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Lords have waved through changes to the definition of protest that could see any demonstration that inconveniences more than two people or impedes business branded “serious disruption” and a criminal offence.
Just 68 peers – Greens, Lib Dems, 10 Labour rebels and seven crossbenchers – backed Green peer Jenny Jones’ “fatal motion” that would have blocked Conservative moves to further restrict protest rights, using controversial Henry VIII powers.
The changes have been pushed through by ministers using secondary legislation – essentially without full parliamentary scrutiny – overriding a Lords vote earlier this year which threw out the “chilling” plans.
The Public Order Act 1986 now bans “a hindrance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey)” including “the prevention of, or a delay that is more than minor to, the delivery of a time-sensitive product to consumers of that product,” and to “any essential goods or any essential service”. Any march taking place on a road could be in breach of the law, as it disrupts journeys.
In sum, the rights of drivers now override the right to protest.
Baroness Jenny Jones told Byline Times she was “really sad” she didn’t win the vote: “I believe it was a pivotal moment when we could have made a difference, upheld democracy, and protected various freedoms. But I want to express my profound gratitude to all my colleagues, including those in the House of Lords, the Lib Dems, the Labour rebels, and some very fine, upstanding crossbenchers. These individuals supported the fatal motion and recognised it as the right and principled course of action.
“We received an incredible response to our petition, with 63,000 people signing in a very short period. What’s remarkable about this is that the mainstream media barely covered the issue. They failed to highlight its importance, yet people understood the significance and expressed their care. That was an enormous relief.”
Does this mean the government can simply approve changes to the definition of process as planned? “I’m afraid it looks that way. The slow walking ban essentially covers ordinary people being allowed to go about their business. It’s not going to stop Just Stop Oil as they are people attempting to save the planet. But the same procedures are likely to impact other protesters — ordinary people raising their voices about ordinary issues. It’s misleading to say it’s only about stopping certain individuals,” Jones said.
For the Green peer, equally worrying is that “the Tories have arranged a system whereby any minister can alter any law at any time with minimal scrutiny” – a situation branded “deeply concerning.”
She accused Labour of giving the green light to these changes in failing to back her motion. “I don’t understand it, and I firmly believe that Labour has made a mistake. I would prefer a Labour government, but I don’t think this was a wise move on their part,” she said.
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Why was Sir Keir Starmer – a former human rights lawyer – so hesitant to stand up for these rights? “If Labour had supported our motion, the numbers suggest that it could have passed. This would have been an even stronger possibility if the crossbenchers had also joined,” Jones said.
Labour rebels included trade union lawyer Lord Hendy KC and former National Education Union general secretary Baroness Blower.
Lord Prem Sikka, another Labour rebel, told Byline Times: “Our civil rights are evaporating. You can’t go on strike, you can’t protest, and the police can stop and search you without any reason. This represents a bigger picture…Why is Labour acquiescing to these laws? That’s a deeply disturbing problem.
“There is a significant issue with Labour’s policymaking. They are trying to be too conservative.”
Crossbenchers rallying behind Baroness Jones included Lord Pannick KC, and Lord Lisvane—who, as a clerk of Parliament, “understands proper procedure” Jones said.
Lord Pannick successfully argued against Boris Johnson’s attempt to prorogue Parliament in the Supreme Court in 2019. Baroness D’Souza, former Lords Speaker, also backed the fatal motion.
Jones suggests that the vote might energise the push for strengthening protest rights and put pressure on the Labour Party in the future. “We’ve seen who will take a stand despite opposition, and Labour might be under more pressure to demonstrate their stance on freedom of expression.”
Human rights group Liberty is taking the government to court over this issue, which adds “another layer of complexity.” Jones, who had just four hours sleep when we spoke, added: I’m feeling incredibly tired and upset. Last night was quite emotional, and I came home very unsettled.”
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The vote fell by 68 votes to 154. Labour instead tabled a “motion to regret” the Conservatives’ protest rights change. The motion has no legal force.
Those who breach the conditions could be fined up to £2,500 if they participated and imprisoned for up to 51 weeks if they organised the procession or assembly, even if they didn’t know about the new rules.
A Labour Lords source dismissed Jones’ efforts last week, saying: “Smaller parties often use fatal motions to get everyone interested. It’s got some people talking on social media.” Labour fears setting a precedent for Lords blocking legislation.
The source added that ministers will “have to respond in some way” to their motion of regret. “Usually, they’ll get back with a report when they’ve got time, but sometimes the impact can be bigger,” they added.
Adam Wagner, of Doughty Street Chambers, was commissioned by Friends of the Earth to give his expert legal opinion on the extent to which the proposed changes to the Public Order Act 1986 would reduce the threshold at which police officers could impose conditions on protests.
He has found that under the plans “the threshold would be so low that it could lead to police imposing conditions on protests which would breach the rights of protesters.” Wagner adds it would have a “chilling effect” on anyone wanting to attend a protest.
The leading constitutional lawyer argues that a huge range of peaceful protest acts – including any marches attended by hundreds or more people, in which roads are closed for it to take place – would “undoubtedly” be considered “serious disruption” and therefore could be broken up as illegal under the proposed changes.
And the changes brought in by the Police Crime Sentencing and Courts Act 2022 mean protesters could be prosecuted for breaching any restrictions, even if they didn’t know about them, he says.
More than 45 civil society organisations, including Amnesty International UK, The Women’s Institute and Liberty, wrote to peers before the vote asking them to support the fatal motion tabled by Baroness Jenny Jones.
A Lib Dem spokesperson on Home Affairs in House of Lords said: “This is the first time that a Government has sought to make changes to the law through a piece of secondary legislation that has already been rejected by a vote in Parliament on primary legislation.
“It is a regrettable to see constitutional precedent being swept aside by this statutory instrument not being blocked in the Lords, and it is for those who did not support the Fatal Motion to explain why they allowed this to happen.”
More than 60,000 people signed a petition to ask Labour peers to back her “Fatal Motion”.
No 10 Defence
Asked by Byline Times why the Prime Minister was pushing on with the change and ignoring Parliament, the PM’s spokesman last week: “We wouldn’t characterise it as that. It’s not appropriate that people are prevented from going about their everyday lives by these sorts of actions.
“Obviously the right to protest is fundamental and protected, but when it crosses into stopping people going about their lives, businesses trading or indeed emergency services. going about their work, it’s clearly not appropriate.”
The Government insists that the police have asked for these powers. Questioned about this, the spokesman said: “You’ll know that there have been a number of discussions with police leaders about the powers they need clarity around, and I think this is in response to that.”
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