The police don’t understand the law – of course they’re not upholding it
The way the authorities deal with disruptive protests is at significant odds with the mood of the public. A landmark report published this week by Policy Exchange revealed that a substantial majority of people would drop their plans to visit a nearby city if there was a major protest happening. Over two thirds of people would decide not to travel with small children, a disabled person or an elderly person.
The public overwhelmingly support police intervention at disruptive protests – over seventy-five per cent of people said that the police should intervene when protestors cause damage to property, approach passers-by to shout at them or deliberately obstruct the road or public transport network.
Yet despite the overwhelming evidence of the impact of disruptive protests and the public’s support for action to be taken to deal with protestors, the authorities have, too often and wrongly, failed to prioritise ordinary members of the public over the “rights” of disruptive protestors.
The new Labour Government will soon commence a review of the legislation relating to protest. The Government has also chosen to continue their appeal in a high-profile court case against the campaign group Liberty, which addresses a key piece of secondary legislation relating to how the disruption caused by protests is defined.
The Government must take a clear view – through both legislation and the subsequent actions of the authorities – that they will prioritise the rights, wellbeing and interests of ordinary members of the public. If they do not, they risk finding themselves in the same difficulties as their predecessors.
The legal regime governing the policing of protests has become increasingly complex – involving a patchwork of UK legislation, guidelines, European Court of Human Rights and domestic case law. This framework does not make it easy to understand what the law requires and permits.
Central to the police’s approach to dealing with protest has been that they frequently misunderstand the law. Core to that misunderstanding is the claim, often solemnly invoked by senior police officers, of a “right to protest”. This is despite there being no such explicit and unfettered right in legislation – including the European Convention on Human Rights or the Human Rights Act 1998.
Instead of any explicit “right to protest”, the key rights applicable to protestors are the right to freedom of peaceful assembly and association, and the right to freedom of expression. Both are explicitly qualified by restrictions as “prescribed by law and are necessary in a democratic society”, amongst other things, “in the interests of national security…, or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the…rights…of others”. These qualifications, despite their central importance, are all too often overlooked.
As far back as 2021, an inspection into the policing of protests by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, said: “…the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protestors when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.” And yet too little has changed over the last three years.
In one of the most egregious scenes of the last year, a group of men chanted “jihad, jihad” at a protest in central London by the now prohibited group Hizb-ut-Tahrir. Although police officers were present, they took minimal action and made no arrests. This gathering took place at the fringes of one of the large-scale protest marches which have regularly occurred over the last year – in advance of which the Met had declared that they would be “protecting the right to protest”.
The Met subsequently attempted to explain their lack of action on “specialist counter terrorism officers in the operations room” who failed to “identify any offences”. They then later passed the blame on – citing “advice from lawyers and the Crown Prosecution Service”.
That the police and prosecutors reached such a conclusion was remarkable. It would certainly appear that they were credulous or indulgent in response to what is by any reasonable understanding, a call to violence. At the very least it would have been reasonable for officers to arrest those shouting for “jihad” at a politically motivated protest on suspicion of committing offences under section 1 of the Terrorism Act 2006 which prohibits statements directly or indirectly encouraging acts of terrorism.
The Metropolitan Police has since acknowledged that it has made mistakes in the policing of protests. When I interviewed the Met’s most senior officer for public order policing, assistant commissioner Matt Twist, in May this year he told me: “When we look back at the policing of protests over the last 8 months, we know we didn’t get everything right – particularly in the early stages in October.” In relation to this particular case, he said: “On occasion we did not move quickly to make arrests, for example the man chanting for ‘jihad’ which was a decision made following fast time advice from lawyers and the CPS.”
It is to Mr Twist’s credit that he is willing to publicly acknowledge the mistakes that have been made. However, as we approach both the second anniversary of the start of Sir Mark Rowley’s Commissionership and the first anniversary of the 7 October terrorist attacks, the public’s willingness to forgive the Met any further such mistakes is surely over.
David Spencer is the head of crime and justice at Policy Exchange and a former Detective Chief Inspector with the Metropolitan Police