Tuesday, 17 May 2022 — NetPol

Having successfully passed one piece of vague, draconian public order legislation, the government is already embarking on the introduction of another.

During the passage of the recently enacted Police, Crime, Sentencing and Courts (PCSC) Act, the government attempted in October 2021 to introduce a series of eye-catching amendments that would have made a draconian piece of legislation even worse. These were defeated in the House of Lords, and because they had been first introduced there, the government was unable to save them.

Now, less than a fortnight after the passing of the new Act, the government is having another go. It seeks to revive the amendments that it lost in the Lords at the start of this year, with a new Public Order Bill to further clamp down on our right to protest.

It is particularly aimed at movements that use direct action and civil disobedience tactics against government or corporate inaction on the climate emergency but would have a profound impact on other campaigners too.

So, what does the new Bill contain?

New ‘locking on’ offences

The Bill proposes that if a person locks themselves onto another person, an object or to land and subsequently causes (or could cause) serious disruption to two or more individuals or an organisation, then an offence is committed. For ‘organisation’, read corporate interest. The maximum penalty is six months imprisonment and/or an unlimited fine.

It also proposes another new offence of “going equipped for locking on”. This is defined as having an item “in a place other than a dwelling with the intention that it may be used in the course of or in connection with” an attempt to lock on. This could mean a bicycle D-lock or a tube of superglue. The proposed maximum penalty is an unlimited fine.

New stop and search powers

The Bill also seeks to amend section 1 of the Police and Criminal Evidence Act (PACE) to provide the police with wide-ranging new grounds for using stop and search powers.

These include suspicion that someone is going to commit the offence of obstructing the highway (under section 137 Highways Act 1980), public nuisance (section 78 of the PCSC Act) or all the new offences proposed by the Public Order Bill (see below).

If that was not alarming enough, the Bill would also introduce a new blanket stop and search power that does not require “reasonable grounds”. This is essentially a version of existing section 60 powers (Criminal Justice and Public Order Act 1994) that are authorised when there is an alleged threat of serious violence or the use of weapons.

If passed, this would put obstructing the highway, public nuisance and the other offences in the Bill on the same footing as an imminent threat of violent disorder.

It also means that if a senior officer believes these protest offences are likely to take place in an area, they can approve far-reaching new stop and search powers for a 24-hour period.

Blanket search powers are already hugely controversial, as they excuse the police from needing to show reasonable suspicion when stopping someone and have largely been used for racist harassment.

Black people are 40 times more likely to be stopped under Section 60 powers than their white counterparts, and less than 2% of searches result in any further police action. In May 2021, the Criminal Justice Alliance made a super-complaint calling for the repeal of Section 60.

These powers are likely to be used by the police to harass anyone they think is on the way to a protest and is part of a movement whose very legitimacy they question. However, they are particularly worrying for marginalised communities that already bear the brunt of racist policing.

Interference with ‘key infrastructure’

The Bill proposes an offence of interfering with “the use or operation of any key national infrastructure in England and Wales” (or intending to). So, what does this include? Although the Bill gives the Home Secretary the power to add to the following list, it says infrastructure includes:

• road transport
• rail
• air transport
• harbour
• downstream (refining) of crude oil
• downstream (processing and purification) of natural gas
• onshore oil and gas exploration and production
• onshore electricity generation, or
• newspaper printing infrastructure.

Had these proposed offences been in place over the last decade, they would have severely restricted sustained and ultimately successful local opposition to fracking sites and other environmentally destructive fossil fuel extraction. The inclusion of newspaper production appears to result from ministers’ anger at Extinction Rebellion’s blockade in September 2020 of sites belonging to the government’s close friends at News Corp.

The maximum penalty is six months imprisonment and/or an unlimited fine in Magistrates’ Court or 12 months imprisonment and/or an unlimited fine on indictment at the Crown Court.

Obstruction of major transport works

For anyone wanting to take action against large-scale and damaging transport projects such as HS2, an airport expansion or a new motorway, there is a proposed new offence of obstructing major transport works, by blocking or interfering with equipment or blockading, for example, construction work.

However, like so much of the Bill, this is vaguely worded and open to very broad interpretation: obstructing construction staff from “taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works” is also an offence and could mean almost any activity.

The maximum penalty is six months imprisonment and/or an unlimited fine.

Serious Disruption Prevention Orders

This is one of the most disturbing elements of the new Bill. These orders can either be made following a protester’s conviction or on application to a Magistrates’ Court from a Chief Constable of a local police force.

Crucially – because you do not need to be convicted of an offence to be issued with one – Serious Disruption Prevention Orders actively encourage the expansion of police intelligence gathering on a range of social and political movements.

This is because they will be used to seek out and target people whom the police perceive as key organisers and to potentially ban them from attending, organising, or promoting protests seen as “disruptive to two or more individuals or to an organisation” for two years or more, even if they have never been convicted of a crime.

Furthermore, the state may decide they become guilty of a crime if they break the rules of the order in any way – or even fail to notify the police that they are staying somewhere else.

As Serious Disruption Prevention Orders are civil orders, the government may allow courts to decide, on the balance of probabilities (the civil standard of proof), that an individual is likely to cause disruption based solely on intelligence from the police.

In March 2021, a review on the policing of protests by the inspectorate body HMICFRS gave a green light for increased surveillance on so-called “aggravated activists”. Serious Disruption Prevention Orders provide a renewed impetus for police to seek out this new classification of campaigner.

Two of the following conditions need to be met for an Serious Disruption Prevention Order:

• A person has committed a protest-related offence.
• A person has committed a breach of an injunction leading to a conviction for contempt of court.
• A person has “carried out activities related to a protest that resulted in, or
  were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.
• A person has “caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”
• A person has “caused or contributed to the carrying out by any other person
  of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales “.

Modelled on the draconian Knife Crime Prevention Orders that systematically criminalise Black youth, conditions of Serious Disruption Prevention Orders can include:

• Not associating with named people
• Not going to certain areas
• Banning people from attending protests
• Reporting to a police station at certain times
• Not participating in certain activities
• Not using the internet to commit a protest-related offence or to “carry out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.

There is also a provision in the bill for electronic monitoring (wearing an ankle tag) of those subject to orders, for up to a year.

The version of the Public Order Bill that has received its first reading in the House of Commons is available here