Freedom of Assembly and Peaceful Protest in the UK 2024

Freedom of assembly includes taking part in public meetings, processions and demonstrations- all necessarily regarded as fundamental to the functioning of democratic societies^[1]. The flourishing of political parties and pressure groups depends on freedom of assembly. However, the history of freedom of assembly in England is full of important distinctions and even contradictions resulting in the  liberty of the subject becoming terribly blurred and distorted. Freedom of assembly is described as a liberty rather than a right in English law. The description of “liberty” prevailed before the European Convention of Human Rights and the Human Rights Act 1998.  What did “liberty” mean in practice? One way to understand  “liberty” is to view English law as allowing freedom to do anything provided it was  not expressly  prohibited by law^[2]. Freedom of assembly based on a “liberty” is difficult to define and particularly vague when the law could set boundaries on public conduct and recently, even  specific  constraints on  what the freedom of assembly might include^[3].  English legal history shows how limitations on freedom  were commonplace, from both the common law as well as statute^[4]. Thus, freedom of assembly appears to be highly residual  and  subject to limitations imposed by law^[5]. Tensions between peaceful protests and their inevitable counter protests show how peaceful protest is often contested and left to the difficult and unenviable discretion given to police officers. The law of public order is a myriad of legal powers that accompany the maintenance of the rule of law. A peaceful protest may very rapidly descend into an unlawful assembly leading to riots and civil disturbances.  Riotous acts may spring from an unlawful assembly, and can rapidly  lead to public disturbances,^[6] fear and violence. Historically, many  political, social, and economic causes underline many protests. Contemporary Britain has witnessed demonstrations in support of addressing climate change and opposition to racism resulted in disturbances when those opposed also demonstrate. A fine line exists that are between legitimate protests and illegal protests.

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Historical events

Accounts^[7] of British history are rich in the descriptions and depictions  of protests and public gatherings^[8]. European events, most notably the French revolution in 1789,  over-shadowed the British state,  particularly during the nineteenth century. Unrest and unhappiness prevailed in the work -place and in many aspects of public life. Labour disputes led to dismissals and lock- outs. Often counter-demonstrations disrupting peaceful protests would raise passions and inflame opinions. In England, rising food prices  after a succession of poor harvests promoted fears, rumours and anxieties that armed insurrection was afoot. Examples abound of crowds and protests. For example in the Autumn of 1795,  a crowd of about 200,000 broke the windows of Sir William Pitt^[9], the Prime Minister’s, official residence, in 10, Downing Street, London. Many political societies emerged with strong mandates for change. Republican sentiments grew from revolutionary France, especially when conflict grew during the time of  wars with France. Networks of spies and informers gave Pitt some influence over public events. Repressive legislation  and prosecutions were used to control protests and riots. Examples included the Seditious Meetings Act limiting the size of public meetings, Anti-combination Act of 1799 and 1800 that banned associations and  Treasonable Practices Acts which penalised anti-state acts. Habeas corpus was regularly suspended. Against such state intrusions juries often acquitted the accused and Judges in some cases were prompted to set limits against excessive powers.

In 1800, when Ireland  controversially, was  assimilated into the British state through an Act of Union, unrest followed. The long expected Catholic Emancipation was delayed and did not come to fruition until 1829. The outcome of the Union was predictable as popular discontent increased, mainly against English rule and London. In 1791 the United  Irishmen was founded following the French Revolution in 1789, and empathised the revolutionary zeal commonly  found in France in the 1790s^[10]. Catholic groups followed a form of nationalism that sought repeal of the Union in contrast to  the  Orange Order (founded in 1795) which became increasingly linked to protecting the Union. Sectarian bloodshed became common and religious hatred fuelled violence and conflict. Subversion in Ireland continued throughout the nineteenth century and endured to the break- up of the Union and the creation of Northern Ireland after 1920. The residue of sectarianism remains even today.

Public perception in England basked on myths  and self-belief that there was a coherent and stable nation united under a single Parliament and Monarch, driven by liberalism and altruism. Social divisions and class differences were often ignored, education and social deprivations were too often overlooked. Race and ethnicity were often the subject of suspicion and fear. Anti- discrimination legislation had to be passed in the 1960s^[11].

The long history of riots^[12] can  be traced back to as early as in 1381. The early riots were  in opposition to a newly introduced poll tax used to raise additional revenue. The poll tax was widely unpopular and seen as unfair. The taxes were believed to be a means of keeping peasants under control  by the landed classes, the main beneficiaries of the poll tax revenue. Then 1,500 were killed out of 60,000 rebels as the authorities struggled to control events.  In 1990 a similar form of Poll tax was levied in Scotland, and similarly seen as unfair^[13] Over 200,000 attended a rally in London  that resulted in 113 people injured and over  339 arrests.

Prominent examples of public unrest are well documented in the National Archives in London and the main archives are accessible to the public, or online^[14]. A few of the most famous deserve a brief mention.

The Peterloo Massacre in 1819 arose from a meeting of 70,000 people in Manchester to hear a speech supporting electoral reforms to broaden the franchise which at that time was restricted to  wealthy men. The military were called and the resultant cavalry charge  killed and injured many who attended.

The General Strike in 1842 resulted in public meetings and demonstrations in favour of better wages. Half a million people protested that is about one in fifty working people. The protest was linked to the Chartist movement  which called for universal suffrage, a secret ballot and better pay and conditions for workers. The Strike succeeded in gaining a modest pay rise.

Votes for women was strongly opposed, leading to violence and unrest during countless demonstrations. Votes for women were not granted until 1918, but for all women  not until 1928. Little might have been achieved were it not for Emily Wilding Davison who threw herself in front of the King’s horse, at the Derby,  in 1913 demanding suffrage for adult women. She died of her injuries four days later^[15]. Women gradually assumed more equality, but this was a slow process. The Matrimonial Causes Act 1957  divorce was only possible through an Act of Parliament. Equality legislation has also taken time and efforts through popular protests.

In 1963 public protests against the discriminatory practices of the Bristol Bus Company  which did not employ Asian or Black crews, resulted in the company backing down. It is clear that public protest formed a challenging but also significant part of the daily life of the nation. Later the Race Relations Act 1965 and 1968 were passed because of widespread discrimination.

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Contemporary protests and costs

Over recent years there have been many instances where public protest is said to be too liberally interpreted with not enough attention paid to the question of disruption and its consequences. This counter-narrative against a permissive view of freedom of assembly has gathered traction. Climate change protestors, including Just Stop Oil and others have been accused of causing excessive costs and inconvenience. A strong counter narrative has developed placing restrictions on peaceful protest. The ingenuity of protestors has in fact exceeded traditional responses of police forces. It is also clear that costs and expenses of policing public demonstrations are significant.

There is a lot of statistical information on the costs of peaceful protest, which has become a major issue of contention.

·       From 1^st October to 14^th December the Met Police arrested 730. Policing protests  cost £7.5 million to taxpayers;

·       Protests required the presence of 13,600 police officers to police; Protests against the construction of HS2 Ltd., responsible for the new fast train link between London and Birmingham cost £146 million in  measures needed to police the protests.

The legislative framework is found in the  consolidated Public Order Act 1986 . The Act requires protests to be publicly notified to the police. The time and nature of the protest and the route of the march have to be included in the notification. Various conditions on public protest may be made at the discretion of the police. If there is a risk of serious public disorder then the protest march can be banned. Included are issues about serious disruption. These powers have been broadened  by the Police, Crime and Sanctioning and Courts Act 2022 allowing  the use of a statutory instrument, a form of delegated legislation under the 2022 Act providing additional general discretionary powers.  The statutory instrument  provides the authorities with additional powers when required, largely at the discretion of the Home Secretary at the request of the police.

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Contemporary public order and protest

Major changes were made in the Public Order Act 2023^[16].  This Act has proved to be pathbreaking and also controversial especially over concerns if the Act is compatible with the  Articles 10 and 11 of the European Convention that protects an individual rights to freedom of expression. The question of compatibility with human rights has yet to be considered fully by the  senior Appeal Courts. The powers under the Act are in the process of fully coming into operational force. There are broadly defined measures to prevent protestors locking on or attaching themselves to objects or buildings. The most controversial part was the proposed reduction of a threshold for the police in imposing conditions amending the Public Order Act 1986 which was frustrated, when it was rejected in the House of Lords.^[17]  Since then the Home Secretary attempted to bring in amendments to the Act amending the definition of a serious disruption under what are called Henry VIII powers that is through secondary legislation. The administrative court said that this was illegal but the case is now on appeal^[18].  Nevertheless, the Public Order Act 2023 created new offences including  the obstruction of a major transport works such as HS2. New offences were created such as interfering with key national infra-structures. Also some offences such as causing serious disruption by tunnelling were created. There are extensive stop and search powers ad new serious disruption order to target repeated attempts by individuals to engage in disruption. Various powers are given to the London Transport Police. The Secretary of State for transport may bring civil proceedings and also in the case of abortion clinics safe zones to prevent protests. There are also some protections given to journalists to allow journalists to report events or observe protests. Powers to issue serious disruption orders to allow the courts to set restrictions on protestors  and any related activities. Breaching such an order is penalised by the application of the criminal law.  There are also various civil penalties including damages for breaching instructions or conditions set by the police. A plethora of new offences such as obstructing the highway,  causing a public nuisance and aggravated assault were created.

The College of Policing, the professional standards body for policing,  has set some useful guidance for the police to use their powers.  The police have generally tried to set a balance between the rights of protest and the prevention of widespread disruption. There is a need for Post Legislative scrutiny to be applied to the working of the 2023 Act and for the Act to be monitored.

Existing police powers include stop and search  that stem from earlier times such as section 36 of the Metropolitan Act 1839. These powers were extended and updated under the Police and Criminal Evidence Act 1984. This includes the use of reasonable force. The gradual growth in powers and their application is a long- standing feature of this area of law.  Thus wilful obstruction of a highway is not confined to protest. There are complex rules for setting conditions for marches and demonstrations including obtaining prior conditions. Balanced against this the police have duties not to hinder or restrict peaceful protest that may only be exercised for a legitimate aim and is proportionate (see the Human Rights Act 1998).

Three contemporary examples  on the application of the right to protest are worth considering^[19]. The first is the rise of climate change activism,  the second is the protests against the Gaza war in Israel, the third is the riots in early August 2024. In all three cases, the role of the police proved complicated and challenging. Recognising the right to protest requires the police to act proportionally and to make reasonable adjustments to the application of their powers. Maintaining a balance between protest and preventing violence or damage to property has proved difficult. The scale of the protests set new challenges for manpower resources and its allocation.

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Climate change activists and others

Organisations such as Just Stop Oil have become increasingly active, with frequent and well organised protests.  Their activities included  disruption and the closing of roads and interruption of highways including the construction of HS2, the fast train service to London from Birmingham. The National Highways Ltd ( NHL) and HS2 have adopted a proactive stance by seeking injunctions against the protestors. Individuals and groups have found that costs have been made against them to cover legal action^[20]. Many Stop Oil protestors have been convicted  of disrupting the highways and in some cases have received high prison sentences.

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Gaza protests and Israel

Protests in London followed the terrorist attack in Israel by Hamas on 7^thOctober 2023 In the UK Hamas is a banned group. Demonstrations between 7^th October 2023 to 6^th December 2023 included 900 marches. In some cases very few arrests have been made but in others for example 1^st December 2023 there had been 289 arrests. Most protests were peaceful but the costs of policing are increasing. Concerns about protests had become highly political with party political differences becoming more marked. The use of CCTV made it possible to identify wrongdoers and minimise any intervention when there were large crowds. On the positive side organisers met with the police and made necessary adjustments to their plans. From 7^th October to 6^th December 2023, 26,382 officer shifts were needed to police demonstrations.

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‍The August Riots 2024

The 2^nd and 3^rd of  August 2024 saw rioting across many cities and towns  on a scale not seen for some time The outbreaks appear to have been fuelled by fake news on social media, and false accounts as to who was responsible for the  horrifying killing of  three children on July 29^th. The scale of the violence was troubling with attacks on Muslim buildings, mosques and places where asylum seekers were being re-housed attacked.  Counter demonstrators stepped into protect their local communities and many community leaders came together to condemn the rioting and object to outsiders coming into communities to stir up hatred and trouble. The police estimate that over 22 towns saw riots and the spread of the violence took everyone by surprise. Riots around race are not new or unusual with the largest  in 2011 over the police shooting a black man. Five others lost their lives during the riots.  Today, public concerns have grown about social media and its apparent resistance to  effective self-regulation of the contents of messages and accounts. The “far-right” is seen to be responsible and attributions of blame have entered the political mainstream. Blame has fallen  on poor controls over immigration policy and many argue that politics should be developed for the expulsion of migrants. How to describe the criminal actions of many has also become part of the politics of the time. No longer can EU membership be blamed for immigration after the UK left the EU in 2016.  The new Labour government, in office since 4^th July 2024, acted to  provide a forum for  the exchange of views and headed by the then Director of Prosecutions in  office during the 2011 riots, is now the current Prime Minister. The 2011 experience  was helpful and  undoubtedly influenced the government’s view that “ criminals and thugs” best described the  rioters  and the attackers on Muslim properties in 2024. In 2011 over 1,100 people were charged and most convicted. In 2024 that number is likely to be exceeded. Fast tracking the crown’s prosecution of perpetrators, who may receive prisons sentences of three to six years have already imposed^[21]. The use of fast tracking for trials of serious offences has a long history, it was advocated in the 1920’s by Winston Churchill and used when riots and unrest resulted in serious offences^[22]. The result of the fast- tracking offenders has been to reduce the number of riots very rapidly and soon  rioting stopped altogether^[23]. The question of underlying causes and prevention has yet to be addressed. Many who oppose migration have not been rioting. Many who take part in  riots are from deprived towns such as Hartlepool , Hull, Liverpool and Middlesborough. Age groups matter with people who are over 65  generally said to be against much migration. These views, for the most part, stop short of participating in any violence. There is general public support  for long prison sentences and many communities have taken steps to defend their communities against rioters from outside the area.

The modern version of “traditional” riots has a worrying but distinctive element – that is the largely unregulated use of social media.  The government plans to address the issue of regulating social media to make hate crimes and the dissemination of hatred to become more difficult in the future. That will be a major challenge for the current government.

Conclusions

Freedom of expression is a difficult and complex subject with diverse political views on the pros and cons of allowing latitude for freedom to protest. Interpreting such powers focused under the conditions of controlling and tracking protests are not easy. The powers under the new Public Order Act 2023 have been criticised by Amnesty International and many international human rights organisations and groups^[24]. However, the test of the effectiveness of the law and its application largely depends on police discretion. The passage of the Human Rights Act 1998 has created a new era of balancing rights, applying the law proportionally, and allowing freedom of expression to be calculated in terms of the public interest. Dealing with the August 2024 riots and unrest has proved complicated and challenging. Public opinion gave a positive response to the police and on the whole, the police received praise and thanks for restoring order. The police secured much community support and counter-demonstrations against the far-right supporters of the riots stepped into support and protect the Muslim community who bore  much hatred against their community.

Overall the allegations by far -right  supporters that the police have a “two tier” approach to policing were strongly rejected by police chiels. On sentencing comparisons between the sentences giving to rioters and climate change supporters allege that climate change supporters received tougher sentences^[25]. It is hard to be certain but a healthy debate is needed.

An important aspect today is the role of cameras and surveillance systems that are allowing the police to make arrests and detect law breakers. This may act as a deterrent to law breakers and provide a means of ensuring some form of restraint on violent acts.

There remains some serious issues about the regulation of fake news and  the communication of information that is intended to stir up hatred or abuse. At all levels, nationally and internationally the rise of social media sets challenges for society to balance  freedom of speech against the need to protect groups and individuals who are targets of abuse and hatred.  The spectrum of legal, social and political considerations are complex and mature debate and action are essential.

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^[1] O Hood Phillips and Paul Jackson, Constitutional and Administrative Law London: Sweet and Maxwell, 1987 chapter 25.David Feldman, Civil Liberties and Human Rights in England and Wales second editin.2002 chapters 17 and 18.  K. Ewing and C.A Gearty. The Struggle for Civil  Liberties 1914-1945 Oxford: Oxford University Press, 1999.

^[2] Beatty v Gillbanks (1882) 9 QBD 308 also see: Wise v Dunning [1902] 1 KB 167, Duncan v Jones [1936] 1 KB 218. Rex v Pinney (1832) 9 B &AD 947.Lynch v Fitzgerald and others [1938] I.R. 382.

^[3] See the Public Order Act 2023.

^[4] See case law and discussion  in O Hood Phillips and Paul Jackson, Constitutional and Administrative Law London: Sweet and Maxwell, 1987 chapter 25.

^[5] See: K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties  1914-1945 Oxford, 2000. Pps 261-270.

^[6] Amnesty International , Your Right to Protest London 2024

^[7] J.W.F. Allison, The English Historical Constitution Cambridge, Cambridge University Press, 2007.

^[8] K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties  1914-1945 Oxford, 2000. D.L.Keir and F.H Lawson, Cases in Constitutional Law Oxford: Oxford University Press, 1967.

^[9] Sir William Pitt, 1783-1801, 1804-06. PM during the French Revolutionary and Napoleon wars.

^[10] David Cannadine, Victorious Century The United Kingdom 1800-1906  Penguin, Alen Lane Penguin, 2017 pps 17-19 The French National Assembly had sent message of support to the United Irishmen.

^[11] Race Relations Acts 1965 and the Race Relations Act 1968.

^[12] The Levellers  (1647), the Peterloo Massacre 1819. See:  D. Cannadine, Victorious Century The United Kingdom 1800-1906  Penguin, Alen Lane Penguin, 2017 pps.30-31

^[14] https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nationalarchives.gov.uk%2Feducation%2Fresources%2Fprotest-democracy-1818-1820%2F&data=05%7C02%7CJ.F.McEldowney%40warwick.ac.uk%7C2ed2f350f40b4bb46bbf08dcbd3409c9%7C09bacfbd47ef446592653546f2eaf6bc%7C0%7C0%7C638593278395662183%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=guIz0VZbp%2B%2FQIYwHEpLdPfC%2FC49tKZ5CPap1zhykmcM%3D&reserved=0

^[15]  See the National Archives collection on Famous Moments in British Protest History

^[16] House of Commons Library, Police Powers: protests Research Briefing 3^rd August 2023 Number SNO5013.

^[17] The Guardian 21^st May 2024 “Suella Braverman acted unlawfully by making it easier to criminalise court rules”. See: The King (application for the National Council for Civil Liberties) V Secretary of State for the Home Office [2024] EWHC 1181.

^[18] Ibid.

^[19] See: House of Commons Home Affairs Committee, Policing of protests 3^rd Report Session 2023-04. HC 369.

^[20] The Guardian, “Climate activists  in frame for £1 million costs of protest bans run up by UK’s biggest law firm”,  16^th August 2024.

^[21] The Guardian 22^nd August 2024

^[22] See; Thomas Jones, Whitehall Diary Volume 111 Ireland 1918-1925 London: Oxford University Press, 1971 pps 19-21.

^[23] See: The Economist 17^th August 2024, “The Response to the riots” pps 17-18. Also see: The Economist 10^th August 2024 “The extreme right” pps19-20

^[24] Ibid.

^[25] The Guardian 22^nd August 2024 “Jail term for a climate protestor, 77, is disproportionate..

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