The law is not fit to stop Extinction Rebellion’s street protests

Extinction Rebellion (XR) are once again blocking London’s streets, reportedly emboldened by the Supreme Court’s recent Ziegler decision – which found that deliberately blocking roads can be lawful protest. The police maintain that the judgment does not substantially change the law and that XR, like everyone else, has a right to assemble and protest but not to cause serious disruption to the community or to hold the streets to ransom.

But while the judgment is not a sea change in the law – whatever some protestors may now say – it does reveal that the law as it stands is failing to adequately protect the public’s right to use the highways.

Section 137 of the Highways Act 1980 says that it is an offence ‘if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway’. In Ziegler, the Supreme Court held that deliberate physical obstruction of the highway could be lawful. The Court reasoned that ‘lawful authority or excuse’ in the Highways Act had to be read in light of rights in the European Convention on Human Rights (ECHR) to free assembly and free expression – if protestors were exercising those rights they would not be breaching the law.

In view of section 3 of the Human Rights Act 1998 (HRA), which requires legislation to be read consistently with ECHR rights whenever possible, the courts had no option but to hold that people have ‘lawful authority or excuse’ to obstruct the highway if exercising these rights. Limits on ECHR rights have to be proportionate. That is, the courts should only convict protestors if their obstruction of the highway unreasonably interferes with the rights of others.

Even before the HRA, the courts read section 137 of the Highways Act in such a way that ‘lawful authority or excuse’ turned on whether the relevant use of the highway was reasonable, but the public’s right to move freely on the highways effectively enjoyed priority. In 1999, in a House of Lords judgment, Lord Irvine said that ‘any “reasonable or usual” mode of using the highway is lawful, provided it is not inconsistent with the general public’s primary right to use the highway for purpose of passage and repassage.’ As the Divisional Court said in Ziegler, the HRA changed all this.

The Supreme Court took the case law of the European Court of Human Rights to require ‘a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly.’ Purposeful disruption of traffic could be an exercise of ECHR rights, but the extent of any disruption and the fact that it was intentional would be relevant to whether a protest went beyond those rights. For the Supreme Court, it all comes down to the facts of each individual case and to whether conviction is ‘necessary in a democratic society’.

The Ziegler case itself concerned a protest in September 2017 against the Defence and Security International arms fair, held at the Excel Centre in east London. Protestors lay down on one side of an approach road leading to the Excel Centre and locked themselves to hollow boxes. The police arrested them within five minutes, but it took about 90 minutes to disassemble the boxes and remove the obstruction to the highway.

The judges on appeal disagreed with one another about how to evaluate the protest. For some, it was significant that the protestors only blocked one way into the Centre, whereas others stressed that this amounted to complete obstruction of the relevant part of the carriageway. Some judges noted that the protest was of limited duration because the police removed the protestors after only 90 minutes. Other judges thought it significant that the protestors had intended to obstruct the highway until removed, whenever that might be, and had taken steps to make their removal very difficult. One might add that it is surprising if police efficiency in preventing an obstruction of the highway undermines the prospect of later conviction.

The Supreme Court treated the protest as peaceful, which in one sense was obviously true: the protestors did not attack, threaten or abuse anyone. However, this may obscure the important distinction the Divisional Court drew between persuasion and compulsion. In attempting to physically obstruct others from acting lawfully, the protestors were taking action that ‘is not at the core of the Convention rights’. There is an important difference between a protest that has the unintended side effect of blocking traffic, because of where the protestors are located, and one in which protestors set out to block traffic, in order to maximise disruption to others.

There are therefore reasons to think that the majority in the Supreme Court was wrong in its evaluation of the protest. Perhaps it is no surprise, in view of the highly fact-based nature of the enquiry, that judges will disagree about all this. The resulting uncertainty puts the police in a difficult position – and may sometimes provide them with an excuse for inaction.

The Supreme Court majority focused on the proportionality of convicting the protestors as opposed to the proportionality of the police action in removing them. Even so, on the majority’s logic it would seem that the police breached the HRA by carrying out arrests five minutes after the protest began and in removing the protestors after 90 minutes. The police should have arrested and removed the protestors only when the protest tipped over into being an unfair intrusion on the rights of others. Again, this leaves the police in a predicament, especially when protestors adopt tactics designed to frustrate their removal, blocking the highway until removed.

In intentionally disrupting traffic and causing economic and social pain, XR’s protests may breach the law, especially if they block roads for long periods or cause obvious harm. The Ziegler judgment does not prevent arrest or conviction in such cases. However, the judgment shows that the law as it stands is not a clear guide to the policing of public protest – and fails properly to protect the public’s right to use the roads without disruption. Parliament should consider changing the law to redress the balance, amending the Police, Crime, Sentencing and Courts Bill to reassert the priority of ‘the public’s primary right to use the highway for purpose of passage’ and to make clearer to police, protestors and courts when and to what extent obstruction of the roads is lawful.