The Return of Thoughtcrime

The UK’s draconian Public Order Bill, which seeks to restrict certain forms of protest used by climate activists, will expand the state’s ability to detain people deemed disruptive and limit the courts’ ability to restrain it. This will align the British legal system with those of authoritarian countries like Russia.

LONDON – In December 1939, police raided the home of George Orwell, seizing his copy of D.H. Lawrence’s Lady Chatterley’s Lover. In a letter to his publisher after the raid, Orwell wondered whether “ordinary people in countries like England grasp the difference between democracy and despotism well enough to want to defend their liberties.”

Nearly a century later, the United Kingdom’s draconian Public Order Bill, passed by the UK House of Commons last year and now being considered in the House of Lords, vindicates Orwell’s doubt. The bill seeks to restrict the right to protest by extending the scope of criminality, reversing the presumption of innocence in criminal trials, and weakening the “reasonableness” test for coercive action. In other words, it widens the government’s scope for discretionary action while limiting the courts’ ability to restrain it.

When the police seized Orwell’s copy of Lady Chatterley’s Lover, the novel was banned under the Obscene Publications Act of 1857, which prohibited the publication of any material that might “deprave and corrupt” readers. In 1959, the nineteenth-century law was replaced by a more liberal measure that enabled publishers to defend against obscenity charges by showing that the material had artistic merit and that publishing it was in the public interest. Penguin Books succeeded with this defense when it was prosecuted for publishing Lady Chatterley’s Lover in 1960; by the 1980s, the book was taught in public schools.

But while Western democracies have stopped trying to protect adults from “depravity,” they are constantly creating new crimes to protect their “security.” The Public Order Bill creates three new criminal offenses: attaching oneself to objects or buildings (“locking on” or “going equipped to lock on”), obstructing major transport works, and interfering with critical national infrastructure projects. All three provisions target forms of peaceful protest, such as climate activists blocking roads or gluing themselves to famous works of art, that the government considers disruptive. Disrupting critical infrastructure could certainly be construed as a genuine threat to national security. But this bill, which follows a raft of other recently enacted or proposed laws intended to deal with “the full range of modern-day state threats,” should be seen as part of a broader government crackdown on peaceful protest.

By transferring the burden of proof from the police to alleged offenders, the Public Order Bill effectively gives police officers the authority to arrest a person for, say, “attaching themselves to another person.” Rather than requiring the police to show reasonable cause for the arrest, the person charged must “prove that they had a reasonable excuse” for locking arms with a friend.

The presumption of innocence is not just a legal principle; it is a key political principle of democracy. All law-enforcement agencies consider citizens potential lawbreakers, which is why placing the burden of proof on the police is an essential safeguard for civil liberties. The Public Order Bill’s presumption of guilt would reduce the extent to which the police are answerable to the courts, aligning the UK legal system with those of authoritarian countries like Russia and China, where acquittals are rare.

The bill also weakens the “reasonableness” requirement for detention and banning orders, allowing officers to stop and search any person or vehicle without any grounds for suspicion if they “reasonably believe” that a protest-related crime may be committed. Resistance to any such search or seizure would be a criminal offense. And magistrates could ban a person or organization from participating in a protest in a specified area for up to five years if their presence was deemed likely to cause “serious disruption.” And since being “present” at the crime scene includes electronic communications, the ban could involve digital monitoring.

The question of what should be considered reasonable grounds for coercive action was raised in the landmark 1942 case of Liversidge v. Anderson. Robert Liversidge claimed that he had been unlawfully detained on the order of then-Home Secretary John Anderson, who refused to disclose the grounds for the arrest. Anderson argued that he had “reasonable cause to believe” that Liversidge was a national-security threat, and that he had acted in accordance with wartime defense regulations that suspended habeas corpus. The House of Lords ultimately deferred to Anderson’s view, with the exception of Lord Atkin, who in his dissent accused his peers of being “more executive-minded than the executive.”

Even in wartime, Atkin claimed, individuals should not be arbitrarily detained or deprived of their property. If the state is not required to provide reasons that could stand up in court, the courts cannot restrain the government. The UK’s current wave of national security and counter-terrorism bills directly challenges this view, making Atkin’s dissent even more pertinent today than it was during the war.

Law enforcement’s growing use of big data and artificial intelligence makes the UK government’s efforts to curtail the right to protest even more worrisome. While preventive policing is not new, the appearance of scientific impartiality could give it unlimited scope. Instead of relying on informers, police departments can now use predictive analytics to determine the likelihood of future crimes. To be sure, some might argue that, because authorities have so much more data at their disposal, predictive policing is more feasible today than it was in the 1980s, when the British sociologist Jean Floud advocated “protective sentences” for offenders deemed a grave threat to public safety. American University law professor Andrew Guthrie Ferguson, for example, has argued that “big data will illuminate the darkness of suspicion.”

But when considering such measures, we should keep in mind that the state can sometimes be far more dangerous than terrorists, and certainly more than glued-down protesters. We must be as vigilant against the lawmaker as we are against the lawbreaker. After all, we do not need an algorithm – or Orwell – to tell us that handing the government extraordinary powers could go horribly wrong.

House of Lords Speech on the Public Order Bill

My Lords, it is very cold in this House; I wonder what has happened to the heating. It certainly has a chilling effect on debate.

I am not a lawyer like the noble Lord, Lord Sandhurst, nor a policeman like the noble Lord, Lord Paddick. I am driven to take part in the debate because I have become increasingly concerned at the wide powers of surveillance and control being claimed by Governments in the name of public order and national security—powers that, in their structure though not yet in the scale of their implementation, resemble those in countries such as Russia and China.

I recall that George Orwell wrote in 1939 about

“whether the ordinary people in countries like England grasp the difference between democracy and despotism well enough to want to defend their liberties. One can’t tell until they see themselves menaced in some quite unmistakeable manner.”

People feel menaced in different ways; I myself have been woken up by one such menacing experience. I hope also to bring some historical perspective to the topic we are discussing.

The traditional aim of public order Acts, starting in 1936, was to prevent violent clashes on the streets. A famous common-law precedent was Wise v Dunning in 1902. Wise, a rabid anti-Papist, whose habit of speaking and dressing in a manner offensive to Catholics in Liverpool had led to fights at previous meetings, was bound over to keep the peace. The principle was clear enough: freedom of speech, procession and assembly must not be carried to the point where it caused violence on the streets.

As most noble Lords have pointed out, we already have plenty of Acts designed to prevent disruptive behaviour. Why do we need more? As the noble Lord, Lord Paddick, said, it is not because many of these measures have been demanded by the police. The noble Baroness, Lady Chakrabarti, suggested an answer that I find extremely convincing. This Bill brings peaceful, if inconvenient, protest and incitement to violence and terrorism into the same legal framework, implying in principle that the first is as culpable as the second. This argument is used to extend the powers of the state in dangerous ways, which have been charted only in despotic systems. That is why I talk about an Orwellian creep and cited George Orwell at the beginning.

I take up just two matters from Parts 2 and 3 of the Bill, consequential on this false identification between peaceful protest and violence and terrorism. The first, which other noble Lords have alluded to, is the extension of the police’s stop and search powers. In the past, stop and search powers have been used to prevent only the most serious offending, such as serious violence or reasonable suspicion of terrorism—for example, if people were suspected of carrying knives, guns or explosives. This was seriously open to racial discrimination and was highly controversial, but I can see a justification for the power itself. However, the Bill would extend the same powers of stop and search to the protest context. 

Someone can be stopped and searched for being suspected of being linked, however peripherally, to non-violent purposes or conduct. To stop and search someone suspected of carrying a bomb is one thing; to stop and search someone suspected of carrying a bicycle lock seems to me, to put it mildly, disproportionate—and, in fact, mad.

This leads me to my second point, to which I can hardly do justice in a short speech, namely the extremely worrying spread of arrest and detention where there is no reasonable suspicion that the person may be involved in proscribed behaviour, or where there is merely a balance of probabilities—I want to come back to that term—that they might be.

Clause 11 creates a new suspicion-less stop and search power, whereby the police will have the power to specify that, in a particular locality and for a particular period of time, they do not need to have reasonable suspicion—in other words, an objective basis for suspicion based on evidence—that a protest-related offence will be committed, before stopping and searching people for a prohibited object. This is similar to powers contained in anti-terrorist legislation. Let me quote from the public information leaflet issued to explain Schedule 3 of the Counter-Terrorism and Border Security Act 2019:

“Unlike most police powers, the power to stop, question, search and, if necessary detain persons does not require any suspicion … The purpose is to determine whether a person appears to be, or to have been, engaged in Hostile … activity.”

Leave to one side the draconian powers being asserted here; it is surely fantastic to apply the same reasoning and powers to someone who might or might not be carrying a paintbrush.

Almost as bad as suspicionless stop and search is Clause 20, which authorises serious disruption prevention orders. Many noble Lords have talked about these. They allow a court to ban a person from attending demonstrations and protests for up to two years, not on conviction of any offence but on a balance of probabilities that, on at least two occasions in the previous five years, they have carried out activities related to a protest or caused or contributed to someone else carrying out a protest. Failure to comply with SDPO conditions is a criminal offence, subject to 51 weeks’ imprisonment.

The balance of probabilities means that the court must think that it is 51% likely that the person concerned has carried out such activities. If it thinks that it is only 49% likely, they get off free. What sort of evidence is needed to make that kind of calculation? I would be grateful if that could be explained. The essential point is that Clause 20 allows standards of proof appropriate in civil cases to be used for imposing criminal sanctions, such as electronic tagging, on individuals convicted of no criminal offence.

Any serious analyst of these measures would need to trace not only the growth of novel forms of protest, which is acknowledged, but the way that concepts such as dangerousness and mens rea—guilty mind—have penetrated into the heart of our criminal justice system, creating a large and growing area of law in which you do not have to have done anything criminal to have been deprived of large chunks of your liberty.

It would be very difficult to amend the Bill to make it compliant with the European Convention on Human Rights. I therefore agree with those noble Lords who want to reject Parts 2 and 3 and seriously amend Part 1.