Back in July 2013, Netpol expressed our concerns about proposals in the Anti-social Behaviour, Crime and Policing Bill for police powers to disperse people taking part in a lawful assembly and arrest those that did not comply. The passage of the Bill was not without controversy and in January 2014 the House of Lords briefly rejected plans for new anti-social behaviour powers, largely on the basis of how sweeping and subjective they were. However, the bill received its Royal Assent in March 2014 and came into effect in October last year.
The Anti-social Behaviour, Crime and Policing Act does include some safeguards prohibiting its use against authorised trade union pickets or political protest where written notice has been provided under section 11 of the Public Order Act 1986. Inevitably, many lawful political gatherings do not meet these criteria. The Act does also say, however, that a senior officer authorising the use of dispersal powers under section 35 “must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11” of the European Convention of Human Rights.
None of this prevented the use of dispersal powers under section 35 of the new Act against protesters occupying empty flats on the Aylesbury estate in Southwark, where the council has moved out tenants in preparation for ‘regeneration’ that involves demolition of the estate and building 4000 new properties over the next two decades, half “luxury” homes and the remainder supposedly “affordable”. The Southwark protesters are part of a growing protest movement against the housing crisis in London and the transfer of social housing to property developers: they had originally broken away at the end of the March for Homes that took place on 31 January.
On 16 February, the council sought and were granted an interim possession order and the following evening, bailiffs and a large contingent of Metropolitan Police riot officers arrived to enforce it. However, Lambeth County Court had rejected the council’s bid to obtain possession of all buildings on the estate and so the protesters had moved from their original occupation to new flats on the estate. In the stand-off that followed, it appeared that the police intended to force their way into the new occupation claiming an urgent need to “investigate criminal damage” in a building council staff had themselves helped to smash up. Police snatch squads made a number of arrests.
The Fight for the Aylesbury campaign also reported:
At one point an inspector declared an “anti social behaviour” order to disperse the crowd outside the occupation. But it just regrouped a little farther away on the other side of Westmoreland Road, still ready to come and back up the occupation within seconds.
This involved the use of section 35 dispersal powers in circumstances that were clearly related to a political protest. The protections afforded by human rights legislation and the requirement for the authorising inspector to have “particular regard” to it seems to have made little difference. Whilst the tick-box nature of ‘human rights compliance’ means the Metropolitan Police is probably confident it has just enough legal cover for its actions (the courts may yet decide), this incident seems to extend the use of section 35 beyond the limits envisioned by Parliament and hardly reflects the concerns of peers such as former QC Lady Mallalieu, who told the House of Lords a year ago:
“My main concern is the extent to which lowering the threshold to behaviour capable of causing nuisance or annoyance to any person has the potential to undermine our fundamental freedoms and, in particular, the way in which the proposed law might be used to curb protest and freedom of expression.”
Nor is this the first time that section 35 powers have been used against protesters. A month after their introduction, on 22 November 2014, Merseyside Police imposed a dispersal order against anti-fur activists in Liverpool city centre – despite the fact that they were not even protesting at the time. The same force also used these powers the following weekend, against a peaceful anti-fascist counter-demonstration opposing a National Front ‘day of action’ – even though the far right group failed to show up.
In 2013 we warned “it is inevitable that any new powers to disperse on the basis of a likelihood of anti-social behaviour will also be used against people taking part in political assemblies and demonstrations”. Sadly, it has taken only a matter of months since their introduction for this warning to come true.