. Her attempt failed – the Lords thought these measures were too draconian and voted them down, though they approved the broader new bill.
Undeterred, Braverman turned to a constitutional trick that’s never been used before. Because while new bills – known as ‘primary legislation’ – require line-by-line scrutiny in both houses, various laws already on the statute book give ministers powers to make small changes via something called ‘secondary legislation’. And secondary legislation doesn’t get nearly as much scrutiny, with both the Commons and Lords simply voting for or against.
The home secretary argued that another act passed last year by then-home secretary Priti Patel – the Police, Crime, Sentencing and Courts Act – already gave her the power to make these changes via secondary legislation. So that’s what she did this week, making it the first time ever that a government has used secondary legislation to push through a measure that had already been voted down by parliament.
The secondary legislation passed through the Commons on Monday, with the Tories taking full advantage of their majority. In the Lords, Green peer Jenny Jones filed a highly unusual fatal motion, a rare procedure used to try and kill off the passage of a bill. Normally, because it’s an unelected house, the Lords tweaks legislation passed by the Commons, but doesn’t ultimately vote it down. Jones argued that, because the government was bringing back a law which had already been voted down by parliament through a route which requires almost no scrutiny, this should be an exception.
Labour, although they complained about Braverman’s shenanigans, refused to back Jones, and abstained on the motion, meaning it passed. Police, Crime and Fire minister Chris Philp then enacted the new measures from midnight last night (secondary legislation doesn’t need royal assent). And so now, the police can shut down any protest they like.
The story doesn’t end there. Liberty is taking the government to court, calling the move “unlawful” and arguing that it broke many of the basic principles of the British constitution.
What do human rights campaigners say?
Katy Watts, a lawyer at Liberty, accused the government of “putting itself above the law” and said the move gives police “almost unlimited powers to stop any protest the government doesn’t agree with”.
And Beck believes we need to see this in the context of a much broader attack on our democratic rights. Noisy protests have been banned. The government is already attacking the right to strike, making it easier for bosses to sack people who vote to withdraw their labour. They’ve made it harder to vote, and harder to challenge them in the courts.
“Even if you’ve never been to a protest, you never know when you might need to,” she said.
With the new laws, there is a growing chance you’ll be arrested if you do.
Original article republished from openDemocracy under a Creative Commons Attribution-NonCommercial 4.0 International licence.
