Richard Ekins

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

(Photo: Getty)

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.

The law as it stands is not a clear guide to the policing of public protest

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.

Already a subscriber? Log in

Keep reading with a free trial

Subscribe and get your first month of online and app access for free. After that it’s just £1 a week.

There’s no commitment, you can cancel any time.

Or

Unlock more articles

REGISTER

Comments

Don't miss out

Join the conversation with other Spectator readers. Subscribe to leave a comment.

Already a subscriber? Log in