As predicted by human rights lawyers, the police’s attempt to ban Extinction Rebellion protests in London has been ruled unlawful.
The High Court judged that a city-wide ban issued under Section 14 of the Public Order Act on 14 October – during the climate activists’ ten days of protest in the capital – could not be applied to “separate gatherings, separated both in time and by many miles”, as this doesn’t count as “public assembly”.
On the face of it, this is good news for the activists, and embarrassing for the Metropolitan Police. But the ruling isn’t that simple.
During the court hearing, the police argued that the ban was the only way to tackle the group’s widespread disruption. But there is suspicion that they imposed a radical, clearly unlawful measure – which nevertheless held for four days before the protests finished – knowing full well it would be overturned in the courts.
This tallies with what protestors on the ground experienced on the day following the ban, which was that nothing much changed in police action against them, and that there was even confusion among individual officers about the decision.
“It’s quite a new law [in terms of how it’s being used], and what I’ve found is that the police officers don’t understand it either,” said a founder of the XR campaign who was sitting in the road outside Millbank protesting on the first full day the ban was imposed.
When I interviewed Extinction Rebellion’s police liaison Paul Stephens, who had served in the Met for 30 years before retiring last year, for this week’s New Statesman, he suspected that the police imposed such an outrageous measure in order to demonstrate the lack of tools available to them, and lobby for more powers over protests.
This is a long-established “pattern” in policing protest, according to Mike Schwarz, a lawyer who is known for representing political activists and has a particular interest in freedom of assembly.
“Already, in response to XR’s successes police and politicians are media-testing increases in police powers, the creation of new criminal laws, toughening sentences,” he wrote in a comment piece on openDemocracy in October.
One example, outlined in the piece, is of politicians introducing the Criminal Justice and Public Order Act in 1994, following the failure of prosecutions against illegal ravers at Castlemorton festival in the 1990s when the police’s attempt to charge them with “conspiracy to commit a public nuisance” (with a maximum life sentence) didn’t work.
Schwarz also cites “civil laws against secondary picketing, the criminalisation of simple trespass at military and nuclear sites, the new offence of aggravated trespass, the extension of stalking laws to protesters and tailor made legislation protecting animal research facilities”.
While Extinction Rebellion has won a victory in the courts, the history of policing protest suggests it will have a fight on its hands to come.
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