In May 2022, the House of Commons Public Bill Committee asked for submissions on the government’s new Public Order Bill. This is Netpol’s response.


1. This submission is concerned with the compatibility of the proposed Bill with Article 11 of the European Convention on Human Rights (ECHR) on freedom of assembly. Although Article 11 is a qualified right, the Convention does not grant the state unlimited discretion to take any measure it considers appropriate. The conditions required for interference with the freedom of peaceful assembly are laid out in Article 11(2): the interference must be in accordance with the law; and it must be necessary and proportionate to a legitimate aim.

2. In numerous rulings by the European Court of Human Rights, Article 11 has been held to cover a considerably broad range of protests that were deemed “unlawful” by Convention states, including sit-ins and the occupations of buildings. Forms of “direct action” protest considered within the scope of Article 11 have included the obstruction of a public road in order to disrupt access to a naval base; the creation of a rolling barricade of vehicles across several lanes of the motorway in order to slow down traffic; and a mass demonstration which obstructed a major highway for a period of 48 hours.

3. The Public Order Bill has been presented by the government as granting new police powers to tackle a narrow focus on precisely this kind of protester activity: “direct action” protests that are non-violent but also capable of significantly disrupting “the life of the community”. This is the same justification the government used for its previous expansion of police powers under the Police Crime Sentencing and Courts Act 2022, although the government has decided not to wait to assess both the practical effectiveness of these measures or their potential negative impact on Article 11 rights.

4. Instead the government has ploughed ahead with even more public order legislation. Netpol contends, based on our extensive experience of monitoring protests over the last 13 years, that these latest measures will lead to greater restrictions on demonstrations, based on police operational decisions that significantly expand (even further than current broad definitions) what constitutes “significant disruption”.

5. Furthermore, far from having a narrow focus on a small number of demonstrators, we believe these proposals will have a much wider impact, by depriving participants in protests of their Article 11 protections largely on the basis of the social and political movements they are members of.

LOCKING ON

6. Currently, the police have considerable existing powers to arrest protesters for blocking roads, the entrance to buildings or access to land using lock-on tactics. In our experience, officers rarely release, without making an arrest, any protester who is locked onto another person or attached to an object. There are always arrests if a specialist team is needed to remove protesters.

7. With the proposed new offence, the government is instead seeking to criminalise the method by which serious disruption might potentially take place, rather than focusing on the actual degree of disruption this kind of protest could lead to.

8. The apparent intention is to send a warning to protest movements that such tactics – in any circumstances – are liable to result in a robust response from the police, in the hope that this somehow discourages further locking on, particularly by climate campaigners, which the government appears to think is a new tactic.

9. However, this presupposes that the protesters who use these tactics are unaware of the prospect of arrest and prosecution and are liable to be dissuaded by stronger penalties if they are convicted. “Significant disruption” remains a relatively minor non-violent offence committed on conscientious grounds. It seems to us that both the government and the police fundamentally misunderstand protesters’ motivations for adopting civil disobedience tactics in the first place, which are often directed against corporate interests perceived as themselves engaged in immoral or potentially unlawful activities that the government is ignoring. The government certainly has no way of knowing whether more aggressive police powers will work and this certainly is not evidence-based policy making.

10. What this measure is likely to encourage, however, is the police starting to see any form of civil disobedience as liable for immediate arrest, even when this is neither a reasonable nor proportionate interference in Article 11 rights, based on an already very broad definition of what “significant disruption” actually constitutes.

11. It is unclear whether, for example, the police may choose to use this proposed new power on demonstrators sitting down in a road and linking arms, or a protester using a safety harness to climb a structure or to attach themselves to a tree. Our concern is that “locking on” becomes the de facto way of describing every attempt to resist the immediate shutdown by police of any kind of civil disobedience protest.

EXPANDED STOP AND SEARCH

12. The additional proposed new offence of “going equipped for locking on”, which could mean possessing a bicycle D-lock, a length of rope or a tube of superglue, will inevitably provide the justification for using new stop and search powers with wide-ranging grounds, including powers that will not require “reasonable suspicion”, to find equipment seen as suspicious.

13. This is where the police’s view of civil disobedience as inherently unlawful is most likely to overlap with the systematic targeting of searches for anyone officers think is travelling to a protest and is part of a movement whose very legitimacy they question.

14. Having worked closely with frontline opponents of fracking in England for over six years, Netpol can see particular issues arising from long-term protests or protest camps where potentially “suspicious” items, such as bicycle locks or rope, are part of the everyday practicalities of living outdoors.

15. As we noted in our report on the policing of anti-fracking protests in 2017, there were repeated complaints from campaigners that police tactics often appeared “deliberately intent on making it as difficult as possible for local people to effectively oppose the activities of the onshore oil and gas industry”. Treating everyone as a potential trafficker in lock-on equipment would most probably have become commonplace if the proposed powers had been in place when opposition to fracking was at its peak. It seems unlikely a senior officer at an oil or gas drilling site would not have taken the opportunity to authorise searches and seize any items deemed “prohibited objects” without needing to justify their actions.

16. However, we do not need to imagine what a massive operation in search of protesters “going equipped” might look like in practice: this is precisely what happened at the Camp for Climate Action at Kingsnorth in 2008. A report in its aftermath described how:

Everyone attending the camp was subjected to extremely detailed, intrusive, time-consuming and repetitive searches, unprecedented in scale or intensity on protests in the UK within recent decades. One person was searched 25 times. Although the police set up a base like a customs checkpoint, the quality of searching was much more like the regime for prison visits.

17. A list of the items seized as a result of this massive stop and search operation at Kingsnorth shows the potential for ‘prohibited’ items to include almost everything, including in that instance blankets, a walking stick, a clown outfit and soap. Eventually, following a civil action, Kent Police was forced to admit that its stop and search policy was “unlawful” and “should not have happened”.

18. The government expects us to trust that the police now have a greater understanding of what is reasonable and proportionate than they did in 2009 and will now use stop and search powers responsibly. However, in our experience, police commanders are far more concerned with whether the powers that are available to them are useful in preventing crime or maintaining order, rather than whether constraints on protest are necessary. This is a much lower threshold, one which unacceptably limits the exercise of fundamental rights.

19. As recently as 2019, for example, Netpol’s report on the policing of Extinction Rebellion protests in London concluded:

The zero-tolerance of any disruptive protest adopted by the police led to the perception of all XR supporters as “criminals”, who were judged not by their individual actions, but by their association with an “illegal” movement. This delegitimisation included the abuse of stop and search powers and confiscation and destruction of protesters’ property.

SERIOUS DISRUPTION PREVENTION ORDERS

20. Our biggest concern about the proposal for Serious Disruption Prevention Orders is that they provide a justification and the impetus for a massive expansion of intensive surveillance on non-violent political movements.

21. In its thematic review on “how effectively the police deal with protests” published in March 2021, the HM Inspectorate of Constabulary, Fire & Rescue Services (HMICFRS) outlined the divergence of opinion on introducing banning orders during a National Police Chiefs Council protest round table meeting of senior officers on 6 June 2019, with “a common view that the potential proposal had significant human rights implications”. Several attendees expressed alarm at “a massive civil liberty infringement” and the potential to “unnecessarily curtail people’s democratic right to protest”.

22. Government officials said that a banning order would target a relatively small number of campaigners: the Home Office response says police had identified “circa thirty environmental activists who travel the country orchestrating protests and taking direct action”. They admit that “these individuals are undeterred by the threat of arrest” and that the proposal “essentially takes away a person’s right to protest”. The Home Office ultimately concluded that “we believe it unlikely the measure would work as hoped”, both in having any deterrent effect and in expecting the courts to simply ignore Article 11 rights when deciding to impose a prevention order.

23. One officer, however, reportedly “reflected that the police would need to improve their public order intelligence capabilities to allow the proposal to work in practice”. Now that the government is ignoring its own officials and pressing ahead with this proposal, it is Counter Terrorism Policing, a national unit responsible for investigating terrorist threats, who will lead this surveillance because the targets are classified as taking part in “high-level aggravated activism” – what was previously called “domestic extremism”.

24. To build a case for bringing a serious disruption prevention order against one of the small numbers of non-violent protesters the police say they have identified, officers will seek to gather intelligence on hundreds of people in the movements they are part of, on the people they know and on the places they work – even if associates or friends have personally never committed any kind of unlawful activity.

25. As alleged aggravated activists are “travelling significant distances” to attend and speak at demonstrations, the HMICFRS report also recommends that “better co-ordination of police operations to target them, through disruption of travel [our emphasis], arrest, and co-ordination of bail conditions, would likely have reduced their criminality.”

26. This seems to us an extraordinary statement encouraging local forces to deliberately disrupt entirely lawful activities that would potentially affect not only the unlucky thirty-odd “high-level” targets but everyone associated with them.

27. Like the expansion of protest-related offences and the extension of police stop and search powers, the government wants to convince us that serious disruption prevention orders will impact very few “hardcore” protesters and that the wider movements that these targeted individuals are a part of have nothing to fear. We contend that anyone with an understanding of the way protest policing functions must accept that this is simply not credible.

The Network for Police Monitoring (Netpol)
June 2022