Helen Fenwick: The struggle over protest rights is here to stay

As I write, four Palestine Action protesters are on hunger strike, facing permanent damage to their health or perhaps death even though they have not been convicted of any offence. More than 12,000 people have written to the government to demand that ministers meet with lawyers representing the protesters, but so far David Lammy is refusing to budge.

A hunger strike that has already gone on for more than 60 days is only the latest in a series of actions that have turned up the volume on protest in the UK. Ever since Extinction Rebellion shut five bridges in central London in 2018, we’ve seen an escalation in the tactics protesters have deployed to put pressure on the government. After George Floyd was killed in the summer of 2020, Black Lives Matter protesters across the UK defied Covid restrictions and were met by violence from the far right. Two years later, Just Stop Oil carried out a rolling series of blockages across London and the M25 that lasted a month. And every week since October 2023 people have marched in support of Palestine – protests that have been met by counterprotests and blamed by some for an increase in antisemitic violence.

The law governing demonstrations in the UK has been fairly settled since the Public Order Act 1986, which Margaret Thatcher put in place after the miner’s strike and the Battle of the Beanfield. The Act established new offences of riot, violent disorder and affray, provided powers to impose restrictions and conditions on public protests, and set limits on acts “likely to stir up racial hatred”. Tony Blair fulfilled a manifesto pledge to “bring rights home” with the Human Rights Act 1998, which guarantees freedom of expression under Article 10 and freedom of assembly under Article 11 – provisions which mean that any further legislation must uphold these guarantees. Exceptions can apply, allowing curbs or even bans on protests, but they must be both necessary and proportionate.

For the next few years, the police navigated the tensions between the freedoms established in the Human Rights Act and powers to curb protest with some success. Marches in London against the war in Iraq, the American president George W Bush and Israel’s 2006 invasion of Gaza took place without much violence, or much discernible effect on UK foreign policy. Protesters complained of police brutality or when police forces “kettled” them in restricted areas for hours, but people gathered nevertheless in support of equality or the countryside and to occupy the City of London – the death of Ian Tomlinson, a bystander attacked by a police officer during a protest against the G20, was a tragic exception.

But as the rightwing media attacked the government for “waving the white flag”, first Boris Johnson and then Rishi Sunak passed legislation to expand police powers to control demonstrations. Based on a template provided by the rightwing think-tank Policy Exchange, the Police, Crime, Sentencing and Courts Act 2022 added new offences around damage to memorials and trespass, and gave police sweeping powers to shut down demonstrations that are noisy or cause a “public nuisance” – provisions which even the former home secretary David Blunkett said would make the UK “more like Putin’s Russia”. The Public Order Act 2023 went even further, making it a criminal offence to carry glue or other items with the intent to cause serious disruption and giving the police the powers to stop and search for such material, as well as introducing prevention orders stopping people convicted of protest-related offences from doing anything related to protests that is likely to result in “serious disruption to two or more individuals, or to an organisation, in England and Wales”.

This significant increase in restrictions has been met with protest and legal challenge, with the High Court declaring in 2024 that Suella Braverman acted unlawfully in lowering the threshold for police to restrict demonstrations without proper debate in parliament. But the crackdown on protest has continued under Keir Starmer, with the new administration promising to “take back our streets” with a bill including new offences around fireworks, masks and climbing on memorials, as well as powers for the police which could curb repeated protests in one place.

Some of the measures introduced and proposed since 2022 may run counter to the rights of freedom of expression and assembly enshrined in the Human Rights Act, raising the prospect of further legal challenges. But with Nigel Farage riding high in the opinion polls, the strains between the rights of protesters to demonstrate and the rights of others to go about their business without disruption will only increase. It’s easy enough to imagine a Reform UK government not only encouraging the police to make full use of the draconian powers they already have, but also legislating to lower the threshold for a ban on a march from “serious disorder” or even to ban a range of protests completely. As we look ahead into 2026, the only certainty is that clashes over our right to protest are sure to continue.