Until 2022, calling for the abolition of the monarchy may still have been a form of treason in the United Kingdom, but it did not seem to be more generally criminalised. According to the statute books, the Treason Acts remained in force, but they were specialised tools and provided for a limited range of crimes. Section 3 of the Treason Felony Act 1848, for instance, criminalised compassing, imagining, inventing, devising or intending to depose the monarch from the style, honour or royal name of the imperial crown. In practice, such legislation had rarely been used. Even vociferous criticism of the monarchy had not led to such charges or prosecutions. While it technically remained ‘treason’ to call for the abolition of the monarchy, the criminal law had fallen away in reality. Addressing the question of the lawfulness of the Treason Felony Act 1848 and its compatibility with the protections given effect by the Human Rights Act 1998, Lord Scott put it this way:

[T]he valuable time of the courts should be spent on real issues. I have already expressed my non-belief in the reality of the respondents’ alleged fear of prosecution. I repeat it. I do not suppose there is any school debating society that has not regularly debated the issue of monarchy versus republic … There has been no prosecution under the Act since 1883. The enactment and coming into force of the Human Rights Act 1998 made the tolerance de facto of advocacy of peaceful political change a tolerance de jure.

R v Attorney General, ex parte Rusbridger [2003] UKHL 38 [45]

Beginning in late 2022, that position of ‘tolerance’ may have started subtly to change. Operating insidiously, the criminal law has begun to play a larger role in monitoring opposition to the monarchy. In this post, I explore that theme. I consider incidents of anti-monarchy protest since the death of Elizabeth II. Although the role of the criminal law is sometimes overlooked in discussion about constitutional matters, the recent use of it in the context of the monarchy creates acute dangers for constitutional debate, fair policing and free speech. We may be witnessing a move away from overt prohibitions to stealthier powers that suppress a wider variety of expression.

The Traditional Picture

When we think of the monarchy, two parts of the law typically come to mind. The first is its constitutional framework: the entity of ‘the Crown’, the historical idea of ministers serving at the will of the sovereign (even if starkly different in practice), the monarch as both a beneficent overseer of Parliament and a symbolic presence distanced from the throes of partisan politics, and the institution’s ceremonial role in a democracy. Then there are the more historical portions of the criminal law, which specifically protect the monarch’s person and their family. Older and more dramatic than the first, this part centres on the concept of ‘treason’, which conjures images of Tudor England and monarchs who exercised much greater power than their modern counterparts. The Treason Acts remain specialised tools of the criminal law, drafted expressly to ensure the monarch’s safety. But, probably because they are so specific and serious, they are rarely used. Before the conviction of Jaswant Singh Chail in 2023 for wielding a crossbow in Windsor, the last person convicted of treason was Marcus Sarjeant in 1981. Both incidents generated a significant amount of press coverage, as any charge of treason tends to do. The crime is not lightly deployed.

Outside the context of direct threats to a monarch’s person, the role of anti-monarchists has been peripheral insofar as the criminal law concerned the monarchy. Politically, the long-standing response casts anti-monarchists as ridiculous or eccentric. In the words of Tom Nairn, the traditional view has been ‘whole-heartedly that anyone bothering about the Crown as such was only a nut’. Examples of this attitude remain: in Prime Minister’s Questions on 10 May 2023, Rishi Sunak taunted Keir Starmer for the fact that the Labour Party’s leader had once discussed abolishing the monarchy—as if even discussing the issue were beyond belief. Looking to the criminal law, in particular, a first glance at the doctrinal framework reveals little to do with constitutional debate about the monarchy. Instead, it has focused on other political battles, especially those surrounding hard-edged environmental protestors.

In a sense, the use of ‘public order’ is not a recent phenomenon. For decades, the Public Order Act 1986 has provided the Crown Prosecution Service with many charging options in this arena. Section 4 prohibits the causing of fear or provocation of violence, for instance, while section 5 prohibits the causing of harassment, alarm or distress. Both sections refer to ‘disorderly behaviour’, which is left to the fact-finding tribunal—typically a bench of lay magistrates—to determine in the circumstances of each case. More recently, the Police, Crime, Sentencing and Courts Act 2022 added conditions on public processions and assemblies, as well as amending offences relating to failure to comply with those conditions.

The Public Order Act 2023 then introduced an array of crimes tailored to widely publicised protesting tactics, including the offences of ‘locking on’ and ‘being equipped for locking on’. These new offences create problems in practice. Given Code C of the Police and Criminal Evidence Act 1984, for example, police officers limit the questions that they ask at the scene because they know that full questioning must await an interview under caution, usually at a police station. Therefore, once a police officer has the reasonable suspicion needed to arrest a protestor who has a padlock, the officer is unlikely to give the suspect time to provide a full, detailed explanation of any ‘reasonable excuse’. That will be left to the interview, often hours of detention later. The focus of those supporting the 2022 and 2023 Acts appeared to be squarely on environmental groups, such as Extinction Rebellion and Just Stop Oil. Although any anti-monarchist could have fallen foul of the prohibitions, the government’s attention seemed to rest on a different kind of protestor.

A Changing Picture? Criminal Law and Anti-monarchism

It may be tempting to dismiss the recent legislation as simply more of the same: broadly drawn prohibitions of ‘disorderly’ behaviour, sufficiently malleable to target whatever the political threat is deemed to be in a given era, with no particular relevance to the issue of monarchy. The 2023 Act, for instance, retains the label of ‘public order’ and creates a fixed number of criminal offences. However, the Act’s political and constitutional climate is important. At least in some contexts, politicians have consistently sought to characterise protestors as distinct from issues of ‘free speech’ and ‘free assembly’. Instead, protestors (perhaps precisely those posing the most foundational questions) are presented as extremists, disruptors of state infrastructure and–—therefore—criminals.

The growing prominence of anti-monarchists in this picture may not be due to any change in the legal framework. It might reflect two cultural trends. First, the monarchy has been under heightened scrutiny in the last four years: the Jeffrey Epstein saga, the controversies surrounding Meghan Markle, the death of Elizabeth II and the crowning of a successor. Second, research indicates a decline in support for the monarchy, especially among younger people. Against that background, it makes sense that we are seeing more active opposition to the monarchy, including by way of protests, which then attract the tried and tested tools of the criminal law. The Public Order Act 1986 is a familiar and obvious tool to use in response, for instance. Rather than legal changes, it may be that anti-monarchists are meeting the criminal law more frequently because they are increasing their activity in public spaces and risking disruption at official events.

That said, when considering anti-monarchism as a part of a constitutional debate, distinctive issues arise. The Public Order Act 2023 may indicate a more insidious strategy. Given Royal Assent on 2 May 2023, the statute came into force just in time to provide the police with new powers to deploy during the coronation. While the drafters are unlikely to have had in mind anti-monarchists in early 2022 (rather than, say, the environmental protestors so commonly discussed by the Bill’s main sponsor, the then-Home Secretary, Priti Patel), the last few months of the legislative process may have seen a shift in focus. By late 2022, there had been the heckling at Elizabeth II’s funeral procession in Edinburgh and the throwing of eggs. Only days before the coronation, the Metropolitan Police tweeted an ominous declaration of low tolerance of any disruption of the coronation. Therefore, by the day of the coronation itself, it seems that anti-monarchists found themselves squeezed into a paradigm of restriction on protest.

Of more than fifty people arrested during the coronation, at least six anti-monarchy protestors made headlines, including the chief officer of Republic, Graham Smith. Again, this may seem unremarkable. If anti-monarchists are arrested, it is not the criminal law overreaching; the law is merely deploying the same tools that it has applied more and more in recent years to other kinds of protestors. However, there is a difference. The restrictions on protest have now come to affect one of the UK’s most familiar and fundamental constitutional questions: whether or not we should have a monarchy. Instead of politicians dismissing anti-monarchists as ridiculous or eccentric, they have allowed the criminal law to respond with hawkish policing and coercion.

Policing Constitutional Debate and Broader Dangers

Commentators have started to notice this shift. The Financial Times recently described a transformation in the profile of UK anti-monarchists amid changing attitudes towards the monarchy. It is not clear how much overlap exists between anti-monarchy protestors and environmental protestors, but the police have begun to treat both categories in an increasingly similar way. Yet, for my purposes, it is the intensified policing of anti-monarchists that leads, in effect, to the criminalisation of one side of a familiar constitutional debate. Although it sounds hyperbolic, is it now possible that, when protestors express anti-monarchy sentiment in public, the police respond by resorting to broad, ill-defined legislation to silence them? 

In this sense, the legal framework has changed. A young person throwing an egg in Luton is not an extremist or the creator of serious disruption. Neither is the head of Republic, a fairly conventional organisation known for its middle-of-the-road campaigning; it doesn’t threaten public safety or national security. Yet, by pushing the egg-thrower and Graham Smith towards the criminal law, the freedom of an important constitutional debate is put in danger.

Here, we can see how this theme interacts with broader constitutional principles of democratic engagement, freedom of speech and freedom of assembly. There appears to be a deep divergence between the government’s approach in this context and in others. For example, in relation to education, academia and issues of discrimination, the government is quick to demand ‘free speech’ and call for protection against an apparently authoritarian erosion of debate. However, when faced with rising disagreement about one of the most recognisable features of our constitution, the government seems to resort to policing and criminalisation. This raises a particular concern if protest is a form of the most accessible speech, since it is cheap and open, not necessarily limited to those who occupy media platforms or prestigious jobs.

Viewed in this way, the Public Order Act 2023 is more dangerous than the better-known Treason Acts. That is because its technique of control is insidious in a way that those more dramatic statutes are not. Part of its technique is the moderate stigma of ‘public order’: severe enough to leave a mark on the records of those convicted, but not inflammatory enough to provoke the outrage that a charge of treason might. As a result, the coercion of the criminal law still operates, but it does so without rigorous or effective public scrutiny. Through the familiar vehicle of ‘public order’, the government’s ‘anti-extremist’ rhetoric is able to blend into the mundane. Arrests of protestors in the news? Charges of being ‘disorderly’? They are just more of the same—even if they now happen to involve anti-monarchists. In this sense, while the technique of control has characteristics of the older Public Order Acts, it is progressively evolving to manage dissenting voices who, in reality, pose little risk of ‘public disorder’.

Looking beyond the Coronation

A short-term solution may be to repeal the parts of the 2022 and 2023 Acts mentioned here. They are ill-defined and they encourage the worst excesses of discretionary policing. The long-term solution may be more difficult. By normalising the use of the criminal law in this area, particularly in the early stages of arrests and detention, legislators have introduced the most coercive tools into a central constitutional arena. Some politicians’ willingness to criminalise legitimate expressions of opposition is not only alarming because of the risk of arrests and unfair prosecutions as a consequence. It is also alarming because of the less palpable corrosion of impassioned civic engagement and debate.

Hopefully, the events of the coronation have brought renewed attention to the worrying expansion of the criminal law in recent years. By observing the use of ‘public order’ and crimes targeting protesting tactics (such as ‘locking on’), we see how abstract statutory provisions can have a chilling effect when applied to instances of real-life protest. While some may not object to criminalising the most disruptive tactics of environmental protestors, the tamer profile of anti-monarchists should clarify the danger that exists. It is not that anti-monarchists necessarily deserve greater or weaker protection than environmentalists. For instance, some may claim that the existential threat of the climate crisis justifies protest strategies that disrupt our current way of living. Rather, the point here is that anti-monarchists may provide a more obvious example of why using the criminal law in this way inhibits legitimate expression and public assembly on a familiar constitutional topic. To revert to the words of Lord Scott in Rusbridger, the criminal law is beginning to tread on a regular topic of ‘any school debating society’. Although criminalisation may have its place, that place is not in this constitutional debate. Being anti-monarchist may still be treasonous, yes, but it should not generally be criminalised.

Alex thanks Tom Adams, Jacob Rowbottom, Se-shauna Wheatle and Paul Scott for incisive comments on earlier drafts.

Alex Benn is a lecturer at University College, Oxford, and a barrister at Red Lion Chambers.

(Suggested citation: A. Benn, ‘Criminalising Constitutional Debate? Anti-monarchy Protests, Treason and Public Order’, U.K. Const. L. Blog (25th May 2023) (available at https://ukconstitutionallaw.org/))