May 2, 2023 
This article first appeared in the Summer 2023 edition of Freedom
Nothing quite illustrates how a spark can seem to catch and then fail to reignite more than these two grim facts. Firstly, there are young people in prison in Britain today because they came onto the streets in 2021 and tried to prevent a harsh law restricting the rights of both protesters and of Gypsy, Roma and Traveller communities. Secondly, only two years on, Parliament has rubber-stamped the Public Order Act – another piece of anti-protest legislation containing all the most oppressive, most draconian changes the Conservative government failed to push through previously – with barely a whimper.
This is not meant to single out anyone for criticism. Stopping a government from passing laws when the ruling party has an enormous Commons majority was always, at best, unlikely, even when thousands protested against the Police, Crime, Sentencing and Courts Bill in 2021. We simply lacked the numbers and the momentum.
Knowing this should, however, give pause to everyone who devoted so much time and energy trying to lobby Tory parliamentarians with brilliantly worded arguments about the importance of human rights and the negative consequences of the proposed new laws.
Appealing to politicians did not work in 2021 and it has not worked to counter the Public Order Act. The Conservatives, now ideologically a far-right populist party and deeply authoritarian, simply have no interest in listening to reason.
Climate culture wars
The state has treated the right to protest with even greater intolerance than usual since the emergence and political challenge of new environmental civil disobedience movements like Extinction Rebellion in 2018.
This was accelerated by the Johnson government’s landslide election victory the following year and by the global pandemic, which led to the greatest restrictions on our human rights (and particularly the right to assemble) in generations.
I think sometimes we underestimate the profoundly negative effect that halting our ability to gather together, no matter how important this was at the time, has had on state attitudes towards protesters. Nor am I talking only about the police, who have always treated protests as a little more than a nuisance and who revelled in the opportunity that lockdowns provided to “impose order”. We saw that most graphically in the Metropolitan Police’s violent response to Black Lives Matter protests in London in 2020.
Government attitudes too have hardened against any sense that the right to protest is inherently valuable in a supposedly democratic society and this is certainly reflected in the legislation that has followed.
Woven into the government’s reaction to mass climate activism, is, of course, the desire to protect the fossil fuel industry. The focus for ministers has shifted towards more aggressively framing political debate over the consequences of inaction on the climate emergency into a populist cultural battle between “disruptive environmentalists” on the one side and “hard working citizens going about their daily lives” on the other (as though these were two entirely separate groups).
Restricting disruptive protests
The government has sought to restrict the right to so-called “disruptive” protest in three ways. Firstly, ministers want to severely narrow the idea of what is “acceptable” disruption that inevitably results from protests, to mean only the most minor inconveniences are considered legitimate.
Secondly, they are expanding police powers to offer senior officers what they might potentially find useful at some point, rather than on what is genuinely reasonable or proportionate (the standard for human rights compliance).
Thirdly, they are introducing new laws to criminalise the methods by which serious disruption might potentially take place, rather than focusing on the actual degree of disruption a protest could lead to.
In all cases, the importance of fundamental rights to freedom of assembly have been almost completely ignored.
The Police, Crime, Sentencing and Courts Act 2022 was the starting point: it enables the police to limit protests based on a vaguely worded and highly subjective decision about whether they were too noisy. It is significant that over the last year, this power has not yet been used. Instead, the police have relied heavily on another part of the new legislation, the revised offence of “public nuisance”. This was hardly ever used against protesters in the past but is now more often the preferred charge, instead of “obstruction of the highway”, for blocking roads. This is because it has proven the most convenient way to shut down protests. Usually, this involves little thought about the so-called “balance” between demonstrators and the rights of others and it has enabled the detention in prison of a record number of campaigners, the largest number in decades.
New disruption offences
The new Public Order Act, meanwhile, creates a number of new offences related to disruption, particularly directed against business or corporate interests. These include “obstruction of major transport works” like road building or “interference with key infrastructure” such as oil or gas exploration – had the law been in place before, it would undoubtedly have applied to protests at fracking sites. The Act also creates a new criminal offence of “locking on” to another person or an object as part of direct action or civil disobedience tactics.
Now in every instance, there was already wide-ranging public order legislation in place for all these kinds of activities and under existing laws, arrests were already made and prosecutions already brought. So why create new offences?
Primarily this is because they carry much tougher sentences on conviction, including imprisonment. It is also easier to convince a court to remand detainees or impose restrictive bail conditions. However, it also helps to justify the introduction of new police powers to stop and search anyone suspected of going to commit an offence of obstructing the highway, or public nuisance, or any of the new offences in the Public Order Act.
The greater severity of new offences also provides a pretext for targeting a few key organisers with another alarming part of the Act – Serious Disruption Prevention Orders. These are essentially anti-protest banning orders that can prevent an individual from associating with named others, going to certain areas or attending protests. It may mean anyone who has an order imposed on them is required to wear an electronic ankle tag as part of its enforcement.
These are civil orders, so courts will be able to decide, on the balance of probabilities (the civil standard of proof, not “beyond reasonable doubt”), that an individual is likely to cause disruption – based solely on intelligence from the police.
The threat of intrusive surveillance
The impact of intrusive intelligence-gathering has long been recognised as having a possible “chilling effect” on whether people feel able to go out and protest. This is particularly an issue in Britain because surveillance is at the core of the police’s approach to protests. There is, after all, an ongoing public inquiry into spying by police units on campaigners over many decades.
Surveillance is always rationalised by the labels the police apply to those who are targeted: agitator, subversive, extremist. In Britain, the new label, as Netpol is now trying to highlight, is “aggravated activist”.
In 2019 at a “protest round table” the Home Office said police had identified “circa thirty environmental activists who travel the country orchestrating protests and taking direct action” as the likely targets for new banning orders – a small number of largely pacifist protesters, although the number has most likely grown since then. We do not know exactly how many, because the police say it will cost too much money to provide Netpol with a figure.
The government wants to convince us that Serious Disruption Prevention Orders will impact a very few hardcore “aggravated activists” and that the wider movements that these targeted individuals are a part of have nothing to fear.
In order to build a case for imposing banning orders, however, officers will seek to gather intelligence on hundreds of people in the movements their targets are part of, on the people they know and on the places they work, even if they personally have never committed any kind of unlawful activity.
So on top of new, more severe offences and even more new police powers, the Public Order Act represents a massive increase in police surveillance. It is about criminalising entire movements, particularly environmental campaigners, with the intention of sending a warning to protest movements that civil disobedience tactics – in any circumstances – are liable to result in an aggressive response from the police.
That is the danger for us all – that regardless of what the law says, any protest seen as “disruptive” will face more oppressive policing.
Defending dissent
None of this means that protest is now illegal, but it has become a lot more uncertain.
This is why Netpol’s priorities are much less on the passage of legislation through Parliament or efforts to amend government bills and instead are focused on creating the conditions to challenge the spread of uncertainty once new laws are passed. As campaigners and as movements, we can all help to do this, in four ways.
Firstly, by making sure everyone knows their rights – because knowing what powers the police have gives people enormous confidence to challenge their misuse on the streets.
Secondly, by resisting police surveillance – which means better protection for the members of our movements most likely to face such targeting and a greater awareness of the basic security practices which can help us challenge police intelligence gathering.
Thirdly, by getting better at offering more practical solidarity – so trying to avoid seeing ourselves in isolation from other campaigns and understanding that the threat of oppressive policing falls on all of us, so we better start offering solidarity to each other, even if we disagree on tactics.
And finally, it means actively monitoring what is happening around the country. Netpol needs your help to know when new powers are used and in what circumstances so we can build a case for why we believe they exist primarily to disrupt and further criminalise the right to dissent.
We have an encrypted monitoring form and a number to send us information via Telegram/Signal. You can find more information on our Defending Dissent campaign at netpol.org/defend-dissent
https://netpol.org/2023/05/02/stripping-away-our-right-to-dissent/
