Section 137 of the Highways Act 1980 says it is an offence “if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway”. Why, then, do so many protesters block the highway and remain unpunished?
There can be few people, especially in London, or attempting to drive round the M25, who do not ask themselves this question just now. Protesters, the latest being Just Stop Oil, make such obstruction their speciality.
The police are timid in enforcing the law. In mid-October, two activists suspended themselves above the Queen Elizabeth II Bridge, thus closing the Dartford Crossing, probably the busiest pinch-point of the busiest motorway in the country. It took Essex Police two days to remove and arrest them. In September, another blockage at junction three of the M25 kept 18,000 drivers stuck for hours, some blocked for hospital treatment or school runs.
Similar questions arise about criminal damage. Protesters have taken to gluing themselves to works of art in public collections and spraying public buildings with paint. Over the past month, 8,000 front-line police shifts have been diverted from normal duties to dealing with such protests, yet “dealing with” is the wrong phrase. The police are there in force, but force is not what they use. Mostly, they just stand around.
As someone who lives in the country but quite often comes to London, I see frequent, less dramatic examples in both places. Local trail hunts are often disrupted by intimidating gangs of animal-rights extremists who commit various offences such as filming children and mass trespass. Quite often, police turn up and hang about, but never – and I have witnessed such scenes more than 100 times – have I seen a police arrest. On one occasion (at which I was not present), there were arrests, after the “antis” cracked a man’s skull. The case was dropped because the assailants, being masked, were unidentifiable.
Comparable police inaction is commonplace when travellers illegally occupy and often defile private or public land. The most famous current example of police reticence, of course, are the immigrants landing in their thousands on the South Coast. Again, the police arrive merely to witness the mass illegality, not prevent it.
In London, my work takes me to Westminster. Hardly a day passes there without protests which cause annoyance to pedestrians, residents or office workers. These vary from causing delay in walking down a street, through megaphone noise making it hard to work, right up to breakages, total blockage of streets and scuffles with exasperated members of the public.
Opposite Downing Street, a permanent camp is permitted, and crowds at the security gates are often allowed to yell so loud that they interfere with normal life (and, indeed, with prime ministers choosing to announce their resignations there – nowadays an almost weekly occurrence).
I find this upsetting: I am just old enough to remember when pedestrians could pass through Downing Street unchallenged. It was considered a proud aspect of our parliamentary democracy that the prime minister lived in a mere street and that we could walk down it. That freedom has long since succumbed to the threats of terrorists and mobs.
I have never before seen a proper overall analysis of these problems, so this week’s short report (The “Just Stop Oil” Protests) by the think-tank Policy Exchange is timely. It brings together all the elements.
The first explains who the protesters are. The organisations involved have different names – Extinction Rebellion, Insulate Britain, Animal Rebellion, Just Stop Oil – but the same people. They are extreme, calling for revolution, and apocalyptic, declaring “this civilisation is finished” and flirting with the idea of suicide as a response to “climate grief”.
Policy Exchange reveals that some protesters have had to sign a declaration in which they “formally pledge to take part in action which will lead to my arrest”, for which they will undergo “a one-day non-violence training”. “Nonviolence” seems to be narrowly defined: things like breaking bottles in supermarkets, smashing windows of public buildings or spraying paint on buildings are “peaceful”. These are not normal concerned citizens: they are fanatics, led by seasoned agitators, such as the ubiquitous Roger Hallam, who want them to break the law and then exploit all its ambiguities in court.
The reason why the law of the highway is not enforced lies in the interpretation of other laws. Ever since Britain subjected itself to the Human Rights Act of 2000, our indigenous law has been contradicted by what is inaccurately called “the right to protest”, which appears in the European Convention on Human Rights.
In a 2021 case known as Ziegler, our Supreme Court held that this right sometimes provides a “lawful excuse” for blocking a highway and that juries would have to weigh up whether a conviction for blocking was “necessary in a democratic society”. This imports politics into the law and makes every case arguable, as does the ridiculous defence of protesters for their “sincerity”. Their sincerity does not diminish their nuisance to others. Most of the greatest extremists are sincere.
This unsatisfactory Ziegler ruling is typical of the effect of the European Convention on Human Rights and should be changed by legislation. It largely explains police weakness in these situations. It is hard for them to be confident if a protester they arrest is charged. If he or she can persuade a jury he is sincere and that his conviction is not “necessary to a democratic society”, he can get off. How can juries work that out? They are there to determine fact, not maintain the balance of the constitution.
The police therefore worry that doing their job by clearing the highway quickly might get them into trouble. With this doubt in their mind, their trade’s theologians have a field day setting out guidelines. Policy Exchange’s report publishes the College of Policing’s “Five Step Appeal” model which guides officers dealing with protesters. It starts with “simple appeal – ask the person to comply with your request”, and goes up through “reasoned appeal”, “personal appeal” and “final appeal” to “action” – by which time it is usually too late to make much difference.
To this is added the well-known police addiction to monopoly. The Just Stop Oil protesters love sticking themselves to objects in museums. All major museums have security and conservation experts who know how to unglue offenders very quickly, yet the police forbid this and insist on sending their own crack squad, which takes ages.
A Public Order Bill is going through Parliament. It has no helpful provisions on any of the above. One amendment seeks to create 150-metre “buffer zones” around abortion clinics to prevent anti-abortionists approaching pregnant women. The penalty would be six months’ imprisonment.
This would seem a classic example of the wrong way to go. Public order law should not pick and choose which causes it approves. We could end up with a situation where a woman who prays for a pregnant woman a hundred yards away goes to prison, whereas maniacs who block the road for days in the interests of revolution cannot be convicted. The law should not encourage one protester and forbid another.
As with so much rights-based legislation, the current state of our law privileges tiresome activists over the freedoms of people in general. In doing so, it damages our model of policing by consent, and drives us towards taking the law into our own hands.
