Blog by our Jacob Bindman, Russell Fraser and Zehrah Hasan, members of the Garden Court Chambers Protest Law Team.
When the Government announced plans for a Police Powers and Protections Bill in the 2019 there was little warning that it had the right to protest in its sights. However, throughout 2020, as the Black Lives Matter movement resumed widespread protest and Extinction Rebellion disrupted the distribution of the Sun and Times newspapers, it was clear that the Home Secretary was intent on taking action. In her October Tory Party conference speech she characterised these movements as ‘hooliganism and thuggery’ and said she was working with police chiefs to ensure officers ‘have the tools, support and the powers they need’.
The Police, Crime, Sentencing and Courts Bill published on 9 March 2021 and which, passed its second reading on Tuesday evening, signals a major assault on the right to protest. The explanatory note states that ‘changes in the tactics employed by certain protestors, for example gluing themselves to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings such as the Palace of Westminster and newspaper printing works, have highlighted some gaps in current legislation’. But none of these tactics are novel and members of our protest team are well accustomed to representing protestors charged with offences such as criminal damage and obstruction of the highway arising from precisely such conduct.
The existing laws governing static protests and marches hand the police considerable power. Organisers of a planned march must notify the police in advance; police can seek the consent of the Home Secretary to prohibit a march if they fear it will lead to serious disorder; and police can impose conditions on demonstrations if they reasonably believe that it may result in ‘serious public disorder, serious damage to property or serious disruption to the life of the community’.
The effect of the Bill would be to lower the legal tests required of the police to use those powers. Conditions could be imposed on marches and static protests where the noise generated may ‘result in the intimidation or harassment’ or cause ‘serious unease, alarm or distress’ to bystanders. In addition, the conditions the police can impose on a static protest would be widened by allowing their use to prevent ‘disorder, damage, disruption, impact or intimidation’. And whereas before a protestor would only fall foul of failing to comply with any condition if that breach occurred ‘knowingly’ the amended legislation would make it an offence if they failed to comply with any condition ‘they ought to have known’ had been enforced.
Such changes should not be underestimated. In relation to the potential noise of an assembly or procession, conditions may be be imposed if the noise generated by those taking part may ‘result in serious disruption to the activities of an organisation which are carried on in the vicinity’ or if that noise may have a ‘relevant impact’ on persons in the vicinity and that impact ‘may be significant’. And who is it who gets to define these concepts of ‘serious disruption to an organisation’ or the ‘life of the community’? The Home Secretary herself, by virtue of newly created ss.14(11)-(14) of the Public Order Act 1986, handing yet more power to police free expression to the Government.
The technical wording of the Bill may be sufficient to blind some lawmakers to its true effect. But make no mistake, the proposals are aimed at precisely the acts of peaceful protest that groups like Extinction Rebellion engaged in with some success in April and October of 2019. Yet their effect will be felt on a far wider array of causes if they become law. Noisy protests that disrupt the activities of organisations and those people in their immediate vicinity are the essence of ordinary, peaceful protest. Every Londoner will at some stage or another have had to change their route through central London because of a demonstration. Such is the price of living in a society where voicing support for a cause of your choosing is permitted. These proposals seek to whittle that right down to such a degree that any demonstration, large or small, may be heavily restricted or even curtailed altogether. The effect on free expression will be substantial.
Other parts of the Bill also pose significant issues for the right to protest. A new statutory offence of Public Nuisance provides for a maximum sentence of 10 years for anyone who does an act that, intentionally or recklessly, causes serious harm to the public or puts them at risk of such harm. The proposed definition of ‘serious harm’ includes where person suffers ‘serious annoyance, serious inconvenience or serious loss of amenity’. The prospect of criminal offences being committed on the basis of causing (or merely putting someone at risk of) ‘serious annoyance’ is both absurd and frightening. And while the old common law version of the offence may have been ripe for reform, this proposal arrives in the context of a clear assault on the right to protest. Such a low threshold paves the way for the CPS to prosecute acts of civil disobedience that are a feature of any healthy democracy under ever more draconian powers. Any suggestion they would not use such a law for this purpose can easily be rebutted by past experience. In the case of the Stansted 15, charges were brought under an Act that had its roots in the desire to suppress terrorism at airports, with the offence in question carrying a maximum of life imprisonment. Their convictions were eventually quashed by the Court of Appeal on the basis that no such offence should ever have been prosecuted. However, the lesson is clear, the Police and CPS will use whatever power they are given to prosecute activists. Notions of restraint appear to have little place in our current, polarised climate.
It is also clear that marginalised and oppressed groups will remain at the sharp end of these increased police powers. Black, brown and racialised protesters are more likely to face police violence at protests and to be criminalised or penalised for their actions. This was evident from the police’s response to Black Lives Matter demonstrators last summer, with Black Protest Legal Support noting widespread police violence and intimidation, and Netpol concluding that the policing of these protests was institutionally racist.
The Bill’s far-reaching provisions could therefore be used to disproportionately target anti-racist, Black-led protests and quell their freedom of expression. Given the Home Secretary’s comments about the ‘dreadful’ BLM protests, arming the Government of the day with more power to define what types of protests are allowed to occur presents a clear danger of silencing those who do not find favour with it. Such ideas should be anathema in any liberal democracy.
The police have relied heavily on COVID-19 regulations to quash dissent over recent months. Demonstrators and a journalist were arrested at Folkestone Napier barracks in January 2021, where 400 asylum seekers are being held. The organiser of a protest against the Government’s proposed 1% pay raise for nurses was fined £10, 000 for their trouble.
Given there is currently no explicit protest exemption in the regulations, the police have interpreted COVID-19 laws to enforce effective protest bans across the country, seemingly without taking proper account of Articles 10 and 11 of the ECHR. Last weekend’s vigil at Clapham Common organised to remember Sarah Everard was met with aggressive policing and enforcement action. Police again used COVID-19 regulations to fine and arrest attendees, as well as to disperse people from the area. This is despite a High Court judgment on Friday clarifying that protest can in principle be lawful during the pandemic, given the importance of human rights protections, and it is up to the police to assess proportionality.
With exceptional Covid-19 restrictions coming to an end as the pandemic recedes, the answer to their heavy handed use and interference with the fundamental right to protest should not be to hand yet more power to the authorities to restrict the public’s right to protest.
Ultimately, aside from being dangerous, these proposals are totally unnecessary. The suggested ‘gaps in the law’ simply do not exist. An enormous number of protestors from the XR demonstrations in 2019 have been prosecuted and convicted for little more than refusing to leave an area when requested for sitting down in the road. These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all, regardless of the importance of the issue or the absence of violence or damage to property by those involved. Such laws may make the job of the police a little easier and shield Ministers and corporations from public dissent, but who would wish to live in a society where such matters are guiding principles of legislation?