In recent years, a lot has been written about ‘the right to protest’ and ‘the right to free speech’ in the UK. Yet neither phrase appears in the latest Public Order Act, which became law on 2nd May 2023. The absence of those phrases is unsurprising. First, neither phrase is precise enough for legal drafting. Second, the Tory government behind the 2023 Act wishes to avoid these conceptual problems by painting a picture of protest movements gone wild. In this post, I consider the new Act amid reports of its use during the coronation. From this early case study, we see a dangerous illustration of what is yet to come.
The Public Order Act 2023
The 2023 Act opens with yet more vague ‘public order’ crimes: ‘locking on’ (or being equipped for ‘locking on’), causing serious disruption by tunnelling or by being present in a tunnel, being equipped for tunnelling, obstructing major transport works, and interfering with the use or operation of key national infrastructure. The offence of ‘going equipped for locking on’ is broad enough: a person—without reasonable excuse—has with them an object that may be used in connection with being attached to another object, capable of causing serious disruption to at least two individuals or an organisation. Many commentators have raised concerns about this vague drafting, including Liberty.
The vagueness continues in the enforcement. A police constable need only reasonable suspicion that a person has such an object. So, what if you attend a protest while carrying a padlock? To arrest you, all a police officer must show is reasonable suspicion that you may use the padlock in connection with an act capable of causing serious disruption without reasonable excuse. The language is tortuous because it is incredibly malleable. Outside the context of terrorism, it illustrates one of the lowest thresholds in the modern criminal law for police interference.
Coronation as a Case Study
It is now familiar to see arrests of environmental protestors. Until 2022, the British monarchy played little role in ‘public order’ allegations. After Elizabeth Windsor’s death, things began to change. The funeral processions sparked some early examples, such as the person in Edinburgh who shouted an insult at Andrew Mountbatten-Windsor. Then came the heavily publicised case of the young person in Luton, convicted of disorderly behaviour under section 5 of the Public Order Act 1986 and fined £100 by the Chief Magistrate in January 2023 for throwing an egg in the direction of the new monarch.
The coronation provided the starkest example of the problem. Based on press reports, it seems that the police roamed predictably wild. The leader of Republic, the UK’s main anti-monarchy organisation, was arrested, seemingly on suspicion of carrying ‘locking on’ devices. BBC News reported that over fifty people had been arrested. Based on the limited information available, at least some of those arrests concerned alleged ‘locking on’ and assorted ‘public order’ offences.
Days later, the police decided not to charge the main anti-monarchy protestors. That was never the aim, though. It was unlikely that the police or the Crown Prosecution Service would decide to charge most of those arrested and proceed to the scrutiny of a criminal trial. Reading between the lines, the unofficial purpose was to create a chilling effect in a different way. The police simply remove protestors from the streets for a few hours and then release them. The 2023 Act has set the threshold so low that the prospect of accountable policing shrinks to nothing.
This case study reveals important issues regarding the 2023 Act itself and the intentional use of the early stages of the criminal process to deter protest. On this front, the ultimate solution lies with Parliament. Unfortunately, even high-profile members of the opposition tread too carefully, more concerned with respect for mourners than with abuse of police power.
In short, the coronation offered a dangerous illustration of what the 2023 Act means in practice. Politicians and legislators pay a great deal of attention to the apparent erosion of ‘free speech’ in universities and in popular culture. Yet, when faced with anti-monarchy protests, they resort to age-old mechanisms to silence political views. The use of the criminal law in recent years emphasises that speech is free so long as it doesn’t upset the powerful. Rather than limit themselves to the softness of ‘cancel culture’, those in power use their hardest and most dependable friend: the police.