Following the horrific antisemitic attack at a Manchester synagogue in October, the government has announced plans to amend sections 12 and 14 of the Public Order Act 1986. The proposed changes would explicitly allow police to consider the cumulative impact of frequent protests when imposing conditions on public processions and assemblies. This announcement carries a sharp sense of déjà vu: two years ago, the Conservative government attempted precisely this through secondary legislation. The courts rejected it twice. Now, repackaged in response to community safety concerns, the government seeks to resurrect the idea, likely through primary legislation. This brief analysis explores why addressing cumulative impact – even if disconnected from the ‘more than minor’ threshold that proved fatal in the legal challenges – requires nuance if its drafting, and ultimate application, is to avoid disproportionate interferences with the right to peaceful protest protected by Articles 10 and 11 of the European Convention on Human Rights.

The ‘New’ Provisions

Two years ago, former Conservative Home Secretary Suella Braverman exercised the power to define, using secondary legislation, the threshold of ‘serious disruption to the life of the community’, which is one of the statutory bases for police to impose conditions on public processions or assemblies under sections 12 and 14 of the 1986 Act. Braverman’s definition, contained in Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, included cumulative impact but, fatally, this was affixed to a threshold that the impact might result in ‘more than minor’ disruption. In a successful challenge, the Divisional Court in R (Liberty) v SSHD [2024] EWHC 1181 (Admin) deemed the Regulations to be ultra vires. The Court held that ‘Parliament, when it adopted the enabling power, would not have contemplated that it could be used to change the meaning of “serious” so as to lower the protection accorded to the fundamental common law rights of public procession and assembly.’ (at [91]).

In an effort to resurrect Braverman’s Regulations, the Labour government appealed, only to lose again in May 2025, on the same grounds, in the Court of Appeal (Liberty v SSHD and Others [2025] EWCA Civ 571). Following legitimate concerns about antisemitism and community safety, it appears the Labour government will now seek to amend the Public Order Act 1986 – likely in the Crime and Policing Bill – rather than introducing secondary legislation. In seeking to reinstate cumulative impact as a relevant factor, the government has, it seems, omitted the previous definition of ‘serious disruption’ as being that which is ‘more than minor’ (even if using primary rather than secondary legislation would bypass the ultra vires issue in Liberty). This return of ‘cumulative  disruption’ in legislation, though, reveals a cross-partisan response to a particular form of protest—sustained campaigns to maintain constant pressure on decision-makers and, in some cases, to exhaust police resources. Legislating for cumulative impact, though, invites us to pause and consider its potential to depart from the original logic of the 1986 Act, specifically its limits on police power.

Shifting From Conduct-Based to Saturation Point Assessments 

The power of police in sections 12 and 14 to place restrictions they deem necessary to achieve objectives including the avoidance of disruption are, essentially, manner and form restrictions based on the conduct involved in the procession or assembly. A senior police officer may impose conditions where he/she reasonably believes a procession or an assembly ‘may result in serious disruption to the life of the community.’ The focus is on whether the conduct of the assembly or procession— at this time, at this scene, will cause serious disruption. The assessment is individuated: does this particular assembly or procession meet the threshold? The conduct-based model ties the restriction to something the protest has done, or is about to do.

This distinction between individuated and aggregated assessment was relevant to the operation of the powers in the 1986 Act. The Metropolitan Police’s response to Extinction Rebellion’s 2019 ‘Autumn Uprising’ offers an illustration of what happens when police attempt to blur this boundary. The uprising was characterised by many individual gatherings of protestors, in distinct locations across London. Presumably because of the cumulative impact across London, including for police resources, the Metropolitan Police attempted to use the power in section 14 to impose a condition that would have required protestors to cease ‘any assembly linked to the Extinction Rebellion.’ In the legal challenge to this condition, the Divisional Court in Jones & Ors v Metropolitan Police Commissioner [2019] EWHC 2957 (Admin) had to discern what power Parliament really intended to grant the police to control assemblies.  The Divisional Court held that Extinction Rebellion’s Autumn Uprising—despite being coordinated under one umbrella organisation—comprised multiple separate assemblies rather than a single public assembly spanning London. Separate gatherings, divided by time and distance, could not be aggregated by the police into one event for regulatory purposes.

Cumulative impact provisions, then, offer the possibility of operating on a different logic. As discussed further below, they can assess not whether your assembly causes serious disruption, but whether the aggregate of assemblies at a location—now including past, present, and future protests, so even wider than the issue in R(Jones)—generates serious disruption. You are not necessarily being restricted because of what you will do; you are being restricted because of what others have done, or because the location has reached its allotment of disruption.

The Human Rights Law Dimensions

From a human rights law perspective, the maintenance of public order and the protection of the rights and freedoms of others are, of course, legitimate aims the government can rely upon to restrict peaceful protest. The real work happens at the justificatory stage of the proportionality assessment—determining whether particular police conditions, applied to particular assemblies in particular circumstances, strike the appropriate balance. In finding what is appropriate, there is some illumination to be found in the case law of the European Court of Human Rights (ECtHR). This case law suggests, I think, the need for the current government to be more mindful than the last in differentiating three cumulative impact scenarios, the last two of which risk what Baroness Chakrabarti has termed ‘the rationing’ of protest that invites disproportionate restrictions. This is especially pertinent given the recent warning from the Council of Europe’s Commissioner for Human Rights that recent protest powers risk ‘imposing excessive limits on freedom of assembly and expression, and overpolicing.’

Scenario One: Coordinated Campaigns

Imagine police restrict your assembly because you are part of an ongoing coordinated protest campaign designed to maintain constant pressure whether on the government, a public authority or private corporation. You are working in concert with others who have previously protested; you are intentionally contributing to disruption in the same area over a period of time as a strategic choice. Here, a restriction due to cumulative impact does address your conduct—your deliberate participation in discrete but consistent bouts of concentrated disruption. A condition limiting protest to a particular time period, specific place or a number of participants is likely to survive a proportionality challenge. The ECtHR has been clear that ‘physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention’ (Kudrevičius and Others v. Lithuania [GC], no. 37553/05,ECHR 2015, at § 97). What constitutes the ‘normal exercise of the right’ will turn on the degree of tolerance expected in a democratic society, as defined by the specific circumstances and extent of disruption caused (Primov and Others v. Russia, no. 17391/06, 12 June 2014, at § 145). Where accumulated impact impedes the activities of third parties, restrictions will be easier to justify.

Scenario Two: Uncoordinated Location-Sharing

Now consider the more problematic scenario: your assembly faces restriction not because of your conduct, but because unaffiliated protestors have already exercised their rights at this location. You share neither strategy nor organization with these previous demonstrators. Yet location-sharing with uncoordinated protest campaigns has accumulated disruption to saturation point, and your assembly—however modest its individual impact—tips the total into the ‘serious’ category. The 2023 Regulations explicitly allowed for this. They defined ‘relevant cumulative disruption’ to include disruption from ‘any other public procession/assembly…that was held, is being held or is intended to be held in the same area.’. What constitutes an ‘area’ in the 2023 Regulations was left to be determined by the senior officer, ‘having regard to the nature and extent of the disruption that may result from the procession or assembly.’ Crucially, the Regulations added: ‘it does not matter whether or not […] any procession or assembly […] are organised by the same person, are attended by any of the same persons or are held or are intended to be held at the same time.’ Under this definition, a Palestine Action protest last Tuesday, Stand Up to Racism this Thursday, and a far-right demonstration next Monday all count cumulatively toward the disruption total, even though they are separate events with different participants and causes.

In Frumkin v. Russia no. 74568/12, 5 January 2016, the ECtHR observed that the limits of required tolerance by domestic authorities towards protest will depend on specific circumstances, including ‘the duration and the extent of public disturbance caused by it, and whether its participants had been given sufficient opportunity to manifest their views.’ (at § 97). Cumulative impact is, by definition, intolerant of repeated assembly. It treats each new assembly not as a fresh exercise of rights requiring individual assessment, but as an additional increment toward disruption saturation. A protestor at a popular demonstration site, even if peaceful and even if their individual impact is modest, can be restricted by any conditions that appear necessary to a senior officer at the scene because others have previously assembled there. Following the comments in Frumkin, the question should be whether you have been given sufficient opportunity to manifest your views. But cumulative impact answers a different question: has the location already absorbed its allotment of disruption?

Scenario Three: Baseline Disruption at Busy Locations

What of assemblies at inherently disruptive locations? A busy public square adjacent to a major transport hub already absorbs considerable disruption from ordinary urban activity before your protest begins: buses, taxis, endemic pedestrian congestion create baseline noise and movement. Yet these are precisely the sites where protest is most purposeful—where the message has strongest impact and organisers’ autonomy in choosing location matters most. The question that emerges is whether police may attribute to your assembly the pre-existing disruption inherent to that location, and count it cumulatively toward the threshold for restriction.

In Lashmankin and Others v Russia no. 57818/09, 29 May 2017, the ECtHR stressed that ‘the organisers’ autonomy in determining the assembly’s location, time and manner of conduct…are important aspects of freedom of assembly.’ (at § 405). Crucially, ‘the purpose of an assembly is often linked to a certain location and/or time, to allow it to take place within sight and sound of its target object and at a time when the message may have the strongest impact.’ (ibid). Yet if baseline disruption at the location can be counted cumulatively, the protestor’s autonomy to choose meaningful locations is constrained. The 2023 Regulations sought to do just this. They defined cumulative disruption to include ‘all disruption to the life of the community…that may occur regardless of whether the procession is held (including in particular normal traffic congestion).’ Traffic congestion at an arterial route exists independent of your assembly. Noise and congestion in a busy public square persist whether or not you protest there. But under this definition, this baseline disruption can be counted to justify restriction.

This does not sit easily with the phrasing consistently adopted by the ECtHR for determining disruption relevant to the proportionality test. The relevant question is whether protestors structured their demonstration ‘in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances’ (Ekrem Can and Others v Turkey no. 10613/10, 8 March 2022, at § 91). The crucial phrase is ‘exceeding that which is inevitable in the circumstances.’ The test is comparative: does the assembly cause disruption beyond the baseline; that baseline being the non-protest disruption which normally occurs (as alluded to by the preceding reference to ‘ordinary life’) at a busy location, such as a city centre or transport hub. The need for this causal dimension is reinforced by the ECtHR’s observation in Frumkin that the limits of required tolerance depend on ‘the extent of public disturbance caused by it’ (at § 97) — disturbance caused by the assembly or procession, not disturbance pre-existing at the location. When cumulative impact counts baseline disruption as if caused by the protestor, it diminishes this causal nexus.

Conclusion

A reintroduction into sections 12 and 14 of the Public Order Act 1986 of a cumulative impact provision signals the government’s impatience with sustained campaigns of disruption. A critical question is whether cumulative impact addresses conduct or location. In coordinated campaigns—where protestors deliberately use repeated assemblies as strategy to exhaust resources and maintain pressure—cumulative impact addresses actual conduct. The protestors have collectively had opportunity to manifest their views; restrictions such as on the duration or specific location of a procession or an assembly are likely to be proportionate. But if the government’s cumulative impact proposals mirror the 2023 Regulations by not distinguishing where cumulative disruption comes from—from the protestor’s conduct or from others’ prior exercise of rights or pre-existing urban conditions—the risks of disproportionate interferences by police with the right to peaceful protest become very real.

I am grateful to Michael Gordon and Se-shauna Wheatle for their insightful comments on an earlier draft.

Dr Richard Martin is an Associate Professor, LSE Law School.

(Suggested citation: R. Martin, ‘Counting Cumulative Impact: More Public Order Law Additions’, U.K. Const. L. Blog (22nd October 2025) (available at https://ukconstitutionallaw.org/))