As Serious Disruption Prevention Orders come into force in Britain, GMLC campaign volunteer lead Jacob Quested Khan updates us on the Act as it now stands, and the risk the new measures pose to protest rights.
“Governments are obliged to facilitate peaceful protests, while, of course, protecting the public from serious and sustained disruption. But the grave risk here is that these orders pre-emptively limit someone’s future legitimate exercise of their rights” – UN High Commissioner on Human Rights, 2023
Background
The Public Order Act 2023 (‘The Act’) is now law. In a previous article by GMLC we highlighted concerns when the Act was being debated in Parliament in September 2022. At that time, the Public Order Bill was passing through Parliament, including various late-stage amendments. These were reintroductions of powers which failed to make it into the Police, Crime, Sentencing and Courts Act 2022.
On 2 May 2023 the Public Order Act 2023 was voted through Parliament and came into force on 5 April 2024. The Act was watered down to some extent by the House of Lords.
Despite the amendments made by the House of Lords, GMLC is concerned that hard-won rights have still been limited by the Act. Serious Disruption Prevention Orders (SDPOs) – a.k.a. ‘protest banning orders’ – are amongst the most concerning of measures the Act introduces.
SDPOs appear to have been modelled on orders such as Football Banning Orders and Anti-Social Behaviour Orders (ASBOs).
Serious disruption prevention orders
Powers
A court is able to impose an SDPO if person aged 18 or over is convicted of:
- committing a protest-related offence or a protest-related breach of an injunction,
- carrying 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, or
- causing or contributing to the commission by any other individual of a protest-related offence or a protest-related breach of an injunction, or the carrying out by any other individual of 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.
An SDPO can also impose requirements and prohibitions to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from:
- a protest-related offence,
- a protest-related breach of an injunction, or
- activities related to a protest.
This is on conviction or application by specified categories of people, the majority of which are police.
An SDPO can last between 1 week and 2 years.
Per Part 2 of The Act, there are serious consequences of breaching an SDPO: 6 months’ imprisonment, an unlimited fine or both.
What are the effects of SDPOs?
Limiting association
Part 2, s22 of the Act sets out the provisions an SDPO can include:
The prohibitions imposed on a person (“P”) by a serious disruption prevention order may, in particular, have the effect of prohibiting P from—
(a) being in or entering a particular place or area;
(b) being in or entering a particular place or area between particular times on particular days;
(c) being in or entering a particular place or area between particular times on any day;
(d) being with particular persons;
(e) participating in particular activities;
(f) having particular articles with them;
(g) using the internet to facilitate or encourage persons to—
(i) commit a protest-related offence or a protest-related breach of an injunction, or
(ii) 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.
The obvious effect of banning someone subject to SDPO from being with ‘particular persons’, being in or entering a particular place, is preventing their freedom of association. Clearly these orders can be used by police to pre-emptively frustrate and prevent protest, but also other forms of social life and community.
Requirements to report at police station or at certain times or even “to remain at a particular place for particular periods” are further ways SDPOs can be used to stop someone taking part in protest.
The effect is to limit the possibility of effectively organising political demonstrations or activities, but it has the side-effect of preventing people from engaging in even social activities with friends who are political activists or protesters themselves.
In the modern world, one of the main means of organisation is online and/or through social media. New powers potentially inhibit and undermine this.
The requirement to provide details of ‘ringleaders’ of demonstrations, protests or organised gatherings (via a requirement to name a ‘responsible person’ in the organisation and/or details of name/address/organisation address) means that SDPOs could be used as a form of surveillance.
It could even affect those not formally a member of a particular organisation as, for example, it is now an offence to use the internet to facilitate or encourage individuals to commit a protest-related offence. Consequently, it seems simply re-posting an article by or about a protest organisation on Twitter or Facebook could count as one strike towards an SDPO.
Wide-ranging and Arbitrary
As identified in the Government’s own summary introducing the new powers: “there is no exhaustive definition of serious disruption. Other activity could be considered serious, depending on the circumstances.”
As a result, and due to the wide drafting including a lot of vagueries (such as “likely to result in” being part of the legal test), there is a very wide scope for these new powers to be used. This leads to a lack of certainty for the public and plausible concerns that the law could encompass activity that would not generally be considered protest-related.
Indeed, there are concerns that the powers afforded to the police by the Act are quite arbitrary. In essence, they are vaguely worded and respond to a potential act not yet carried out. A chief officer of police is able to apply to courts to renew an SDPO if they “believe that the individual is in, or is intending to come to, their police area”. They give great power to police to determine the rights of others. In an era when police conduct is increasingly under scrutiny – following the murder of Sarah Everard, the continuing Spycops Inquiry, and campaigns against the recent spate of deaths following police pursuits – there are questions around the police’s use of powers afforded to them / being afforded greater powers.
‘Two or more people’
Conceivably, there is an almost endless list of activities that could annoy or inconvenience people, meaning it is likely very easy to be in breach of an SDPO. Causing annoyance to two people could be a protest-related offence.
Limiting rights
It is possible that the Act is incompatible with international obligations and human rights protections, particularly rights in the European Convention on Human Rights (ECHR) to freedom of expression (Article 10), peaceful assembly and association (Article 11) and so likely to be subject of legal challenge.
The effects of the law have drawn international consternation, including by United Nations (UN) High Commissioner for Human Rights, Volker Türk:
“This new law imposes serious and undue restrictions on these rights [freedom of expression and association] that are neither necessary nor proportionate to achieve a legitimate purpose as defined under international law. This law is wholly unnecessary as UK police already have the powers to act against violent and disruptive demonstrations.”
Conclusion
The chilling effect of limiting the ability of citizens to protest, assemble and express their views should be of grave concern to all who might find their ability to push for their cause is not only limited but possibly – in effect – banned. It dissuades protest and assembly, on pain of criminal sanctions for a civil infraction.
The clear effect of SDPOs’ introduction is to provide police with powers to target and neutralise protest movements and their members in a way which renders them ineffective. The ambit could be even wider due to the vague definitions in the Act and impact on the general public holding (or sharing) views uncomfortable to the authorities. Any limitations on key rights should provide certainty and be necessary and proportionate.
Ultimately, the right to protest is not an inconvenience but a fundamental right. It is protest which has given us so many of our rights and freedoms today – including the right to vote, disabled people’s rights, rights to be openly LGBT – the list could go on. There is much to protest about in today’s world, and GMLC considers that harmful changes to the law to make protest harder should be reversed to protect fundamental freedoms.
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Image credit: Bob Bob, Flickr, 2010. Police lines in Westminster for student protests.
