SYSTEMIC | Episode I | The Erosion Code

TL;DR

• Rights do not have to disappear for their boundaries to move. Change can come incrementally through legislation, delegated powers, regulation, guidance and enforcement practice rather than one dramatic constitutional break.
• Crisis can compress political time. Terrorism, national security, emergency, public order, disruption, safety and harm can create pressure for faster intervention and wider preventative powers.
• Passing a law is only the beginning. Powers created in legislation acquire their practical reach through regulations, regulatory decisions, guidance, policing, technical systems and enforcement.
• The staircase does not move in only one direction. Courts can constrain unlawful exercises of power, Parliament can repeal legislation, and governments and public bodies can reform systems that have gone too far. Those brakes are part of the architecture too.
• Rights do not have a political tribe. The same constitutional questions can arise when the person challenging the State is a protest activist, a gender-critical speaker or someone resisting deportation. The facts and legal rules may be very different, but the recurring question is what power the State has and where the law requires it to stop.
• The consequences are lived, not abstract. People encounter this architecture through arrest, charge, surveillance, restrictions on protest, administrative records and the deterrent pressure created when the boundaries of lawful behaviour become difficult to judge.

What Protects a Right in Britain?

Britain has no single codified constitution containing one definitive list of rights that Parliament cannot touch. Our freedoms are protected through a mixture of common law, Acts of Parliament, constitutional principles, international obligations and the courts. That makes the system flexible, but it also makes it more difficult to see exactly where a right begins, where it ends and who has the power to move the boundary.

At the centre of that system sits Parliamentary sovereignty. Parliament is the supreme law-making authority in the United Kingdom. It can make a law, amend it or repeal it altogether. Generally, the courts cannot strike down an Act of Parliament simply because they consider it unjust, disproportionate or incompatible with a fundamental right. ^[13]

The common law also protects fundamental rights through the principle of legality. Where Parliament uses broad or ambiguous language, the courts presume that it did not intend to override fundamental rights unless it has made that intention sufficiently clear. Parliament can cross the line, but it must confront what it is doing in the legislation rather than rely on vague wording to get there. ^[14]

The European Convention on Human Rights, or ECHR, is an international human rights treaty created through the Council of Europe. The Council of Europe is separate from the European Union. The United Kingdom was involved in drafting the Convention and ratified it in 1951, more than two decades before joining the European Economic Community in 1973. ^[15]

The Human Rights Act 1998 gave most of the rights contained in the ECHR practical effect within UK law. Before it came into force, the United Kingdom was already bound by the Convention internationally, but Convention rights were not generally directly enforceable as such in UK courts. A person seeking a Convention remedy generally had to exhaust the available domestic remedies before taking the claim to the European Court of Human Rights in Strasbourg. The Human Rights Act allowed those rights to be relied upon directly in domestic courts when challenging public authorities, bringing much of that protection into the UK legal system. ^{[16] [15]}

The Human Rights Act also shapes the relationship between individual rights, the courts and Parliament. Public authorities are generally required to act compatibly with Convention rights, and courts must interpret legislation compatibly with those rights so far as it is possible to do so. But the Act does not place the courts above Parliament. If primary legislation cannot be interpreted compatibly, a court cannot simply strike it down or remove it from the statute book. Certain senior courts can instead issue a declaration of incompatibility, formally identifying the conflict while leaving the legislation in force and the Government and Parliament to decide whether, and how, to respond. ^{[16] [15]}

Judicial review allows the courts to examine whether a Minister, police force, regulator or other public authority has acted lawfully and stayed within the powers Parliament gave them. It can also be used to challenge rules made by Ministers under powers delegated to them by Parliament. What the courts generally cannot do is use judicial review simply to overturn an Act of Parliament itself.

The 2025 Liberty case shows how that safeguard works. The Home Secretary used powers delegated by Parliament to redefine the level of disruption required for certain protest restrictions. Liberty challenged the regulations, and the Court of Appeal held that Parliament had not given the Home Secretary the power to make that change. The regulations were unlawful. ^[17]

Parliament had given the Minister power to make regulations. It had not given her power to move the boundary wherever she chose. The court did not overturn an Act of Parliament. It enforced the limit Parliament had already placed on executive power.

Convention rights are not all structured in the same way. Some provide very strong protection against State interference. Others are qualified rights, meaning the Convention itself allows them to be restricted in certain circumstances. Freedom of expression under Article 10 and freedom of assembly and association under Article 11 are qualified rights. The State can therefore interfere with them, but only where the restriction is prescribed by law, pursues a legitimate aim recognised by the relevant Article and is necessary and proportionate. ^[15]

This is where the boundaries become contested. The law may protect the right in principle, while the argument shifts to the meaning of the words used to restrict it. What counts as serious disruption? What counts as necessity? When does prevention become disproportionate interference? How far can public safety justify restricting conduct that would otherwise be lawful?

A right is tested at its boundary. The question is how far the State can move that boundary before the law tells it to stop.

Rights Do Not Have a Political Tribe

A constitutional protection cannot depend on whether we approve of the person using it. If freedom of expression, privacy, family life, protest or due process only matter when they protect people we agree with, they are no longer functioning as universal rights. The difficult cases are usually the ones that reveal whether the protection means anything in practice.

In Miller v College of Policing, that person was Harry Miller, a former police officer who had expressed gender-critical views on Twitter. His speech was lawful, but a complaint led to it being recorded under police guidance as a non-crime hate incident. The Court of Appeal concluded in 2021 that the relevant guidance interfered with his freedom of expression under Article 10 of the European Convention on Human Rights, a right given effect in UK law through the Human Rights Act 1998. The court also found that recording lawful speech in this way was capable of creating a serious chilling effect on public debate. ^[18]

Whether the reader agrees with Miller's views is irrelevant to the constitutional point. The police had entered the territory of lawful political and social expression without the threshold of a criminal offence being crossed. The court examined that intervention against Article 10 and concluded that the system, as it then operated, went too far. As a Court of Appeal judgment, Miller also established legal principles that bind lower courts in England and Wales when later disputes raise the same questions, although different facts can still produce different outcomes.

The institutional response later changed. In March 2026, following a review with the National Police Chiefs' Council, the College of Policing announced major reforms to the recording of non-crime hate incidents. It said lawful free speech was not a police matter and acknowledged that disproportionate use of the process had eroded public trust. Under the proposed replacement approach, personal information would only be recorded where there was a clear policing purpose, with further guidance and training still to be developed. ^[19]

Deportation cases expose the same constitutional architecture from another direction. Parliament has expressly stated that the deportation of foreign criminals is in the public interest and, through section 117C of the Nationality, Immigration and Asylum Act 2002, has set statutory tests governing when Article 8 family and private-life considerations can outweigh that public interest. ^[20]

In HA (Iraq), RA (Iraq) and AA (Nigeria) v Secretary of State for the Home Department, heard together by the Supreme Court in 2022, the issue was how those statutory tests should be applied. HA and RA were Iraqi nationals in settled relationships with British women and had British children. AA was a Nigerian national who relied on the effect that deportation would have on his partner and children. All three had committed criminal offences and were subject to deportation decisions. ^[20]

The legislation required the courts to consider tests including whether the effect of deportation on a qualifying partner or child would be unduly harsh, and, in more serious cases, whether very compelling circumstances outweighed the public interest in deportation. The Supreme Court dismissed the Home Secretary's appeals. These were questions about the interpretation and application of a balance Parliament had already written into domestic law, with Article 8 operating through that statutory structure. ^[20]

Palestine Action puts the same constitutional question into a very different legal setting. Its activities, the allegations against its members and the powers used against the organisation are materially different from the lawful speech at issue in Miller or the statutory deportation tests considered in HA (Iraq). What connects them is the exercise of State power and the legal protections available to the person or organisation challenging it. ^[11]

In Miller, the dispute concerned police recording of lawful expression. In the deportation cases, it concerned Parliament's rules for balancing deportation against private and family life. In the Palestine Action litigation, it concerns proscription, executive power and the qualified rights to expression and association. The facts, politics and legal tests are different. The constitutional question underneath them is the same: what power does the State have, and where does the law require it to stop?

That rights architecture is now itself politically contested. Reform UK has committed to withdrawing the United Kingdom from the ECHR, repealing the Human Rights Act and replacing the existing framework with a British Bill of Rights. Immigration and deportation feature prominently in its case for doing so. ^[21] The Conservative Party has also adopted withdrawal from the ECHR as party policy. ^[22] The Labour Government remains within the Convention while pursuing changes to the way Article 8 is applied in immigration and removal cases. ^[23]

Those approaches change different parts of the architecture. Withdrawal changes the United Kingdom's relationship with the Convention itself. Reform of domestic legislation changes the rules through which rights are balanced and applied while the United Kingdom remains a Convention state. The Human Rights Act currently provides the domestic framework through which Convention rights can be invoked against public authorities in disputes concerning speech, protest, surveillance, policing, family life and other exercises of State power. ^{[16] [15]}

Rights do not divide neatly into left-wing rights and right-wing rights. The person relying on a protection today may represent a cause you despise. Tomorrow, the same legal protection may be the mechanism available to someone whose cause you support. The integrity of the right depends on whether we are prepared to recognise it before we know whose hands it will end up in.

The test of a right is not whether it protects a cause you support. It is whether it still applies when the person invoking it irritates you.

The Legal Alchemy of Control

The legal machinery continues after Parliament passes an Act. Legislation creates the framework, but the practical boundary is often drawn later. Ministers may be given powers to make secondary legislation. Regulators produce codes, guidance and enforcement decisions. Police forces translate statutory powers into operational practice. Courts are then asked whether those institutions have stayed within the authority Parliament gave them.

Broad legal language can become a regulation, a policing policy, a compliance system or an automated process. A power created to address one problem can acquire a much wider practical effect as institutions interpret, implement and enforce it.

The Online Safety Act 2023 is a live example. Parliament created the statutory framework, while much of its practical meaning has developed through Ofcom’s implementation and enforcement of the regime. In February 2026, Ofcom issued provisional findings against the provider of an online suicide forum. On 13 May, after considering the provider’s representations, it issued a final decision finding breaches of several duties under the Act and imposed a £950,000 penalty. The investigation closed in July after changes to the service substantially restricted access for users in the United Kingdom. ^{[24] [25] [26]}

Other parts of the regime were still being built. The Act gives Ofcom powers to issue Technology Notices dealing specifically with terrorism content and child sexual exploitation and abuse content. Depending on the circumstances, a notice can require the use of accredited technology or, in relation to child sexual exploitation and abuse content, best endeavours to develop or source technology meeting prescribed standards. In February 2026, Ofcom reported that this part of the regime was not yet active. By May, it had published its final guidance and its advice to the Secretary of State on minimum standards of accuracy. Further steps, including approval and publication of those standards and the accreditation of technology, are required before the powers can be used. ^{[27] [28]}

Ofcom’s approach to proactive image-matching technology also developed during 2026. In February, it announced that it was accelerating work on measures intended to prevent illegal intimate images from reaching users. In May, it confirmed a recommendation that certain online services use hash-matching technology to detect intimate-image abuse and reduce its spread. Ofcom expected the corresponding amendments to its Illegal Content Codes to come into force in autumn 2026, subject to the Parliamentary process. ^{[29] [30]}

Government policy developed alongside that regulatory work. A consultation launched on 2 March 2026 explored measures including social-media age restrictions, overnight curfews and limits on screen time. ^[31] After it closed, the Government announced that social-media companies would no longer be able to offer their services to children under 16 and later set out additional protections for 16 and 17-year-olds, including default restrictions on social-media access between midnight and 6am. The Government said it intended to lay the first regulations before Parliament by the end of 2026, with the under-16 restrictions expected to come into force in spring 2027. ^[32]

This is the part of the process I think deserves more attention. We tend to scrutinise legislation while Parliament is debating it, but some of the most consequential decisions about what that legislation actually means are made afterwards.

The statute creates the power. The machinery decides what that power becomes.

Rights and State Power: The British Staircase, 1984-2026

Across four decades, the pattern includes expansion, formalisation, safeguards, repeal and constraint. Parliament has created and revised State powers, while courts have intervened when Ministers, regulators or public bodies crossed the boundaries set by Parliament or the law.

Note: This selective timeline tracks the principal movements examined in this episode. Individual Acts can expand State power in one area while creating safeguards or constraints in another.

Taken together, the staircase shows a legal architecture repeatedly rewritten through expansion, formalisation, judicial constraint, repeal and replacement. Each intervention changes the baseline inherited by the next dispute.

Crisis as Consent Engine

A crisis shortens the time available for political response. Governments are expected to act quickly, public tolerance for intervention can rise, and powers that would meet greater resistance in ordinary circumstances can become easier to justify. Sometimes that speed is necessary. Decisions made under urgency can still alter the legal and institutional baseline, even when particular emergency powers are later repealed, allowed to expire or replaced.

• Security: following the 11 September 2001 terrorist attacks in the United States, the Anti-terrorism, Crime and Security Bill was introduced to the House of Commons on 12 November, just 62 days later. It became law little more than a month after that, extending State powers across terrorism, security, immigration, asset freezing, information-sharing and communications data. Part 4 created a detention regime for certain foreign nationals suspected of international terrorism. In 2004, the House of Lords declared that regime incompatible with Articles 5 and 14 of the ECHR. Parliament repealed Part 4 in 2005 and replaced it with a system of control orders. ^{[37] [58] [41]}
• Emergency: the Coronavirus Bill was introduced to the House of Commons on 19 March 2020 and received Royal Assent on 25 March, just six days later. Its substantive Commons stages were completed on 23 March, followed by the House of Lords on 24 and 25 March. The resulting Act created wide-ranging temporary emergency powers across health, public services and other areas while the country was entering an unprecedented national emergency. Most of the remaining non-devolved temporary provisions expired in March 2022, with the remaining temporary non-devolved powers expiring later that year. ^{[50] [59] [52]}
• Disruption: the Public Order Act 2023 moved protest control further towards prevention. Serious Disruption Prevention Orders can impose restrictions for between one week and two years. Breaching an order without reasonable excuse can itself result in up to six months’ imprisonment, an unlimited fine, or both. ^{[54] [60]}
• Protection: the Online Safety Act 2023 requires regulated services to build systems for identifying and managing risks before harm occurs. Ofcom can enforce those duties with penalties of up to the greater of £18 million or 10% of a provider’s qualifying worldwide revenue, and in the most serious cases can ask a court to restrict access to a non-compliant service. ^[24]

Urgency changes the pace at which power can be created and exercised. The immediate response may pass while part of the architecture it produced remains.

Crisis opens the door. Necessity decides how far it opens.

Counterview: The Case Made by the State

Governments justify many of these powers as necessary responses to terrorism, violence, serious disruption, exploitation, public emergencies and rapidly changing technology. The underlying case is preventative: in some circumstances, waiting until harm has already occurred is itself a failure of government.

• Public order powers: the right to protest must coexist with the rights of other people to travel, work, access essential services and go about their lives without serious disruption, intimidation or violence. Serious Disruption Prevention Orders are imposed by courts rather than administratively. The statutory framework requires the subject to be aged 18 or over, sets conditions concerning previous protest-related convictions or breaches of injunctions, requires the court to consider the order necessary for a statutory purpose, and provides rights of appeal. ^{[54] [60]}
• Counter-terror powers: prevention sits at the centre of the justification. If authorities wait until an attack has taken place, intervention has already come too late. Powers including proscription, investigation and disruption are therefore intended to operate before the feared harm occurs. ^[2]
• Surveillance powers: legislation such as the Investigatory Powers Act 2016 places intrusive activity within a statutory system of warrants, authorisation requirements and oversight. The justification is that formalising those powers makes them more accountable than leaving covert activity outside a defined legal framework. ^[49]
• Online regulation: the Online Safety Act 2023 requires regulated services to take greater responsibility for illegal content and risks to users, particularly children, rather than leaving intervention entirely until after harm has occurred. ^[24]
• Proscription: the Home Secretary exercises the proscription power within a statutory framework created by the Terrorism Act 2000. An organisation is added through a legal instrument, and the ordinary procedure requires approval by both Houses of Parliament. The Act also contains an urgency procedure under which an order can be made before that approval is obtained, subject to subsequent Parliamentary approval if it is to remain in force. ^{[3] [4]}
• Parliamentary approval in 2025: the ordinary proscription procedure was used when Palestine Action, Maniacs Murder Cult and the Russian Imperial Movement were placed before Parliament together in a single order. Parliament approved that order. ^[5]
• Deproscription and appeal: the statutory framework also provides a route for an organisation or affected person to apply to the Home Secretary for deproscription. If that application is refused, an appeal can be made to the Proscribed Organisations Appeal Commission. In the Palestine Action litigation, the Government argued that this statutory route should be used instead of judicial review. The courts held that judicial review remained available in the circumstances of that case. ^{[8] [9]}

These powers respond to real threats and legitimate functions of government. Statutory conditions, courts, appeal routes, Parliamentary scrutiny and regulatory oversight are intended to place boundaries around their use. The constitutional pressure appears when those safeguards are tested against what the power becomes in practice.

The existence of a threat can justify a power. It does not remove the need to examine its limits.

The Critique: Mission Creep and Pre-emptive Control

Mission creep begins when a power created for one purpose starts to reach further through interpretation, guidance, regulation or enforcement. The law itself may not change. The circumstances in which the power is used can.

• Broad: wider definitions and loosely drawn tests leave more room for discretion over what conduct falls within them and when intervention is justified.
• Earlier: intervention can move from responding to harm after it occurs towards trying to prevent conduct that might produce harm or disruption.
• Embedded: once a power becomes part of guidance, regulatory systems, databases and operational practice, its use can become an ordinary part of institutional decision-making.
• Chilling: where the boundary is uncertain, people may alter lawful speech, protest or association because they cannot be confident where intervention will begin.

The surveillance of Jenny Paton and her family by Poole Borough Council shows how far a statutory power can travel in practice. The council was investigating whether the family genuinely lived within the catchment area of a particular school and purported to authorise directed surveillance under Part II of RIPA. The Investigatory Powers Tribunal later found that the authorisation did not comply with RIPA, that the surveillance was not proportionate and that the council had acted incompatibly with Article 8 of the European Convention on Human Rights, which protects private and family life. ^[61]

Local authorities were expressly included within the RIPA surveillance framework, and the Tribunal accepted that Poole had genuine grounds for investigating whether the address supplied in the school application was accurate. The failure was in the use of covert surveillance. The council had not established that the operation satisfied the statutory crime-prevention purpose, and the surveillance extended to three young children who were not suspected of committing any offence. The Tribunal declared the authorisation invalid and the resulting directed surveillance unlawful. ^[61]

Parliament later tightened the rules. From November 2012, changes made through the Protection of Freedoms Act 2012 required local authorities to obtain judicial approval before specified RIPA authorisations could take effect. Their use of directed surveillance was also restricted to investigations of offences meeting a seriousness threshold, with limited exceptions. The authorisation still had to satisfy the existing tests of necessity and proportionality. ^[45]

Paton shows the mechanism in miniature. A statutory power reached a public body, the body used it in circumstances later found unlawful, and Parliament subsequently placed tighter controls around its use. The problem is what happens before that correction arrives.

By the time a legal boundary is tested, powers and procedures may already be embedded in institutional practice. They can shape systems and behaviour even without widespread use, while people may adjust lawful conduct simply because they know the power exists.

In the language of this series: the cage is built slowly, then treated as the normal shape of the world.

When Protest Reaches the Jury

Protest prosecutions raise a different question: what is the jury actually allowed to consider? A defendant may accept that an act took place while arguing that the circumstances provide a lawful excuse or other defence. Whether that argument reaches the jury depends on the offence charged, the evidence and the legal directions given by the judge.

Later authority narrowed the circumstances in which Convention proportionality could assist a defendant in a criminal-damage case. In Attorney General’s Reference No. 1 of 2022, the Court of Appeal held that Convention proportionality does not provide a defence where the criminal damage is significant. The argument available to a defendant therefore depends on the offence charged, the scale of the damage and the defence recognised by law in that particular case. ^[67]

Sarti, Hall and Plummer shows the same question under a different statutory offence. The defendants took part in a Just Stop Oil slow march on an A-road in London and were prosecuted under section 7 of the Public Order Act 2023 for interfering with key national infrastructure. At trial, the judge directed the jury that the fact they were protesting was not capable of amounting to reasonable excuse. The Court of Appeal subsequently dismissed their appeals. ^[66]

The Court of Appeal recognised that Articles 10 and 11 of the European Convention on Human Rights were engaged. It held that section 7 created a materially narrower offence than ordinary highway obstruction and that Parliament had remained within the broad margin available to it when defining the offence. The Convention therefore did not require an individual proportionality assessment in every prosecution under section 7. ^[66]

Across these cases, the legal route changes with the offence and the defence available. Parliament defines the offence. Judges determine what arguments and defences the law allows the jury to consider. The jury decides the facts within that framework.

Before a jury can weigh an argument, the law decides whether the argument gets through the door.

Symbolic Mapping: The Courtroom Ritual

The courtroom is a legal venue and a theatre of legitimacy, language and authority. Rules determine what can be said, what can be heard and which parts of a defendant’s story are legally relevant.

• Sigils: “Serious disruption.” “Terrorism.” “Bad character.” Legal and evidential categories that determine which powers, offences, defences and rules of evidence apply.
• Chamber: A bounded space where speech is structured, recorded, time-limited and subject to rules of evidence and procedure.
• Priesthood: Robes, procedure, precedent and the specialised language through which the law interprets what has happened.
• Sacrifice: Motive, context or political meaning may be narrowed where the court determines that they are not legally relevant or admissible.

Judges apply the law governing relevance, evidence and the defences available in a particular case. What reaches the jury has already been shaped by those rules.

Through the Gnostic lens, this is the ritual: lived events enter the courtroom as stories and emerge as legally recognised categories. Experience is translated into offences, defences, evidence, relevance and admissibility before judgment can be reached.

Sigil Summary: Incantations of the Empire

• Disruption: a legal threshold through which protest can become subject to restriction, conditions or criminal liability.
• Terrorism: a statutory category that can trigger powers including proscription, investigation and restrictions on association and support.
• Bad character: an evidential category that can bring information about previous conduct into a criminal trial where the legal conditions for admission are met.
• Harm: a regulatory concept used to define risks and determine when duties, restrictions and intervention begin.

Words are levers. If you do not define them, they can define you.

Final Reflection: Naming the Machine

The machinery develops amid protest, litigation, repeal and reform. New powers, duties and institutional practices can continue to take shape while older ones are challenged, constrained or removed.

Follow the mechanism. Emergency can accelerate legislation. Legal categories set thresholds for intervention. Powers created in statute gain practical reach through regulation, guidance, enforcement and technical systems.

Those movements leave an architecture behind. Courts can constrain an exercise of power. Parliament can repeal a scheme, replace it or impose new safeguards. Governments and institutions can reform systems that have gone too far. Each intervention changes the legal and institutional landscape inherited by what comes next.

Episode I has asked what powers exist, how their boundaries move and where the law requires the State to stop. But before some of those powers can be applied to a person in a criminal case, another question has to be answered: what happened, who did it and what does the evidence actually prove?

In Episode II: Forensic Fictions, we move from law to evidence and examine what happens when uncertainty is lost, obscured or overstated somewhere between the evidence itself and the legal conclusion built from it.

The Machine is not one law, one government or one institution. It is the accumulation.

What can be named can be examined. What can be examined can be challenged.

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