12:20, November 06 34 0 theguardian.com

2019-11-06 12:20:05
Why was the Met's Extinction Rebellion protest ban unlawful?

The Metropolitan police imposed a blanket ban across London last month prohibiting any assembly of more than two people linked to Extinction Rebellion’s “autumn uprising” action. But two senior judges ruled on Wednesday that the decision to impose the ban, made under section 14 of the Public Order Act, was unlawful.

What events led to the high court’s ruling?

After eight days of protests and disruption by Extinction Rebellion last month the Metropolitan police had had enough. A superintendent saw for himself what he felt was serious disruption. Because of that, and crucially, because of the further and perhaps worse disruption he feared would come, he issued an order under section 14 of the 1986 public order act,

What is section 14?

The act dates from 1986. It allows police to place conditions on public assemblies if they fear serious disruption. The conditions imposed by the Met were a ban on all XR protests and actions in London as part of their autumn uprising. The police treated the campaign of events by XR as one single entity to which the powers under section 14 applied.

What did the court decide?

In a nutshell, section 14 cannot be used to impose a blanket ban. The act is to manage, not prohibit, protest.

Furthermore the senior officer imposing the conditions on an individual assembly needs to be present, and the officer who made the order, Supt Duncan McMillan, was not.

The judges wrote: “The XRAU [extinction rebellion autumn uprising] was not a public assembly at the scene of which Supt McMillan was present on 14 October 2019, so that there was no power to impose a condition under section 14 of the 1986 Act...”

Q&A

What are Extinction Rebellion's key demands?

The UK group of Extinction Rebellion has three core demands:

1) Tell the truth

The government must tell the truth about the scale of the ecological crisis by declaring a climate emergency, “working with other groups and institutions to communicate the urgent need for change”.

2) Net zero emissions by 2025

The UK must drastically cut its greenhouse gas emissions, hitting net zero by 2025.

3) Citizens’ assembly

The government must create a citizens’ assembly to hear evidence and devise policy to tackle the climate crisis. Citizens’ assemblies bring together ordinary people to investigate, discuss and make recommendations on how to respond, in this case, to the ecological emergency.

In the US activists have added a further demand: “A just transition that prioritises the most vulnerable and indigenous sovereignty [and] establishes reparations and remediation led by and for black people, indigenous people, people of colour and poor communities for years of environmental injustice.”

Matthew Taylor

In addition the court found that section 14 could not be used to ban future protests.

The high court said: “This means that Supt McMillan purported to impose a condition not only on those public assemblies already in existence but also on intended future assemblies yet to be held.”

So how restricted are the police powers?

The judges noted: “It was intended that the protests would cause inconvenience to the general public so that politicians would take notice of and engage with the aims of Extinction Rebellion.”

By implication, the court says if activists want to cause disruption, that in itself is not necessarily unlawful. Police will consider an appeal, and go back to their lawyers to see what powers they can use. More protests are expected. Police order commanders will need to look at those powers and anticipate how to use them so they will not be struck down by the courts if challenged.

But the high court in its judgment made it clear the judges were ruling only on limited points around the 1986 public order act and section 14, saying: “We are not concerned in this case with the lawfulness of the arrests of any individuals or the merits of the prosecution or proposed prosecutions of any individuals. “

What are Extinction Rebellion planning in the run-up to the election?

This week XR decided on “one or two major actions” in the run-up to 12 December in an attempt to force the climate emergency to the forefront of the campaign. Activists will target iconic buildings in the capital, although protesters say the demonstrations will not cause mass disruption. More “theatrical actions” are expected to be organised by groups around the country.

What will the ruling mean for the group’s plans in the longer term?

XR is still discussing what the next major “rebellion” might look like – and following the controversial tube protests in October, which risked draining public support, there are differing views. But the high court ruling may mean in future police will be reluctant to impose such wide-ranging restrictions.

What might police do next?

The judgment noted: “It was common ground that there are powers contained in the 1986 act which might be lawfully used to control future protests deliberately designed to “take police resources to breaking point”.

Those powers, in section 14a, requite a much higher standard, authorisation is needed from the home secretary and they are also time-limited.

Longer term, the police and ministers are already talking about changing the law to make it easier to impose conditions. Paradoxically the embarrassing defeat for the Met may bolster its case with government that the public order laws need updating to cope with modern protest, and such changes are urgent. Sources say government has been pressing police to take more robust action.

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