Britain is a world leader in criminalising environmental protesters, according to a report released earlier this month. Its authors, academics at the University of Bristol, discovered that while Brazil and the Philippines top the chart for environmental defenders being killed, only Australia beats Britain at rates of arrest. Citing the Police, Crime, Sentencing and Courts Act 2022 and Public Order Act 2023, passed under home secretaries Priti Patel and Suella Braverman respectively, the authors continued that legislation of this kind was directly motivated by the perceived need to curb the actions of environmentalist groups. The report concluded by recommending that “[g]overnments, legislatures, courts and police forces […] operate with a general presumption against criminalising climate and environmental protests”, which they described as “a reasonable response to the urgent and existential nature of the climate crisis”, adding that activists should be “engaged as stakeholders in a process of just transition”.

Right now, that shift appears unlikely. Not only is Labour keeping the Conservatives’ anti-protest legislation, it is also continuing a court case intended to allow the government to reduce the threshold at which the draconian legislation applies. It’s plausible to put this down to Keir Starmer’s fear of being labelled woke by an increasingly culture war-driven opposition. Yet Labour has long had its own illiberal streak.

Tough on crime.

Labour came to power in 1997 promising to be “tough on crime, tough on the causes of crime”. In the preceding years, Tory home secretary Michael Howard had committed to a crackdown on rising crime levels, one epitomised by the phrase “prison works”. Blair’s slogan emphasised the accompanying necessity of social repair – pursued through increased spending on services like education and the NHS – but academics nonetheless describe a “ratchet effect” that has followed “as politicians competed with each other to appear tough on law and order.”

In its first ten years, New Labour passed 40 criminal justice acts – more, according to Matt Foot and Morag Livingstone, than the rest of the postwar period combined – and by 2010 had created a reported 3,600 new offences. New modes of prevention and punishment accompanied them. Asbos, brought in in 1998, saw people imprisoned for begging and spitting if doing so breached their orders. “Imprisonment for public protection”, introduced in 2005, meant sentences lasting more than a decade for crimes like stealing a phone. Headline crime figures did fall, while the UK’s prison population more than doubled between 1993 and 2010. Any arrestee, even if acquitted or released without charge, could at one point expect to have their biometric data stored on the national DNA database indefinitely.

Within the broader crime crackdown came new powers specifically for fighting terrorism. The Terrorism Act 2000, passed the year before 9/11, allowed for suspicionless stop-and-search within a designated area for a 28-day period, which could then be renewed. Between 2002 and 2009, the entire metropolitan area of London was subject to rolling blanket authorisations. More than 100,000 people were stopped and searched under section 44 between 2009 and 2010 – 60% fewer than the previous year – without a single arrest for terror offences. The same act introduced seven-day pre-trial detention for terror suspects, extended to 14 and then 28 days following 9/11 and 7/7 respectively (attempts to institute 90- and 42-day detention without trial for British nationals and indefinite detention for foreigners were defeated, although Control Orders – which, as Justice puts it, “may impose a variety of conditions including restrictions on employment, residence, travel, communication and association with others” – passed).

Even before the 2000 Act’s passage, tension emerged around the way it defined “terrorism”. Parliamentarians feared an overly broad remit might criminalise “domestic protesters, strikers, ‘attacks against the corporate state’, hunt saboteurs, attacks on empty buildings, those who threatened the destruction of GM crops, asylum-seekers and international solidarity groups”, and the final phrasing remained, to some, unsatisfactory: in his 2011 book Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law, professor of public law Keith Ewing describes it as potentially including “all forms of protest involving the use of criminal damage”, meaning it “would have caught the Suffragettes and striking miners had it been in force in earlier times”. Abuse of that breadth seems to have been avoided, but that could be changing: it was under the Terrorism Act that 57-year-old Emma Kamio was arrested this August, held for five days, subjected to what she describes as “psychological torture”, and then released without charge, following her daughter’s alleged involvement in a Palestine Action protest. (A complaint against the officers involved is reportedly being investigated.) A rise in the use of anti-terror laws against climate protesters, meanwhile, is being recorded around the world.

At other times New Labour targeted protest directly. Kettling, a police tactic developed through the 1990s, was first majorly deployed in 2001’s May Day demonstrations in central London; 3,000 protesters and passersby were detained for seven hours without food or access to toilets. The 2003 Anti-Social Behaviour Act reduced the definition of “public assembly” from a gathering of 20 or more to a gathering of two or more; two years later, Labour modified the Protection from Harassment Act to allow companies to seek injunctions against activists. In one notorious case, Dr Peter Harbour, a retired lecturer who had campaigned for the protection of a lake in Oxford, was subject to an injunction by energy company npower which prevented him from visiting the lake for two years. According to the Independent, a high court judge found that the original scope of the injunction would have “criminalised children from setting up tents [sic] in back gardens close to the lake”.

Harbour later discovered he had been listed on a national police database as a “domestic extremist”. “Domestic extremism” was – and remains – a contentious term, too. According to journalists Rob Evans, Paul Lewis and Matthew Taylor, the phrase was coined by the police “sometime between 2001 and 2004” in reference to certain members of animal rights groups (direct action group Stop Huntington Animal Cruelty was a thorn in the government’s side at the time, almost forcing the closure of Huntington Life Sciences, Europe’s biggest animal testing laboratory).

Writing in 2009, Evans, Lewis and Taylor noted that since evolving to deal with “sometimes violent criminals,” fears had surfaced that “the police’s domestic extremism apparatus [… was] now looking for new targets to justify both its budgets and its existence.” By the time Evans and Lewis released their book Undercover: The True Story of Britain’s Secret Police in 2012, their analysis went further: “With no legal basis or agreed definition, the phrase [domestic extremism] could be applied to anyone police wanted to keep an eye on,” particularly “those who wanted to ‘prevent something from happening or to change legislation or domestic policy … outside of the normal democratic process’.”

Indeed, the police were keeping an eye on them. In 1999, Labour home secretary Jack Straw – who was himself allegedly subject to undercover police surveillance – provided part of the funding for the National Public Order Intelligence Unit (NPOIU), a new contingent of undercover police officers intended, according to Evans and Lewis, to expand on the remit of the earlier Special Demonstration Squad. The NPOIU was home to spy cops like Mark Kennedy, who in 2009 enabled the arrest of more than 114 climate campaigners planning to occupy the Ratcliffe-on-Soar power station, said to be the biggest preemptive arrest of political activists in UK history (none were convicted).

In 2005, Labour passed the Serious Organised Crime and Police Act (Socpa), which restricted the right to protest within one kilometre of Parliament Square, a measure understood as a response to Brian Haw’s longstanding encampment there against the Iraq war. That law led to the conviction of Maya Evans and Milan Rai for reading out the names of dead Iraqi civilians and British servicemen and women at the Cenotaph. The following year, Met officers arrived in the night and removed the bulk of Haw’s signage and possessions. Writing in the Guardian, comedian Mark Thomas – who organised a series of “mass lone protests” against the Parliament Square restrictions – argued that

to many this law, which would have us get permission to wear a badge or a T-shirt within a 1km radius of parliament, became the epitome of New Labour’s control-freak tendencies. Socpa typified the Kafkaesque reach of a government determined to make the citizen more accountable to the state than the state was accountable to the citizen.

Journalists also felt the force of anti-protest laws. In February 2008, the National Union of Journalists (NUJ) launched campaign group I’m a Photographer, Not a Terrorist, citing persistent surveillance by the Met’s forward intelligence teams or FITs; stop-and-searches under section 44; and the passage of the new Counter-Terrorism Act, section 76 of which made photography of police officers in public spaces a potential criminal offence. In the NUJ campaign’s accompanying pamphlet, photographer Jess Hurd described her experience of being stopped by a FIT while working: “They said that I ‘could be doing hostile reconnaissance.’” It was a case brought to the European Court of Human Rights by Pennie Quinton, a journalist, and Kevin Gillan after they were searched on their way to a demonstration outside an arms fair in London that eventually led to section 44 being scrapped.

A slow descent.

New Labour may have expanded the crackdown on protest in the UK, but it did not initiate it: Ewing writes that an “explosion” of laws during the Thatcher and Major years saw liberties “swept aside like skittles on a bowling alley”. The Public Order Act 1986 made it possible for the police to impose conditions on demonstrations, while the Criminal Justice and Public Order Act 1994 introduced suspicionless stop-and-search. As Ewing describes it, Labour promised a break with the overreach of the Tories, a “culture of liberty” backed by the Human Rights Act, as well as the new the Freedom of Information Act, the Data Protection Act, devolution, House of Lords reform, equality and anti-discrimination legislation and the Macpherson inquiry into the racist killing of 18-year-old Stephen Lawrence.

The massive anti-Iraq war protests in 2003 made clear that New Labour did not seek to shut down protest outright, and constitutional protections helped curb government excess multiple times. But the promised “culture of liberty” remained elusive. Alongside the measures noted above were plans for ID cards; the prosecution of Iraq whistleblowers like Katherine Gun; the deaths of Ian Tomlinson, Harry Stanley and Jean Charles de Menezes at the hands of police officers; the Prevent strategy (described by Amnesty International as “thought-policing”); and further surveillance powers that saw families being spied on by local authorities to check they lived in catchment areas for desirable schools.

Still, former shadow attorney general and Labour peer Shami Chakrabarti is clear that the situation today is much more acute than it was under New Labour. “Recent Tory attacks on peaceful protest have been far more shameless and deliberate,” she told Novara Media in a message. Professor of UK human rights law David Mead concurs: “I think large numbers of people would feel far more reticent today about taking to the streets than they would’ve done 15 or 20 years ago,” he said, speaking to Novara Media, “partly because it is much more difficult to do so now knowing the police will almost certainly be able to take action against you. Whether they choose to is a matter for them.”

Outlining Labour’s policing plans in February last year, Yvette Cooper channelled Blair, telling an audience at the Institute for Government that she would be “tough on crime, tough on the causes of crime” once again. In light of New Labour’s history and the current party’s consistency with the Tories’ efforts to criminalise protest, this commitment might illuminate more than she imagined. Capitulation may well be the clearest and most powerful force at play – but there are elements of restoration, too.

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