Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.
The criticism that the Public Order Bill has attracted may suggest that it is an authoritarian charter, which will arm the police ruthlessly to suppress peaceful protest. The reality is rather different.
Like the Police, Crime, Sentencing and Courts Act 2022 before it, which was also denounced as the end of liberty (the critics are not renowned for their sense of proportion, or memory), the Bill the Government introduced to Parliament was a feeble attempt to reform the law. It did not seem to make it any easier for police to act swiftly to arrest and prosecute – or for courts to convict and sentence – the protestors who have brought our streets to a standstill in recent months.
This is protest only in a very loose sense, for the self-styled protestors aim not to persuade the electorate or the authorities. Rather, the object of their tactics is to impose their will by inconveniencing or even hurting members of the public via such methods as obstructing highways or damaging property.
Police have struggled to enforce the offence of obstructing the highway, with protestors relying on the Supreme Court’s 2021 Ziegler judgment to argue that conviction (or even arrest) would be a disproportionate interference with their Convention rights of expression and assembly.
The reasoning in Ziegler has spilled over into the context of criminal damage, most notably in relation to the toppling of the Colston statue in Bristol. Some progress on this front has been made in the courts, but Policy Exchange has consistently maintained that legislation is needed expressly to reverse Ziegler.
The Public Order Bill creates a number of new offences, including offences of “locking on”, causing serious disruption by tunnelling, and obstructing major transport works or key national infrastructure.
However, each of these offences includes a “reasonable excuse” defence, which positively invites the Ziegler treatment. The clauses as drafted would let protestors argue that in “locking on”, tunnelling, or obstructing transport works or national infrastructure they were exercising their Convention rights and that a conviction would be disproportionate.
I pointed out this design flaw in a Policy Exchange paper in November last year, urging Parliament to legislate expressly to reverse Ziegler and thus restore the offence of obstructing the highway.
Happily, Lord Hope (a former Supreme Court Justice) and Lord Faulks (a former Justice Minister) have since tabled amendments to the Public Order Bill which promise to make the offences more workable; the Government is now backing the changes, which means they may well pass.
The amendments are of two kinds: the first provides that an act causes “serious disruption” if it prevents or hinders to more than a minor degree people from carrying out their daily activities; the second specifies that participating in a protest cannot be a “reasonable excuse”.
On Tuesday this week, the Government decided to go further, tabling an amendment to the Bill that extends this approach to the offence of obstructing the highway in the Highways Act 1980 and to the offence of “public nuisance” in the 2022 Act. This is a very welcome development; the Government has at last proposed a direct response to the Ziegler judgment.
However, the amendments that Lord Hope and Lord Faulks KC have formulated, which the Government has now taken over and extended, can be improved. In a new paper for Policy Exchange, published today, Sir Stephen Laws, former First Parliamentary Counsel, and I outline where the amendments are vulnerable and suggest a more effective way to proceed.
For example, the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of “minor” hindrance and “daily activities” loom large.
Likewise, in ruling out participation in protest as a “reasonable excuse”, the amended offences refer, rather oddly, to “protest on an issue of current debate”. Courts will have to grapple with the meaning of these terms, which may introduce uncertainty for police and protestors.
More importantly still, there is a real risk that the intention of the amendments will be derailed by the application of the Human Rights Act 1998.
Section 3 of the 1998 Act requires courts to read and give effect to legislation in a way that is compatible with Convention rights, which means that legislation is sometimes read in surprising ways, contrary to what Parliament meant to convey.
The courts may gloss the amended clauses so that they do not support a conviction that in, the court’s view, would be a disproportionate interference with Convention rights of expression and assembly. Such an interpretation might be reached by manipulating the scope of “serious disruption” or the meaning of “reasonable excuse”.
No doubt, courts should accept that this set of amendments is intended to foreclose such an argument, but they may not.
In our paper, we set out two alternative amendments that have the same policy aim but which are more tightly drawn and thus are more likely to be effective in practice.
The first amendment, Option A, would amend the Highways Act 1980, making clear that no one has a reasonable excuse if he obstructs the highway intending to intimidate, provoke, inconvenience, or harm members of the public or aiming to influence government or public opinion by subjecting any person, or their property, to a risk of loss or damage.
It would also state expressly that the amended provision had to be treated as “necessary in a democratic society for the protection of the rights and freedoms of others”, which would rule out human rights litigation arguing otherwise and thus prevent judicial rewriting of the statute.
The second amendment, Option B, would extend this to other offences that provide a defence of acting with a reasonable or lawful excuse, including the other provisions in the Public Order Bill.
The Bill needs to be amended. In its current form, the offences it introduces are simply unworkable, a position the Government now seems to have accepted. The amendments that have been proposed would improve the Bill and thus should be welcomed.
But the Bill can be made more effective still, and peers should amend it accordingly.
They should also address the one point on which the Bill is genuinely repressive – a point about which human rights lawyers and other commentators have been silent.
Clause 9 of the Bill criminalises protest in the vicinity of an abortion clinic. There is no “reasonable excuse” defence. The clause does not just criminalise intimidation, threats or harassment, but extends to any expression of opinion, however peaceful or reasonable, and seems intended to apply to silent prayer or standing in silent vigil.
The mismatch between this draconian, exceptionless outlawing of protest by an unpopular minority group and the kid glove treatment of other (environmental) protests is striking.
In the Report Stage of the Public Order Bill, on Monday next week, the House of Lords will have an opportunity to ensure that the criminal law of protest is fit to address the disorder created by those who set out to occupy our streets, while still preserving the freedom peacefully and reasonably to protest, including in relation to abortion. I hope they take it.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.
The criticism that the Public Order Bill has attracted may suggest that it is an authoritarian charter, which will arm the police ruthlessly to suppress peaceful protest. The reality is rather different.
Like the Police, Crime, Sentencing and Courts Act 2022 before it, which was also denounced as the end of liberty (the critics are not renowned for their sense of proportion, or memory), the Bill the Government introduced to Parliament was a feeble attempt to reform the law. It did not seem to make it any easier for police to act swiftly to arrest and prosecute – or for courts to convict and sentence – the protestors who have brought our streets to a standstill in recent months.
This is protest only in a very loose sense, for the self-styled protestors aim not to persuade the electorate or the authorities. Rather, the object of their tactics is to impose their will by inconveniencing or even hurting members of the public via such methods as obstructing highways or damaging property.
Police have struggled to enforce the offence of obstructing the highway, with protestors relying on the Supreme Court’s 2021 Ziegler judgment to argue that conviction (or even arrest) would be a disproportionate interference with their Convention rights of expression and assembly.
The reasoning in Ziegler has spilled over into the context of criminal damage, most notably in relation to the toppling of the Colston statue in Bristol. Some progress on this front has been made in the courts, but Policy Exchange has consistently maintained that legislation is needed expressly to reverse Ziegler.
The Public Order Bill creates a number of new offences, including offences of “locking on”, causing serious disruption by tunnelling, and obstructing major transport works or key national infrastructure.
However, each of these offences includes a “reasonable excuse” defence, which positively invites the Ziegler treatment. The clauses as drafted would let protestors argue that in “locking on”, tunnelling, or obstructing transport works or national infrastructure they were exercising their Convention rights and that a conviction would be disproportionate.
I pointed out this design flaw in a Policy Exchange paper in November last year, urging Parliament to legislate expressly to reverse Ziegler and thus restore the offence of obstructing the highway.
Happily, Lord Hope (a former Supreme Court Justice) and Lord Faulks (a former Justice Minister) have since tabled amendments to the Public Order Bill which promise to make the offences more workable; the Government is now backing the changes, which means they may well pass.
The amendments are of two kinds: the first provides that an act causes “serious disruption” if it prevents or hinders to more than a minor degree people from carrying out their daily activities; the second specifies that participating in a protest cannot be a “reasonable excuse”.
On Tuesday this week, the Government decided to go further, tabling an amendment to the Bill that extends this approach to the offence of obstructing the highway in the Highways Act 1980 and to the offence of “public nuisance” in the 2022 Act. This is a very welcome development; the Government has at last proposed a direct response to the Ziegler judgment.
However, the amendments that Lord Hope and Lord Faulks KC have formulated, which the Government has now taken over and extended, can be improved. In a new paper for Policy Exchange, published today, Sir Stephen Laws, former First Parliamentary Counsel, and I outline where the amendments are vulnerable and suggest a more effective way to proceed.
For example, the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of “minor” hindrance and “daily activities” loom large.
Likewise, in ruling out participation in protest as a “reasonable excuse”, the amended offences refer, rather oddly, to “protest on an issue of current debate”. Courts will have to grapple with the meaning of these terms, which may introduce uncertainty for police and protestors.
More importantly still, there is a real risk that the intention of the amendments will be derailed by the application of the Human Rights Act 1998.
Section 3 of the 1998 Act requires courts to read and give effect to legislation in a way that is compatible with Convention rights, which means that legislation is sometimes read in surprising ways, contrary to what Parliament meant to convey.
The courts may gloss the amended clauses so that they do not support a conviction that in, the court’s view, would be a disproportionate interference with Convention rights of expression and assembly. Such an interpretation might be reached by manipulating the scope of “serious disruption” or the meaning of “reasonable excuse”.
No doubt, courts should accept that this set of amendments is intended to foreclose such an argument, but they may not.
In our paper, we set out two alternative amendments that have the same policy aim but which are more tightly drawn and thus are more likely to be effective in practice.
The first amendment, Option A, would amend the Highways Act 1980, making clear that no one has a reasonable excuse if he obstructs the highway intending to intimidate, provoke, inconvenience, or harm members of the public or aiming to influence government or public opinion by subjecting any person, or their property, to a risk of loss or damage.
It would also state expressly that the amended provision had to be treated as “necessary in a democratic society for the protection of the rights and freedoms of others”, which would rule out human rights litigation arguing otherwise and thus prevent judicial rewriting of the statute.
The second amendment, Option B, would extend this to other offences that provide a defence of acting with a reasonable or lawful excuse, including the other provisions in the Public Order Bill.
The Bill needs to be amended. In its current form, the offences it introduces are simply unworkable, a position the Government now seems to have accepted. The amendments that have been proposed would improve the Bill and thus should be welcomed.
But the Bill can be made more effective still, and peers should amend it accordingly.
They should also address the one point on which the Bill is genuinely repressive – a point about which human rights lawyers and other commentators have been silent.
Clause 9 of the Bill criminalises protest in the vicinity of an abortion clinic. There is no “reasonable excuse” defence. The clause does not just criminalise intimidation, threats or harassment, but extends to any expression of opinion, however peaceful or reasonable, and seems intended to apply to silent prayer or standing in silent vigil.
The mismatch between this draconian, exceptionless outlawing of protest by an unpopular minority group and the kid glove treatment of other (environmental) protests is striking.
In the Report Stage of the Public Order Bill, on Monday next week, the House of Lords will have an opportunity to ensure that the criminal law of protest is fit to address the disorder created by those who set out to occupy our streets, while still preserving the freedom peacefully and reasonably to protest, including in relation to abortion. I hope they take it.