The Significance of the High Court Ruling That the Police’s London-Wide Ban on Extinction Rebellion Was “Unlawful”

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The news cycle seems so frenetic right now that stories barely get noticed before the media spotlight promiscuously turns to some other topic. A case in point, to my mind, is an important High Court ruling last week — that a decision taken by the Metropolitan Police last month, to impose a blanket ban across the whole of London prohibiting any assembly of more than two people linked to Extinction Rebellion’s ‘Autumn Uprising’, under section 14 of the Public Order Act of 1986, was “unlawful.”

The two High Court judges who issued the ruling — Mr. Justice Dingemans and Mr. Justice Chamberlain — said, as the Guardian described it, that “the Met had been wrong to define Extinction Rebellion’s two-week long ‘autumn uprising’ as a single public assembly on which it could impose the order.”

As Mr. Justice Dingemans stated in the ruling, “Separate gatherings, separated both in time and by many miles, even if coordinated under the umbrella of one body, are not a public assembly under the meaning of section 14(1) of the 1986 act.” He added, “The XR autumn uprising intended to be held from 14 to 19 October was not therefore a public assembly … therefore the decision to impose the condition was unlawful because there was no power to impose it.”

Jules Carey, a partner at human rights law firm Bindmans, who was part of the team that brought the judicial review claim on behalf of Jenny Jones, Caroline Lucas and Ellie Chowns of the Green Party, Labour MPs Clive Lewis and David Drew, Labour activist Adam Allnutt and the journalist and activist George Monbiot, called the ban “hastily imposed” and” erratically applied”, and said, “This judgment is a timely reminder to those in authority facing a climate of dissent: the right to protest is a longstanding fundamental right in a democratic society that should be guarded and not prohibited by overzealous policing.”

As the Guardian explained, the judgment was “a huge embarrassment for the Met, which had insisted in the face of criticism that it was lawful”, and which “now faces potential claims from hundreds of protesters arrested for breaching the order, which ran across London from 9pm on Monday 14 October until 6pm the following Friday.”

Jules Carey said, “It’s a very expensive mistake for the Metropolitan Police. Anyone arrested under the order could now have a claim against the Met for false imprisonment. If force was used against them, they could have a further claim for assault. I’m sure most of them would want to start off with an apology for the ordeal that they experienced, but all of them could potentially be awarded several thousands of pounds depending on how long they were arrested for and whether force was used against them.”

George Monbiot, who was arrested during XR’s ‘Autumn Uprising’, said that he was considering taking legal action. “The important thing is that the attempt by the police to quash our democratic right to dissent has been overturned”, he said, adding, “Non-violent civil disobedience is essential to the health of our democracy, in fact, there would be no democracy without it. What the police were doing is draconian and over the top, and they were directly infringing our democratic right to protest.”

As Monbiot also pointed out, “The Public Order Act itself is highly illiberal legislation which has a major chilling effect on protest, as do several of its successor acts.” He further explained that the police “have this wide range of tools for shutting down protest and one thing I would like to see coming out of this is much more discussion about those tools, the wide range of powers police have to shut down democracy.”

However, it would be unwise to expect that the police will simply back down. As I stated at the time the section 14 order was imposed, “it seems to me that they [the Met] took the only course of action they could envisage that would allow them to non-violently shut down the protests, with senior officers evidently having decided that, after eight days, they had had enough of policing a protest movement that had set up camp in Trafalgar Square and on the edges of St. James’s Park, disrupting ‘business as usual’, and that had also engaged in freewheeling marches and gatherings up and down Whitehall and in Parliament Square.”

As I see it, the Met knew that the ‘Autumn Uprising’ did not fulfil the requirements of section 14 of the Public Order Act, which requires a senior officer to believe that “serious public disorder, serious damage to property or serious disruption to the life of the community” will result if a ban is not imposed, or if it is believed that the organisers of the assembly “will intimidate or compel others to do unlawful acts.”

Now, however, it is reasonable to expect that the police will use the thwarting of their section 14 ban to insist that what they actually need are new powers. Ever since Extinction Rebellion started their protests almost exactly a year ago, the Met have been under pressure from the right-wing media, in particular, and also, we can infer, from the government, to respond more robustly to XR’s disruption, and they will now be able to claim more effectively than before that only new powers will enable them to do so.

As the Guardian described it, the Met have “lobbied the government for law changes to make it easier to curtail disruptive protests”, and a “senior police source” told the newspaper that “changes could include lowering the threshold at which police can place restrictions.” As the Guardian put it, “Such a change could mean that the prospect of ‘disruption’ is enough to impose conditions, not ‘serious disruption’ as the law currently requires.”

It would, unfortunately, not be the first time that laws have been changed when the establishment regards itself as under equipped to deal with dissent. The Public Order Act itself arose out of the unrest of the early 80s — in particular, contempt from the Tory government of Margaret Thatcher for the Greenham Common Women’s Peace Camp that started in 1981, for the Molesworth Rainbow Village that emerged in the summer of 1984 at the second proposed base for US cruise missiles, and, most explicitly, as a result of the Battle of the Beanfield on June 1, 1985, when 1,400 police from six counties and the MoD violently attacked and decommissioned a group of travellers — including the Molesworth refugees, evicted from their camp in February 1985 in the largest peacetime mobilisation of troops in modern British history — who were trying to make their way to Stonehenge to set up what would have been the 12th annual Stonehenge Free Festival, an anarchic jamboree that had long been a thorn in Thatcher’s side. For more on both, see my books The Battle of the Beanfield and Stonehenge: Celebration & Subversion.

Although the UK has no written constitution, before the Public Order Act there had been no precedent via active legislation for the police to shut down assemblies they disagreed with — as was demonstrated at the Stonehenge Free Festival, where, at any one time throughout the whole of the month of June, tens of thousands of people gathered in the fields across the road from the country’s most famous ancient monument.

And then in 1994, after the government had been unexpectedly assailed by fresh waves of dissent, via illegal raves, the astonishing road protest movement and offshoots like Reclaim the Streets, the sudden emergence of another mega-gathering — the Castlemorton Free Festival, at which the many tribes of the UK’s still-vibrant counter-culture collided — led to the passage of the Criminal Justice Act, which, as I explained in an article for the Guardian about the Battle of the Beanfield in June 2009, introduced the concept of “trespassory assembly”, which “enabled the police to ban groups of 20 or more people meeting in a particular area if they feared ‘serious disruption to the life of the community’, even if the meeting was non-obstructive and non-violent. The Criminal Justice Act also introduced “aggravated trespass,” which finally transformed trespass from a civil to a criminal concern.

And so, as the Beanfield led to the Public Order Act, and Castlemorton led to the Criminal Justice Act, are we to conclude that Extinction Rebellion’s disruptions will lead to a new clampdown on civil liberties? I hope not, as judges in particular have  tendency to provide a bulwark against politicians’ authoritarian impulses when it comes to non-violent protest, but as Mike Schwarz, a solicitor who has spent 30 years defending political activists, explained in an article for openDemocracy last month, we should not ignore the fact that, “in response to XR’s successes, police and politicians are media-testing increases in police powers, the creation of new criminal laws, [and] toughening sentences.”

And with the horrendously authoritarian Priti Patel as Home Secretary, there is clearly no room for complacency. Everyone who cares about the right to protest needs to keep a close eye on the government, and to be prepared to fight back if a new Public Order Act or Criminal Justice Act looks like emerging, as both have done significant damage to our ability to gather freely — whether in open dissent or otherwise — over the last 33 years.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from seven years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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