The Extinction Rebellion ban on protesting was deemed an abuse of power—will it make us see the law differently?

Feb 25, 2020

Written By Jan Hill

In light of the recent Extinction Rebellion (XR) protests, Jan Hill reflects on attitudes towards the law when it comes to the right to protest.

Recently, the climate change protest group Extinction Rebellion (XR) gained traction in the UK after shutting down Central London for almost two weeks. A record number of people were arrested under Section 14 of the Public Order Act 1986, and eventually, the Metropolitan Police issued a blanket ban on protesting. Under the current order, any assembly linked to the XR “Autumn Uprising” in London is unlawful.

Could XR bring a different issue to light beyond climate change—specifically the way we apply freedom of assembly in this country? Are there other instances where protests have been banned by law in the UK and beyond? How do the UK’s laws on protest compare to other countries, such as Russia, for example?

Beyond climate change: Extinction Rebellion’s battle to peacefully protest

Although detractors often describe Extinction Rebellion supporters as “environmental fanatics” who risk alienating thousands of potential supporters, the organization characterizes itself quite differently. Launched in 2018, Extinction Rebellion (XR) describes itself as an international “non-violent civil disobedience activist movement” and makes three principal demands:

- The government must declare a climate emergency.

- The UK must pledge to reduce carbon emissions to net-zero by 2025.

- A citizens’ assembly must be formed to “oversee the changes.”

To meet these goals, XR says the UK needs to impose severe restrictions on air travel, people must radically cut back on meat and dairy in their diets and dramatically increase the use of renewable energy, and make other important changes because the future of the planet depends upon it. "We have left it so late that we have to step up in a semi-miraculous way to deal with this situation," XR co-founder Gail Bradbrook was recently quoted as saying in a BBC report.

Despite the organisation’s focus on tackling climate change, XR doesn’t spell out exactly how climate change should be solved. Instead, the group is urging the UK government to create a citizens’ assembly of randomly-selected people representing a cross-section of society who would address the climate crisis, with the help of numerous experts.

Since the protesting ban was issued, XR has actively engaged itself in another battle: the right to assemble and protest at all. While the police insist that the crackdown was necessary to curb intentional civil disobedience that caused widespread disruption throughout London, critics say the ban is a massive overreach of police power in a free democratic society.

Freedom of expression and assembly in the UK: a timeline

The right to freedom of expression and assembly are fundamental aspects of a liberal democratic society, and the European Convention of Human Rights, specifically Articles 10 and 11, safeguards the right to protest in a peaceful manner.

In the UK, several laws provide a framework for the policing of protests. Although the Protection from Harassment Act 1997 should not typically be used concerning demonstrations, there is evidence that it is still being used against protestors. For example, in May 2019, the Birmingham City Council was granted an interim injunction under the Protection from Harassment Act 1997 against protestors who were demonstrating outside primary schools in opposition to the new relationships curriculum.

The Public Order Act 1986 gives the police powers to manage two types of protest: public processions and public assemblies. A public procession is a protest march intended to demonstrate support or opposition for a particular view, publicise a campaign, or memorialise an event. A public assembly is a gathering of two or more people “that is wholly or partly open to the air,” also referred to as a static protest.

Former British Prime Minister Margaret Thatcher introduced the Public Order Act 1986, what many consider to be a punitive move in response to the industrial unrest and miners’ strikes that occurred in the late 1970s and early 1980s throughout England. Section 14 of the 1986 law is a direction that allows the police to impose various conditions on public assemblies. To be convicted of an offence under Section 14, the government must prove that an individual was aware of the conditions imposed by police and intentionally chose to break them.

Section 14 notices are not frequently used, however, they are more common when the police have advance notice of a sizeable protest to empower law enforcement to impose various conditions on assemblies “to prevent serious public disorder, serious criminal damage, or serious disruption to the life of the community.” These conditions typically specify:

- The number of people who may take part in the assembly.

- The location of the assembly.

- The maximum length of the assembly.

These conditions can either be set up ahead of time or at the scene by the senior police officer present. According to the law, the conditions can be imposed as they appear necessary to prevent serious disorder, disruption, or intimidation. Conditions are more likely to be imposed if protestors talk to the police ahead of the event.

One particularly controversial condition police sometimes employ containment (sometimes known as kettling). Containment involves police officers holding protestors in a specific area until they are confident that they can be safely dispersed. In theory, containment allows the officers to better control crowds. Still, some argue that the use of containment is counterproductive because it antagonises crowds and causes increased tension between the police and protestors.

The Metropolitan Police used containment during the ‘student fees protests’ in late 2010 when students and others were protesting the Coalition Government’s policy to increase university tuition fees from £3,000 to £9,000 per year. Protesters were frequently contained during the demonstrations, sometimes for several hours at a time, in what were cold and often hostile conditions. Protestors could exit the containment if they agreed to leave peacefully but were required to queue.

Some protestors questioned the use of containment, arguing that it was intimidating, indiscriminate, and served to discourage young people from exercising their rights to protest in the future. However, advocates argue containment is used only as a final resort and is only permitted when a breach of the peace is taking place or is reasonably imminent. Although containment could present a risk of interfering with a person’s human rights, UK courts have ultimately found the use of containment to be proportionate and in-keeping with human rights legislation.

Recent reforms intended to balance the right to protest with the need to keep order

Policymakers and UK courts have long attempted to balance the right to protest with the need to maintain the public order and during the early 2000s, legislation was passed to further strengthen the law. However, during the 2009 G-20 London summit protests, the police were harshly criticised for their use of force in requiring journalists to leave the protests by threatening them with arrest. In response to this criticism, the current police guidance across England and Wales emphasises that police should always begin with a presumption that a protest will be peaceful, maintain open communication with protestors before, during, and after the demonstration, and use force only as a last resort.

However, recent protests have again raised questions about the current legal framework. Some believe that police powers against protestors should be reinforced, arguing that stronger legislation could allow the police to intercede more effectively against peaceful protests that cause lengthy and severe disruptions. Some question whether legislation seeking to restrict harmful speech is strong enough.

The extent to which the police should intercede against protestors who use offensive, harassing language continues to be a controversial topic in the UK. Some argue that when demonstrators use offensive language, they cause significant harm to their target, and civil and criminal action should be taken against them. However, many civil rights organisations say that the use of harassment legislation against protestors risks infringing on their right to freedom of expression.

What’s next for the right to protest?

The Public Order Act 1986 has been amended several times (mainly to strengthen police powers), although the fundamental framework it provides regarding the policing of protests has stayed virtually the same since the mid-1980s. Since the XR protests, senior police officers have questioned whether the Act is outdated and needs review.

As a result, the Metropolitan Police and ministers are currently discussing changing the law to make it easier to impose conditions, and the government has been pressing police to take more robust action. The attention created by the XR protests will likely manifest in one of two ways: bolster police position that the public order laws need updating to cope with modern protest, or further encourage citizens to take a stand on their right to freely assemble.

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