Policy paper

Public Order Bill: Injunctions

Updated 30 August 2023

Applies to England and Wales

The recent highly disruptive protests have demonstrated that we need to go further to protect the rights of the majority. For example, some protests groups have been intent on causing serious disruption and have used harmful methods such as affixing themselves to the highway or using lock-on devices that require specialist tools and training to remove. These acts have had a huge impact on the country and were often co-ordinated to take place across several local authority boundaries.

During the JSO and XR protests, injunctions were taken out by private businesses and multiple local authorities. Key stakeholders (DLUHC, Highways England, local authorities, and law enforcement) have all flagged concerns with the lack of coordination, and the delays caused by multiple injunction applications.

That is why the government is introducing a power through the Public Order Bill for a Secretary of State to bring civil proceedings.

The intention of these provisions is to offer a way for government to step in, in the public interest, where the potential impact of the protest activity is serious and widespread across local authority boundaries.

The power to initiate civil proceedings will be accompanied with the ability for a Secretary of State to apply to the courts to attach a power of arrest and remand to an injunction, under certain specified circumstances. Where an injunction is granted by the court with a power of arrest attached, the police would have the ability to arrest an individual who is suspected to have breached the conditions in an injunction.

There are safeguards around the use of this power to ensure that it is used only where necessary to support better coordination and quicker enforcement against disruptive protest activity, as outlined below.

Types of conduct that can be prohibited by injunctions

• trespass
• obstruction of access to land that is owned by the claimant
• obstruction, prevention or slowing of traffic
• damaging land and specified sites in a locality
• erecting structures in a locality
• climbing onto, into, or under vehicles travelling to or from a specified locality
• protesting in a specified locality
• entering specified locations unless in a vehicle, or any other appropriate means
• abandoning or dumping an item in a specified location
• refusing to leave an area when asked to do so by an enforcement agent (eg police constable, traffic officer, high court officer, private security)
• entering buildings without authorisation
• obstruction of roads / major transport projects
• interference with key national infrastructure
• locking on
• tunnelling offences
• stalking
• noise pollution / making noise in specified locations (context specific)
• discharging gasses
• using items or resources owned by a claimant – eg electricity

The power to bring proceedings

A Secretary of State will only be able to bring proceedings in cases where a Secretary of State reasonably believes that protest related activity causes or is likely to cause serious disruption to key national infrastructure or access to essential goods or services, or where the activity is having or is likely to have a serious adverse effect on public safety. If either of these conditions is met, then a Secretary of State can seek to initiate civil proceedings only if it is considered to be “expedient in the public interest to do so”.

Example

This power could be used by a Secretary of State if protestors blocked several oil terminals thereby impeding other industries in several other areas which rely on the use of oil for their daily operation.

The government continues to expect private landowners and businesses to take an active role in protecting their own premises. The responsibility to protect private interests lies with the private parties concerned and the government will not be using this power to intervene on behalf of individual companies. Similarly, if disruption caused by protestors is concentrated within the bounds of one local authority, section 222 of the Local Government Act 1972 provides local authorities with the power to initiate court proceedings themselves. As such, the government will not use its power to seek injunctive relief on the behalf of a single local authority.

The government is clear that the power to initiate civil proceedings can only be used where the necessary criteria are met, and where it is considered “expedient in the public interest” to do so. These safeguards around the use of this power are to ensure that it is used cautiously and only where necessary to support better coordination and quicker enforcement against disruptive protest activity.

Example

This power cannot be used by a Secretary of State if protestors cause serious disruption to a supplier of an essential goods item (such as fuel) if the disruption caused does not affect the public’s access to fuel from substitute suppliers in the market.

In this case, it would not be considered “expedient in public interest” and it would be considered a private matter.

Requirements of a Secretary of State prior to initiating court proceedings

In cases where the criteria for bringing proceedings are met, the Secretary of State must consult with any individuals they consider appropriate before doing so, having regard to those who may have an interest in bringing civil proceedings themselves.

Example

If a Secretary of State sought to initiate civil proceedings against protestors who obstruct oil terminals, they must consult with the private owners of these oil terminals prior to engaging with the courts.

This is necessary to show regard to those who may themselves bring civil proceedings in relation to the same activity. The provisions also make clear that any civil action initiated by a Secretary of State will not affect the ability of other individuals to bring proceedings in relation to those activities.

The power of arrest and remand

If a court grants an injunction prohibiting protest activity which may cause nuisance, annoyance or have a serious adverse effect on public safety, then a Secretary of State may apply to the court for the power of arrest to be attached to the injunction. However, the power of arrest can only be attached if certain criteria are met.

The court may only attach a power of arrest if it believes that the conduct prohibited by the injunction involves any of the following:

• the threat or use of violence
• a significant risk of harm to the public or a section of the public
• a significant risk of harm to individual or individuals protected by the injunction provisions

Example

A court may attach a power of arrest to an injunction if the injunction prohibits protestors from obstructing or interrupting road traffic on a motorway or from climbing on the gantry. In such cases, motorway users face serious disruption to their journeys and the protestors would be at significant risk of harm.

By contrast, a court may not attach a power of arrest to an injunction if the injunction prohibits acts such as making noise at high volumes in specified locations. While this may cause serious disruption, it cannot be considered as a threat or use of violence or to pose a significant risk of harm.

If an individual is arrested under a power of arrest attached to an injunction, they must appear before a court within 24 hours. If the matter is not disposed of by this hearing, the police may remand the person in custody.

If a power of arrest is not attached to an injunction, the Secretary of State would need to provide details of those who breach the injunction to the court. The court may then summon the protestors to a hearing.

During this hearing, if an individual is found to have ignored or disobeyed the injunction, without a reasonable excuse, the individual may be found to be in contempt of court. Contempt of court is an offence, punishable by imprisonment of up to 2 years, a fine or both.

Background

A Secretary of State cannot impose an injunction or the power of arrest. Any decision to grant an injunction or the power of arrest is made by a civil court, which will assess the details of the claim, the strength of the evidence presented and whether the relevant legal criteria have been met.

Business organisations, private landowners and individuals all have the right to initiate civil court proceedings in their own interests. Generally speaking, it is not the responsibility of the government to protect private interests or any given industry in this regard. Local authorities also have a statutory power to initiate court proceedings in the interests of the inhabitants of their area (section 222 of the Local Government Act 1972). This will remain unchanged.

However, recently we have seen protesters blocking key national infrastructure and carrying out activities with the potential to cause delays to the supply of goods and services. These activities have occurred across local authority lines and have caused significant disruption. These new measures can support better coordination of the injunction process by providing a specific way for a Secretary of State to intervene where the potential impact of the protest activity is so serious and widespread that there is a clear public interest to do so.

Frequently asked questions

What is an injunction?

• An injunction is a discretionary remedy which can be granted by a court, ordering an individual or group to do a particular act (a mandatory injunction) or stop doing a particular act (a prohibitory injunction). These are granted in civil, rather than criminal, proceedings.
• An interim injunction can be granted by courts as a temporary measure, prior to a full court hearing of the claim. If a final claim succeeds, the courts can issue a final injunction.
• An injunction is not a free-standing legal remedy as it is an order which is applied for during legal proceedings which must have been filed, or which the claimant undertakes to file imminently.

The Attorney General already has the power to apply for an injunction in the public interest, why do secretaries of state need this power?

• The Attorney General can only apply for an injunction where there is no other interested party who can do so and where some action is required from the perspective of the administration of justice. Given the nature of these protests, there is always an interested party (local authorities, private businesses).

How does this new measure support coordination, surely it creates more confusion?

• A Secretary of State will consider what consultation may be appropriate ahead of initiating civil proceedings. Consideration will be given to consulting parties who are impacted by the activities and who could also bring civil proceedings in relation to them.
• In practice, where a Secretary of State decides to bring proceedings, they may do so as the sole claimant in the public interest, or in conjunction with other key affected parties to ensure a strong case can be presented.
• We believe the measure will improve coordination in scenarios where multiple parties have the right to apply for similar injunctive relief.