Serious Disruption in Protest – Braverman’s Contradictory Logic
Back in June, Parliament approved a Statutory Instrument (SI) to amend the meaning of ‘serious disruption’ in relation to the powers police have to regulate protest.[1] This SI has been controversial for a number of reasons, including that it introduces into primary legislation an amendment that was rejected by Parliament as part of the Public Order Bill earlier this year. However, this post will not address the constitutional issues surrounding the SI, but rather how its contents interact with the ‘Ziegler defence’.[2]
Ziegler was a Supreme Court case which held that regarding the offence of wilful obstruction of the highway, the lawful excuse defence could permit a reliance upon article 10 and 11 ECHR rights.[3] It held that where disruption is more than minimal (i.e. disruptive), reliance upon article 10 and 11 rights as a lawful excuse could still be possible. This was subsequently interpreted to mean that where an offence provides for a ‘reasonable’ or ‘lawful’ excuse, a Ziegler defence may be capable of arising – though this will depend both upon the nature of the offence itself, and the individual contexts of cases.[4]
Into this mix, the new SI has now provided police with the power to impose conditions upon processions and assemblies where they have reasonable belief that they may cause more than minor disruption to the carrying out of day-to-day activities – the making of a journey is given as an explicit example.[5] A breach of conditions is a criminal offence, to which there is no lawful or reasonable excuse defence.[6] Therefore, the police have the power to prevent protest activity that may cause more than minor disruption despite Ziegler stating that a defendant may rely upon their article 10 and 11 rights in causing disruption that is more than minor – at least in relation to wilful obstruction of the highway. It should be noted that an organiser of a protest faces up to 51 weeks in prison for breaching conditions.[7]
There has been no judicial interpretation of ‘day-to-day activities’ as stated in the SI. I will assume it refers to lawful activity that is conducted by the community and will not assume that it needs to literally occur every day to be considered as ‘day-to-day’. The first contradiction that arises is that following Ziegler, protest that causes more than minor disruption to the highway in relation to a charge of wilful obstruction can be lawful. It can therefore be afforded the protection against being disrupted as provided by the SI. Following this logic, if the police impose conditions, thereby disrupting the lawful activity of the protesters, they have caused more than minor disruption to the protesters – the very thing that the conditions are seeking to prevent. This contradiction does not appear to be reconcilable unless one considers Ziegler to have been overruled by the SI. However, for secondary legislation to overrule a Supreme Court judgment without explicitly saying so would be an odd thing.
There is also another flaw in the logic behind this SI. Given that the Home Secretary has been clear that it is the tactics of Just Stop Oil and their continuing slow march protests in London that are being targeted, one has to wonder whether her logic holds up. If Just Stop Oil were causing serious disruption, their actions would likely not be permitted under the Ziegler defence and they could be arrested for wilful obstruction of the highway. If their protest activity was causing genuine serious disruption, then s.12 conditions could be imposed upon them under the old version of the Public Order Act as well – in fact such conditions were imposed regularly across London upon Just Stop Oil slow marches even before the SI came into force. A cursory glance at the Met’s twitter feed can demonstrate this. By claiming that the police cannot deal with these protests, the Home Secretary is impliedly admitting that they do not cause serious disruption. And yet, frequent statements in the House of Commons say that the reason for these new regulations is the dangerous and serious impact of such disruption. Braverman stated on 12th June that ‘the impact of these disruptions is huge’.[8] This a contradiction. If they caused serious disruption – according to its natural meaning – the police already had the power to deal with them. So where is the need for the new definition?
The new regulations are creating a legal fiction whereby the meaning of ‘serious disruption’ is reduced to that which is more than minor. How the Zeigler defence will stand-up in light of this is unknown. The police have a duty to act in accordance with protesters ECHR rights under s.6 Human Rights Act, which means they must balance the rights of protesters with that of others. On the one hand you have the courts stating that more than minor disruption can still be permitted in reliance upon article 10 and 11 rights. On the other you have legislation declaring that anything more than minor may now be considered serious, such that a consideration of article 10 and 11 rights would become effectively redundant unless the protest amounted to nothing more than waving a banner at a passing car. Even then, block more than a few people from using the pavement and more than minor disruption may have been caused to day-to-day activities. The result is likely to be greater confusion, for both the police and protesters.
[1] The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (SI 2023), SI 2023/655.
[2] Director of Public Prosecutions v Ziegler [2021] UKSC 23, [2022] AC 408.
[3] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended).
[4] Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (NI Abortion Services) [2022] UKSC 32.
[5] Public Order Act 1986 (POA 1986), s 12(2A)(a)(i).
[6] POA 1986, ss 12(3)-(5A).
[7] POA 1986, s12(8)(a).
[8] HC Debate 12 June 2023, vol 734, col 54.
