Article by Netpol, originally published on 22 June 2021, available here.
The Policing Bill was passed by the House of Commons on 6 June 2021, by 359 votes in favour, and 263 votes against. The Bill will now go to the House of Lords for consideration. Civil society organisations are maintaining the pressure on the streets and via petitions in their struggle for protection of freedom of peaceful assembly rights.
A legislative scrutiny report on the public order section of the Police, Crime, Sentencing and Courts Bill, published today by the Joint Committee on Human Rights (JCHR), a parliamentary committee made up MPs and peers, says proposed restrictions on protests are “inconsistent with our human rights and… deeply concerning.”
In a press statement for the launch of the report, the Chair of the Joint Committee, Harriet Harman MP, described proposals to allow police to restrict noisy protests as “oppressive and wrong” and that the government had “served up confusion where clarity and precision is essential”. The JCHR has proposed a series of amendments to the Bill.
The report, which follows evidence sessions that organisations including Netpol gave oral evidence to, raises serious concerns about the government’s proposed legislation. It says a new noise ‘trigger’ for imposing conditions on protests “is neither necessary nor proportionate” because “making noise and being heard are fundamental to protest” and should “only be limited in extreme circumstances”.
The JCHR says using vaguely defined terms like “serious unease” as reasons to impose restrictions creates uncertainty for those organising and participating in protests and that leaving “an excessive degree of judgment in the hands of a police officer… fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.
It adds that a regulation giving the Home Secretary the power to clarify the meaning of such terms is “unacceptable”.
This is not, however, a new problem created by the Bill. Netpol has argued that current police powers are already open to abuse from an “excessive degree of judgment” and that one existing term, “serious disruption”, is often widely interpreted to justify protest restrictions.
One of the reasons we drafted the Charter for Freedom of Assembly Rights, in consultation with national and grassroots campaigning groups, was to seek greater transparency and accountability about what campaigners should be able to expect from the policing of protests.
This matters whatever laws are in place. In our view, this – rather than tinkering with an irredeemably draconian Bill – would offer far greater protections for organisers and participants in demonstrations.
One proposal in the Bill is for a new statutory offence of “intentionally or recklessly causing public nuisance”. There is no reference to the right to freedom of expression or freedom of assembly as a ‘reasonable excuse’ in the proposed new offence’s definition. The JCHR warns that protests are “by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating”.
The JCHR report adds that “the current drafting risks the new statutory offence being broader than the common law offence it replaces” and “offences are already available under existing laws to deal with public nuisance offences such as obstructing the highway”. However, the routine misuse of existing offences is already contentious and our experience working with the anti-fracking movement indicated that many people charged with obstruction of the highway were subsequently acquitted at trial.
We share the JCHR’s concerns that the “lack of collection and publication of data… makes it harder to assess the efficacy of existing laws” and welcome the report’s support for the National Police Chiefs Council and local forces to “ensure the routine recording, collection, and publication of data on conditions imposed at protests” and that “any data must be easily accessible to the public”.
Lack of balance
We welcome the JCHR report’s recognition that “current rhetoric around protest tends to downplay the importance of the right to protest, and instead focuses on discussions about ‘balancing’ the rights of protesters against the rights of members of the public”.
Netpol has long argued that Britain’s senior police officers, who lobbied hard for the oppressive provisions in the Bill, routinely pay lip service to the idea of balance and the scales are always weighted against protesters, who are invariably seen first and foremost as a ‘threat’. The JCHR says:
We support the view expressed by Netpol in their submission to the All Party Parliamentary Group on Democracy and the Constitution’s Inquiry into Respect for the Constitutional Rights to Free Expression and Free Assembly at the Clapham Common Vigil on 13 March 2021 and the Bristol Protests in March 2021 that:
“The language of ‘balancing’, used frequently by policing bodies, is not always helpful. If protest is viewed as inherently problematic and ‘inconvenient’ rather than as a necessary and important element of a free society, the ‘balance’ will almost always fall on the side of maintaining order and preventing crime.”
It adds that the “starting position should always be that peaceful protests should not be restricted and should be facilitated so far as possible”, which is why the report calls for a statutory right to protest to “signal the fundamental importance of the right to protest in a democratic society”.
However, even in the unlikely event that Home Secretary Priti Patel decided to accept this proposed amendment, any explicit statutory right risks rapidly becoming meaningless if it is not matched by explicit guidelines about the practicalities of how protests are policed. The duty to protect and facilitate protests already exists under the Human Rights Act 1998, but that has not stopped the police from ignoring its responsibilities.
How, for example, would plans for the significant expansion of surveillance on campaigners, with a new categorisation – “aggravated activists” – to replace the “domestic extremism” label, fit into the statutory right to protest? Labelling individuals in this way allows the police to actively disrupt entire campaigns and target people they see as key organisers. This has a chilling effect on the right to protest by criminalising and harassing individuals, and continues a longer trend of repressive policing which will remain regardless of whether the new Bill becomes law.
That is one of the reasons why Netpol sees the JCHR’s proposed amendments as insufficient and continues to oppose the Bill in its entirety.