The New Dark Age

One of the only protest-related amendments to Labour’s Crime and Policing Bill, which is currently under scrutiny in the House of Commons, proposes the creation of a “statutory right to protest”.

At first glance, the idea of a statutory right might appear entirely reasonable. However, it is unclear what protections it would practically provide that are different from those now offered by the Human Rights Act 1998, which already allows the police to justify restricting individuals’ rights. The existing panoply of anti-protest police powers would remain untouched, while decisions to limit the scope of protests or pre-empt “criminality” would still be made by the police and justified as necessary to prevent disruption.

On top of this, by giving the state the ability to legally define the kind of protest it sees as deserving of protection, the amendment may inadvertently make matters even worse than they already are.

What does the amendment propose?

Currently, the ‘right to protest’ exists only as a mixture of human rights protections including freedoms of assembly, expression and association. These are not absolute but ‘qualified rights’, meaning the state is able, in different circumstances, to limit or restrict them. The courts then interpret whether institutions like the police have decided to impose such restrictions lawfully, proportionately and where necessary.

If passed, the new statutory right amendment introduced by Leeds Central Labour MP Alex Sobel would oblige the police to “respect, protect and facilitate the right to protest”. It would also replicate, word for word, the existing circumstances in the Human Rights Act where a public authority might decide it is entitled to interfere with the exercise of this right. These circumstances include “when it is necessary and proportionate to do so to protect national security or public safety, prevent disorder or crime, protect public health or the rights and freedoms of others.” They are already used regularly to arbitrarily limit, restrict or shut down protests.

Supporters of the new amendment, who include Amnesty International, say it would simply clarify the obligations that the police and other public bodies should already abide by. This position seems, however, to accept that an otherwise benign British state has, in recent years, merely grown confused about its legal obligations in a changing world, rather than becoming the active instigator of what campaigners increasingly recognise as a concerted campaign of state repression against protesters.

What are the risks of this amendment?

Rather than clarity, the amendment’s lack of a definition of a ‘right to protest’ risks state-imposed regulations that delineate the boundaries of what are seen as “good protests” deserving of statutory protection – and thus defining everything else as “bad protests”. If the amendment were to pass into law, the police would undoubtedly demand such regulations and Labour is certain to comply.

In the worst-case scenario, we could end up with protections for only “lawful” protests, in a political climate where anti-protest legislation has worked hard to create uncertainty about what is allegedly unlawful.

The state should never have the ability to make these decisions. The statutory definition of “serious disruption” recently deemed unlawful by the Court of Appeal is the warning of what can go wrong when ministers are granted this kind of sweeping power.

Instead of offering genuine protection to people taking part in protests, what the amendment offers is the illusion of Parliament taking meaningful action. Meanwhile, the Bill itself remains fundamentally opposed to protest rights and actively seeks new ways to criminalise protesters. Previously, Netpol has highlighted the Bill’s inclusion a new offence of “concealing identity at protests” and the government has already agreed to extend police powers to restrict allegedly “intimidating” protests near places of worship.

Furthermore, there is little evidence from other countries that formalising a statutory right has the impact that the movers of the amendment are seeking. Several EU nations like Portugal, Greece, Spain and Serbia have specific rights to assembly, expression and association written not just into domestic law but into their state constitutions. This has not prevented a crackdown on Palestine solidarity demonstrators, Pride marches or climate protests using powers and practices similar to those experienced by campaigners in Britain.

What can we do to defend protest rights beyond Parliament?

This, for Netpol, has been the strength of turning the argument around – rather than reminding the police of their obligations, we should start demanding that they explain, in practical terms, how they plan to protect us from the arbitrary, oppressive use of the extraordinary range of powers they have at their disposal. This was the basis of the Charter for Freedom of Assembly Rights that Netpol launched in 2021 and that we are refreshing later this year.

As more parliamentarians – including prominent Labour and Green Party MPs – support this amendment, we urge supporters to highlight the weakness of the case for a statutory right to protest and the unforeseen risks it could potentially create.

Find out who is sponsoring the amendment here.