Policy paper

Public Order Bill: European Convention on Human Rights memorandum

Updated 30 August 2023

Applies to England and Wales

Summary of the Bill

1. This memorandum addresses issues arising under the European Convention on Human Rights (“ECHR”) in relation to the Public Order Bill. It has been prepared by the Home Office. On introduction of the Bill in the House of Commons, the Home Secretary (the Rt Hon Priti Patel MP) made a statement under section 19(1)(a) of the Human Rights Act 1998 (“HRA”) that, in her view, the provisions of the Bill are compatible with the Convention rights.

2. The Bill will provide the police with new powers to better balance the right to protest peacefully with the rights of the general public to go about their daily lives free from serious disruption or harm. It will build on the public order measures in Part 3 of the Police, Crime, Sentencing and Courts Act 2022, taking account of the disruptive and dangerous tactics employed in recent months by protest groups such as Extinction Rebellion, Insulate Britain and Just Stop Oil. The Government had originally sought to bring forward the majority of the proposed measures as amendments to the Police, Crime, Sentencing and Courts Bill, but they were rejected by the House of Lords (Official Report, 17 January 2022, columns 1430-1476).

3. The Bill includes the following measures:

a. Offences related to locking on – creating two new offences designed to deter individuals from ‘locking on’ and ‘going equipped to lock on’. Locking-on is the tactic in which protesters attach themselves to other individuals; objects; or land, or attach objects together; or to land, creating an obstruction which is capable of causing serious disruption and is difficult and time consuming for the police to remove.

b. Obstruction of major transport works – creating a new offence of obstructing the construction or maintenance of major transport works.

c. Interference with key national infrastructure – creating a new offence which covers any behaviour which prevents or significantly delays the operation of key infrastructure, defined as including airports, railways, fuel and energy infrastructure and printing presses.

d. Powers to stop and search – extending existing stop and search powers to allow the police to search and seize objects made, adapted, or intended for use in the course of specified protest-related offences. There will be both a suspicion-led power, amending section 1 of the Police and Criminal Evidence Act 1984 (“PACE”), and a suspicion-less power.

e. Serious Disruption Prevention Orders – introducing a new preventative court order – the Serious Disruption Prevention Order (“SDPO”), aimed at tackling repeated highly disruptive behaviour related to protests.

f. Power of chief officers of police to delegate certain functions under the Public Order Act 1986 - amending the seniority of police officer in London who may attach conditions to an upcoming protest or prohibit a trespassory assembly to match that applicable in forces outside of London. (The current minimum rank of Assistant Commissioner will be changed to that of Commander, which is equivalent to Assistant Chief Constables, who are able to perform these functions in forces outside London.)

4. The Government considers that clauses of the Bill which are not mentioned in this memorandum do not give rise to any human rights issues. The Convention rights raised by provisions in the Bill are: liberty and security of person (Article 5); fair trial (Article 6); private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of assembly (Article 11); and Article 1 Protocol 1 (peaceful enjoyment of property).

Clauses 1 and 2: Offences of locking on and being equipped for locking on

5. Clause 1 creates a new offence of “locking on”. A person commits the offence if they attach themselves, a person, or an object to another person, object, or land, and it causes, or is capable of causing, serious disruption to two or more individuals or an organisation in a place other than in a dwelling. The person must intend or be reckless as to the causing of serious disruption. It is a defence for a person to prove that they had a reasonable excuse for the act of attaching.

6. Clause 2 creates a new offence of “being equipped for locking on”. A person commits the offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of the “locking on” offence.

Article 6

7. Article 6 will be engaged by the investigation and prosecution of both offences; however, the normal safeguards provided for in the criminal justice system will apply.

8. The “locking on” offence provides that it is a defence for a person to prove that they had a reasonable excuse for the act of locking on. The burden of proof is placed on the defendant given the general nature of the defence and the facts as to whether the defendant has a reasonable excuse being within their knowledge. The prosecution must still prove all the elements of the offence to the criminal standard of proof, including that the act caused or was capable of causing serious disruption, and that the person had the necessary mens rea.

9. The Government considers that both offences will comply with Article 6.

Articles 10 and 11

10. The offences could potentially arise in the context of people exercising their Article 10 and Article 11 rights to freedom of expression and freedom of assembly. The extent to which a person’s Article 10 and Article 11 rights will be engaged, will in part depend on the context in which these offences are committed, such as whether such activity was carried out on or in relation to private land.^{[footnote 1]} The Government considers that the offences are sufficiently precise to be foreseeable and that the provisions are in accordance with the law. The offences pursue various legitimate aims, including the prevention of disorder and crime, and protecting the rights of others, and are necessary in a democratic society.

11. The police and the Crown Prosecution Service must not act incompatibly with the Convention rights under section 6 of the HRA when making decisions around arrest, charge and prosecution. The court must also not act incompatibly with Convention rights.

12. Accordingly, the Government considers the offences comply with Articles 10 and 11.

Clause 3: Offence of obstruction of major transport works

13. Clause 3 creates an offence where a person obstructs the construction or maintenance of major transport works, or interferes with apparatus related to that construction. It is a defence if the person can show a reasonable excuse for the activity or that the interference was in the context of a trade dispute.

Article 6

14. Article 6 is engaged as a person who obstructs major transport works commits a criminal offence. It is a defence to show that there was a reasonable excuse for the obstruction, or that it was in the context of a trade dispute, and the usual safeguards provided for in the criminal justice system will apply.

15. As set out in detail in paragraphs 9-11 above, Article 6(2) may be engaged as the burden of proof in relation to the reasonable excuse defence is placed on the defendant, given the general nature of the defence and the facts as to whether the defendant has a reasonable excuse being within their knowledge. The prosecution must still prove all the elements of the offence to the criminal standard of proof.

16. Accordingly, the Government considers the provisions to be compliant with Article 6.

Articles 10 and 11

17. These provisions may be used in the context of protests where people are exercising their Article 10 right to freedom of expression and potentially their Article 11 right to freedom of assembly. These are qualified rights.

18. The offence will be set out in primary legislation and will be sufficiently precise to be foreseeable. The Government therefore considers that the provisions will be in accordance with the law.

19. The offence pursues various legitimate aims, including the prevention of disorder and crime, and protecting the rights of others, and is necessary in a democratic society.

20. The ‘reasonable excuse’ defence will permit a fact-specific enquiry by the court, and enable consideration of the exercise of Convention rights. The clause is proportionate as the court will take into account the specific facts. Further, the offence will only be committed where major transport works, such as HS2, are obstructed. Obstruction of such construction can result in significant delays to such projects, with a high financial cost, and continuing impacts on those living and working in the vicinity.

21. The police and the Crown Prosecution Service must act compatibly with the Convention rights under section 6 of the HRA when making decisions around arrest, charge and prosecution and therefore must do so in a way that is compatible with an individual’s human rights. The court must do the same when carrying out its functions.

Clauses 4 and 5: Offence of interference with use or operation of key national infrastructure

22. Clause 4 creates an offence where a person does an act which interferes with the use or operation of key national infrastructure in England and Wales, intending or being reckless as to whether the act will interfere with the use or operation. Key national infrastructure includes: road transport infrastructure (motorways and A and B roads); rail infrastructure; air transport infrastructure; harbour infrastructure; downstream oil infrastructure, downstream gas infrastructure, infrastructure for onshore oil and gas exploration and production, onshore electricity generating infrastructure, and newspaper printing infrastructure (including the printing of periodicals or magazines). It is a defence if the person can show a reasonable excuse for the activity, or the act is done in the context of a trade dispute. Clause 5 further defines the various types of key national infrastructure for the purposes of the offence.

Article 6

23. Article 6 is engaged as a person who interferes with the use or operation of key national infrastructure commits a criminal offence. It is a defence to show that there was a reasonable excuse for the interference, or that the interference was in the context of a trade dispute, and the usual safeguards provided for in the criminal justice system will apply. The burden of proof in relation to both defences is placed on the defendant given the general nature of the defence and the facts as to whether the defendant has a reasonable excuse being within their knowledge, so article 6(2) may be engaged. The prosecution must still prove all the elements of the offence to the criminal standard of proof. The Government considers the provisions to be compliant with Article 6.

Articles 10 and 11

24. These provisions may be used in the context of protests where people are exercising their Article 10 right to freedom of expression and potentially their Article 11 right to freedom of assembly. These are both qualified rights. The offence will be set out in primary legislation and will be sufficiently precise to be foreseeable. The Government therefore considers that the provisions will be in accordance with the law. The offence pursues various legitimate aims, including the prevention of disorder and crime, and protecting the rights of others, and is necessary in a democratic society.

25. The ‘reasonable excuse’ defence will permit a fact-specific enquiry by a court, and enable consideration of the exercise of Convention rights. The clause is proportionate as the court will take into account the specific facts. Further, the offence will only be committed where the operation of key national infrastructure is interfered with. The normal operation of such infrastructure is vital for activities such as the distribution of essential goods, including food, fuel and medicines and interference can result in significant disruption to the lives of the general public.

26. The police and the Crown Prosecution Service must act compatibly with the Convention rights under section 6 of the HRA when making decisions around arrest, charge and prosecution and therefore must do so in a way that is compatible with an individual’s human rights. The court must do the same when carrying out its functions.

Clause 6: Amendment to section 1 of the Police and Criminal Evidence Act 1984

27. Section 1 of PACE provides that a constable may search a person or vehicle, or anything in or on a vehicle, if they have reasonable grounds for suspecting that they will find stolen or prohibited articles, or certain other articles. A constable must exercise this power compatibly with Convention rights, in accordance with section 6 of the HRA. If during a search a constable finds an article which they have reasonable grounds for suspecting to be such an article, they may seize it.

28. Clause 6 increases the range of prohibited articles that can be searched for under section 1 by adding to the offences listed in section 1(8) (which sets out offences in relation to which the stop and search power applies). These additional offences are:

a. an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;

b. an offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (intentionally or recklessly causing public nuisance);

c. an offence under clause 1 of this Bill (offence of locking on);

d. an offence under clause 3 of this Bill (obstruction etc of major transport works); and

e. an offence under clause 4 of this Bill (interference with use or operation of key national infrastructure).”

Article 8

29. A search under section 1 of PACE may interfere with the Article 8 rights of the person searched. Article 8(2) permits interference with those rights for reasons including the prevention of disorder or crime or for the protection of the rights and freedoms of others. The intention of the amendment of section 1 of PACE is to prevent people from committing the offences set out in new paragraphs (f) to (j) of section 1(8) of PACE, in doing so preventing disorder caused by serious disruption, and protect the rights and freedoms of others whose lives may be serious disrupted should such offences be committed.

30. The stop and search power will be set out in primary legislation through an amendment to section 1 of PACE and therefore the Government considers that it is in accordance with the law. The Government also considers that given the impact these offences could have on others, any interference with Article 8 rights will be proportionate to the legitimate aims set out in the paragraph above.

Articles 10 and 11

31. The use of this stop and search power may arise in the context of people either exercising their Articles 10 and 11 rights to freedom of expression and freedom of assembly, or seeking to exercise those rights. The Government considers that the amended section 1 of PACE power will pursue the same legitimate aims mentioned above in relation to Article 8 and be proportionate.

Article 1, Protocol 1

32. Article 1 of Protocol 1 (“A1P1”) will be engaged by the existing power for the police to seize items they find in the course of a search that they have reasonable grounds to suspect are prohibited articles. Seizure of any articles may constitute an interference with the right to peaceful enjoyment of property.

33. The power of seizure will be in accordance with the law because it is contained in primary legislation and formulated with sufficient precision to enable a person to know in what circumstances it can be exercised. Any interference will be justified by the public interest in protecting public safety and the prevention of disorder or crime. The powers are proportionate because the articles seized could otherwise be used to commit criminal offences, causing serious disruption to the public, and could result in evidence (that would otherwise be missed or subsequently destroyed) being available for use in a criminal prosecution.

Clauses 6 to 9: Power to stop and search without suspicion

34. These clauses allow a police officer of or above the rank of inspector to give an authorisation if they reasonably believe that:

a. particular offences^{[footnote 2]} may be committed or prohibited objects are being carried within the officer’s police area, and

b. the authorisation is necessary to prevent the commission of those offences or the carrying of those prohibited objects, the specified area of the authorisation is no greater than is necessary, and the specified period of the authorisation is no longer than is necessary.

35. When an authorisation is in place, a constable in uniform may stop and search any person or vehicle for prohibited objects, without the need for any grounds for suspecting that the person or vehicle is carrying such an object. There are also associated powers of seizure and retention of anything found in such a search which the constable reasonably suspects to be a prohibited object.

36. The police must exercise the discretionary power to make an authorisation and the discretionary powers to stop and search and seize items compatibly with Convention rights, in accordance with section 6 of the HRA.

Article 6

37. Clause 10 creates a new offence of intentionally obstructing a constable in the exercise of their power to stop and search. Article 6 will be engaged by the investigation and prosecution of this offence; however, the normal safeguards provided for in the criminal justice system will apply. The Government considers that the offence will comply with Article 6.

Articles 8, 10 and 11

38. A search under this new power may interfere with an individual’s Article 8 rights. The Government considers however that any interference with that right will be justified under Article 8(2). The provisions will be in accordance with the law, pursue one or more legitimate aim, and be a proportionate means of achieving those aims.

39. It is recognised that the power may be used against those exercising their Article 10 and Article 11 rights during a protest. As set out above, the extent to which a person’s Article 10 and Article 11 rights will be engaged will in part depend on the context in which this power is used, such as whether it relates to activity being carried out on private land. The Government considers that any interference with Article 10 and Article 11 rights will be justified under Article 10(2) and 11(2). The consideration below is equally applicable to those Articles.

40. These clauses allow for a search power to be exercised without the need for a constable to have reasonable suspicion that a person is carrying any particular items. Such powers may be in accordance with the law for the purposes of Article 8, provided that, considered in all the relevant circumstances, they provide adequate safeguards against arbitrary use.

41. In Gillan v UK^{[footnote 3]}, the European Court of Human Rights (“ECtHR”) considered the now repealed power in section 44 of the Terrorism Act 2000 that permitted a senior officer to designate an area within which persons could be stopped and searched without suspicion, if the senior officer considered that such designation was expedient in order to prevent acts of terrorism. The ECtHR found that the power was not in accordance with the law because it did not contain sufficient safeguards to prevent against arbitrary interference. In particular, the ECtHR highlighted the low threshold provided for by the test of “expediency”, which had been found to mean “advantageous” or “helpful”.

42. In Beghal v UK^{[footnote 4]} the ECtHR considered Schedule 7 to the Terrorism Act 2000, which provided a stop and question power at ports and airports without the need for reasonable suspicion. Whilst the ECtHR did find a breach of Article 8, it said about such powers:

“[a] requirement of reasonable suspicion is…an important consideration in assessing the lawfulness of a power to stop and question or search a person; however, there is nothing…to suggest that the existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, this is an assessment for the Court to make having regard to the operation of the scheme as a whole and…[the Court] does not consider that the absence of a requirement of reasonable suspicion by itself rendered the exercise of the power in the applicant’s case unlawful.”

43. The Supreme Court in R (on the application of Roberts) v Metropolitan Police Commissioner^{[footnote 5]} considered the compliance with Article 8 of the power to stop and search without the need for reasonable suspicion in section 60 of the Criminal Justice and Public Order Act 1994. In unanimously finding that section 60 was “in accordance with the law”, the Supreme Court identified a number of safeguards that protected against arbitrary use, which are incorporated into this power. The Government considers that the power contains sufficient safeguards against arbitrariness, in particular:

a. The authorising officer must reasonably believe that an authorisation is “necessary” for the purpose of preventing the commission or particular offences, or the carrying of prohibited objects.

b. The authorising officer must also reasonably believe that the specified locality is no greater than is necessary to prevent such activity, and the specified period is no longer than is necessary to prevent such activity.

c. An authorisation will be limited to 24 hours, extendable by up to a further 24 hours.

d. The authorisation and the stop and search will be subject to legal duties under the HRA, and the Equality Act 2010.

e. Any search will be subject to the safeguards in PACE and PACE Code of Practice A for the use of stop and search.

f. The use of the power will be judicially reviewable.

44. The Government considers that the provisions pursue the legitimate aims of the prevention of disorder and crime, and the protection of the rights of others. If the use of the power is used to prevent offences taking place on private land, the owner’s A1P1 rights may be being protected.

45. The Government considers that this new time-limited power to search without suspicion is proportionate. The powers to make an authorisation and carry out a search when such an authorisation is in place are discretionary. In exercising these discretions, the authorising officer and the constable carrying out a search will be required to act in accordance with section 6 of the HRA, and therefore will be required to assess the necessity and proportionality using the powers in each case. As part of considering whether a less intrusive measure could have been used, and whether making an authorisation is proportionate, the authorising officer will need to consider whether the new suspicion-led stop and search power will be sufficient for the purposes of preventing the relevant criminal offences being committed or the prohibited objects being carried. This will be a case-by-case consideration for the authorising officer.

Article 1, Protocol 1

46. A1P1 will be engaged by the power for the police to seize and retain items which they find in the course of a search and which they reasonable suspect to be a prohibited object. The Government considers that any interference with the right to peaceful enjoyment of property is compatible with A1P1.

47. The powers of seizure and retention are in accordance with the law because they are set out in clause 7(8) and clause 9(5), subject to further provision in regulations to be made by the Secretary of State. These powers are therefore formulated with sufficient precision to enable a person to know in what circumstances they can be exercised. Any interference is justified by the public interest in the prevention of disorder or crime and protecting the rights of others. Property will only be seized and retained if there are reasonable grounds to suspect that it is a prohibited object, and in accordance with legislation. The powers are proportionate because the articles seized could otherwise be used for the purposes of causing disorder or committing crime, or interfering with the rights of others, and could result in evidence (that would otherwise be missed or subsequently destroyed) being available for use in a criminal prosecution. The Bill includes a power for the Secretary of State to make regulations as to the retention of items seized, which will allow for the Secretary of State to provide for the retention of property, including its destruction or return to the owner.

Clause 11: delegation of authority to impose conditions etc on protests

48. Clause 11 amends section 15 of the Public Order Act 1986, which permits a Chief Officer of police to delegate functions under sections 12 to 14A of that Act to impose conditions or prohibitions on public processions or assemblies. Currently, a chief officer of police may delegate those functions to an assistant chief constable or, in relation to the City of London and metropolitan police districts, an assistant commissioner of police. Clause 11 would change the rank of officer in the London forces to whom the functions may be delegated, so that they could also be delegated, in the City of London, to a Commander and in the metropolitan police district to a Commander and a deputy assistant commissioner of police.

Articles 10 and 11

49. The functions which may be delegated will be exercised in relation to processions and assemblies in which people will be exercising their Article 10 right to freedom of expression and Article 11 right to freedom of assembly.

50. However, the Government does not consider that the amendment to the rank of permitted decision maker itself engages Article 10 or 11. The police must act compatibly with the Convention rights under section 6 of the HRA when making such decisions and therefore must do so in a way that is compatible with an individual’s human rights.

Part 2: Serious Disruption Prevention Orders

51. Part 2 of the Bill makes provision for Serious Disruption Prevention Orders as a new preventative court order in England and Wales. These provisions may engage Articles 5, 6, 8, 9, 10 and 11 and A1P1.

52. A SDPO can be made by the court on application of the prosecution in relation to a person aged 18 or over on conviction of an offence, if the court is satisfied on the balance of probabilities that the offence is a protest-related offence and that in the relevant period^{[footnote 6]}, the person has:

a. committed another protest-related offence for which they were convicted,

b. committed a protest-related breach of an injunction for which they were found in contempt of court,

c. carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales,

d. caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or

e. caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales.

53. The conduct must relate to different protests or have been committed on different days.

54. A court may only make a SDPO if it considers it necessary for one of the following purposes:

a. to prevent the person from committing a protest-related offence or a protest-related breach of an injunction;

b. to prevent the person from 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;

c. to prevent the person from causing or contributing to: the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or the carrying out by any other person 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;

d. 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.

55. A SDPO may also be made by the court on application of the police^{[footnote 7]}, as a freestanding matter, in relation to a person aged 18 or over who has on at least two occasions^{[footnote 8]} in the relevant period^{[footnote 9]} carried out activities mentioned in paragraph 52 above.

56. As with a SDPO on conviction, a SDPO made otherwise than on conviction can only be made if the court considers it necessary to make the order for one of the purposes set out in paragraph 54(a)-(d) above.

57. A SDPO may include prohibitions or requirements for the purposes set out in paragraph 54(a)-(d) above. Such prohibitions may include, for example, not being in a particular place, not being with particular persons, not participating in particular activities, not having particular articles with them, and not using the internet for particular purposes. The requirements may include, for example, attending at a particular place at a particular time and submitting to electronic monitoring of their compliance with other requirements and prohibitions included in the SDPO.

58. Electronic monitoring is not an end in itself; it is a tool to monitor compliance with another prohibition or requirement imposed by an order with the aim to support the management of risk of harm. It is a way of remotely monitoring and recording information on a person’s compliance with conditions on their behaviour, for example, not being in a particular place using an electronic tag which is normally fitted to a person’s ankle. The tag worn by the person transmits their location data to a monitoring centre where it is processed and recorded. The monitoring centre, operated by the ‘responsible person’, reviews this information to see whether the perpetrator is complying with the conditions being electronically monitored. Where a person has failed to comply, the responsible person provides information to the police for the enforcement of the order.

59. In relation to SDPOs:

a. the person concerned must comply with limited notification requirements. Failure to comply is an offence;

b. the person concerned (and others) may apply to vary, renew or discharge an order;

c. the person concerned (and others in certain circumstances) may appeal the making, variation, renewal or discharge of an order; and

d. breach of an order without reasonable excuse is an offence.

Article 5

SDPO – the measures

60. The provisions give the court discretion to impose prohibitions and/or requirements on an individual in circumstances where they have not been convicted of an offence. But, if doing so, the court may only impose prohibitions or requirements restricting an individual’s movements (e.g. curfew, attendance at a particular location, geographical restrictions). Article 5, however, is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. The ECtHR has held, in Guzzardi v Italy, that the difference between restriction on movement and deprivation of liberty is one of degree or intensity, rather than nature or substance^{[footnote 10]}. The domestic courts have held, in individual cases, that no deprivation of liberty arose from control orders imposing a curfew alongside other restrictions on conduct^{[footnote 11]}. Similar analysis applies to SDPOs. The SDPO provisions provide the courts with the discretion to determine appropriate prohibitions and/or requirements which do not amount to the kind of arbitrary detention proscribed by Article 5.

Criminal proceedings for breach of an order

61. The provisions engage Article 5 to the extent that breach of an order and failure to comply with the notification requirement are criminal offences, which can result in the arrest and detention of an individual. A constable may arrest using the power in section 24 of PACE. The penalty for breach is set out in primary legislation. As such, the penalty and power of arrest, is in accordance with a procedure prescribed by law, and would fall within the permissible grounds in Article 5(1). The subject of the order will be able to appeal against conviction and the resulting sentence in the usual way.

Article 6

Grant of a SDPO

62. The Government is satisfied that proceedings from making an SDPO do not involve the determination of a criminal charge^{[footnote 12]}. The domestic classification of SDPO proceedings is civil. While the conduct alleged against the individual may be criminal, the clear purpose of an SDPO is not punitive, but the prevention of, and deterrence from, individuals committing protest-related offences or breaches of injunctions, or carrying out other types of behaviour at protests such as that which causes serious disruption. An SDPO can only be made where there is evidence of repeated behaviour by an individual and where the court considers it “necessary” for one of these preventative purposes. Proceedings by which these orders are obtained are therefore, civil proceedings^{[footnote 13]} and will engage the civil limb of Article 6. The Government considers that these proceedings satisfy any requirements arising under Article 6(1).

63. In relation to the application of civil (as opposed to the criminal) standard of proof, the Government is satisfied that the use of the civil standard does not violate article 6 and adequate safeguards are provided to ensure procedural fairness^{[footnote 14]}. The rules which govern the application process, and the existence of a prescribed right of appeal and ability to subsequently apply to the court to vary or discharge the order provide sufficient safeguards.

Criminal proceedings for breach of an order

64. A person subject to a SDPO will commit a criminal offence if they:

a. fail without reasonable excuse to do anything they are required to do by the SDPO,

b. without reasonable excuse do anything they are prohibited from doing by the SDPO, or

c. notify to the police any information which they know to be false.

65. The normal safeguards and appeal routes provided for in the criminal justice system will apply to anyone investigated and prosecuted for any of these offences. The Government therefore considers that the new offences will comply with Article 6.

66. The Government is therefore satisfied that the provisions as a whole comply with Article 6.

Articles 8, 10 and 11

Grant of a SDPO and the measures

67. These provisions engage Article 8 and may engage Articles 10 and 11.

68. The effect of a person being made the subject of a SDPO will constitute an interference with that person’s Article 8 rights. This is because the limited mandatory notification requirement may interfere with the person’s right to privacy, and other prohibitions or requirements that might be imposed by a court such as prohibiting the person from associating with particular people and limitations on the use of social media may interfere with the person’s right to private and family life, home and correspondence. An electronic monitoring requirement under a SDPO may engage the Article 8 rights of the individual being monitored.

69. A SDPO may also interfere with a person’s Article 10 and Article 11 rights. This is because prohibitions or requirements that might be imposed by a court such as prohibiting the person from being at a particular place or associating with particular people, limitations on the use of social media, and requiring the person to report to a particular place at a particular time may interfere with the person’s rights to freedom of expression and freedom of assembly.

70. The extent of any interference with a person’s Article 10 and Article 11 rights, or whether they will be engaged at all, will depend on the type of protest-related activity that gives rise to the SDPO or is restricted by it, such as if the activity involved or involves activities on private land.

71. Articles 8, 10 and 11 are qualified rights, meaning they can be interfered with provided the interference is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society. The Government considers that each of the potential interferences identified may be justified. Any interference will be in accordance with the law:

a. A SDPO may only be made in accordance with the powers provided in primary legislation.

b. For a SDPO to be made, the person must have on at least two occasions within the relevant period carried out protest-related activities (as listed in paragraph 52(a)-(e)).

c. The court must consider it “necessary” to make the SDPO for one of the preventative purposes (as listed in paragraph 54(a)-(d)).

d. Only prohibitions and requirements (for which a statutory illustrative non-exhaustive list is provided) for the same preventative purposes can be imposed.

e. The limited mandatory notification requirement is clearly set out on the face of the Bill.

f. On making a SDPO the court must explain to the person the effects of the order in ordinary language.

g. The Secretary of State may publish statutory guidance to chief officers and chief constables about identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made.

h. There is provision for a person to appeal, or apply to a court to vary or discharge a SDPO.

72. The Government therefore considers that the provision is clear, foreseeable and adequately accessible. It gives clear indication of the circumstances in which the power to make a SDPO might be exercised or when the particular prohibitions or requirements may be included in a SDPO, and will therefore enable members of the public to regulate their conduct and foresee the consequences of their actions. The Government considers there are sufficient safeguards to protect against arbitrary interference with persons’ Article 8, 10 and 11 rights.

73. Any interference will be in pursuit of the legitimate aims of preventing crime and disorder and for the protection of the rights and freedoms of others, as provided for in the preventative purposes set out in paragraph 54(a)-(d) above. A SDPO imposed to prevent disruptive protest on private land will in particular pursue the legitimate aim of protecting the A1P1 rights of the landowner.

74. In relation to proportionality, a SDPO is a discretionary measure. An application will be required from the prosecution following sentencing for a protest-related offence (under clause 12), or from the police for a SDPO made otherwise than on conviction (under clause 13). The prosecution or police will need to consider act in compliance with their duty under section 6 of the HRA to not act incompatibly with Convention rights when considering whether to make an application. The court will then have to determine in light of the evidence whether it considers it necessary to make the order, and if so, which prohibitions and/or requirements should be included, and the duration of the order. In doing so, the court must also not act incompatibly with Convention rights. The minimum duration of a SDPO is one week, allowing a court to make a SDPO of a proportionate length. A court may also specify that particular requirements or prohibitions have effect for a specific period, so shorter than the duration of the SDPO. The mandatory notification requirements are limited to name and address, so those pieces of information necessary to allow a SDPO to be properly monitored.

75. The Government is therefore satisfied that these provisions are a proportionate measure to prevent crime and disorder and to protect the rights and freedoms of others.

Article 9

76. The provisions may also engage Article 9 as prohibitions and requirements imposed by a SDPO may interfere with individuals’ rights to freedom of thought, conscience and religion. Whether Article 9 is engaged will depend on the individual circumstances of each case. If there is an interference, the issue will be, as with Articles 8, 10 and 11, whether it is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society. The Government considers that any interference with Article 9 may be justified in accordance with Articles 9(2). The safeguards as to legal certainty, necessity and proportionality identified in relation to Articles 8, 10 and 11 as well as the identified legitimate aims of the prevention of disorder or crime and the protection of the rights and freedoms of others apply equally to Article 9. As mentioned above, a court has a discretion to make a SDPO, and in doing so it must comply with its section 6 of the HRA duty to not act incompatibly with Convention rights.

77. Prohibitions or requirements such as prohibiting the person from being at a particular place or associating with particular people may interfere with a person’s right to manifest their religion or belief (for example, excluding an individual from their regular place of worship). In addition to the considerations above with regards Articles 8, 10 and 11, the provisions expressly require that the prohibitions or requirements must, so far as practicable, be such as to avoid any conflict with the person’s religious beliefs. The Government is therefore satisfied that these provisions are compatible with Article 9.

Home Office

11 May 2022

1. See DPP v Cuciurean [2022] EWHC 736 (Admin) ↩

2. These are the same offences that clause 6 is adding to section 1(8) of PACE, namely: an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation; an offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (intentionally or recklessly causing public nuisance); an offence under clause 1 of this Bill (offence of locking on); an offence under clause 3 of this Bill (obstruction etc of major transport works); an offence under clause 4 (interference with use or operation of key national infrastructure). ↩

3. Application Number 4185/05 ↩

4. Application Number 4755/16 ↩

5. [2015] UKSC 79 ↩

6. The “relevant period” means the period of 5 years ending with the day on which the person is convicted of the current offence, but an offence may only be taken into account if the person was aged 16 or over. ↩

7. A chief officer of police, the chief constable of British Transport Police Force, the chief constable of the Civil Nuclear Constabulary or the chief constable of the Ministry of Defence Police. ↩

8. Each event must relate to a different protest or have taken place on a different day. ↩

9. The “relevant period” means the period of 5 years ending with the day on which the order is made; but an event may be taken into account for the purposes of this section only if it occurred when the person was aged 16 or over. ↩

10. Guzzardi v Italy (1980) 3 EHRR 333. ↩

11. E v Secretary of State for the Home Government [2007] UKHL 47. Secretary of State for the Home Government v MB (FC) [2007] UKHL 46. See also P v Cheshire West and Chester Council [2014] UKSC, 19. ↩

12. See Engel v Netherlands (1979-80) 1 EHRR 647. ↩

13. See McCann v Manchester Crown Court [2002] UKHL 39; Chief Constable of Lancashire v Wilson [2015] EWHC 2763. ↩

14. See Jones v Birmingham City Council [2018] EWCA Civ 1189 ↩