Are new ‘draconian’ protest powers declaring a ‘war on woke’?
Posted On April 21, 2021
What is the new Bill?
The Police, Crime, Sentencing and Courts Bill has passed its second reading in the House of Commons, and has been sent to a Public Bill Committee for scrutiny. This Committee is assigned to consult and take evidence from outside experts and interest groups to inform proposals made to Parliament on the Bill.
The Bill’s primary aims are to target sexual offences, dangerous and reckless driving, serious violence, those who abuse positions of trust and exploit children, and political protesting.
The focus of this blog piece will be on the provisions for political protesting, which have attracted much debate in the media. These provisions demonstrate a keen desire to respond to the increasingly large-scale and disruptive protests seen in the Capital.
What will it do?
The Bill proposes a number of changes for the law on public protests. I have bullet pointed the main changes for ease of reference:
- Static assemblies (as opposed to moving processions) are now treated in the same way as processions are
- i.e: Police have the power to impose any necessary condition on a public assembly
- It will be possible for the police to limit the noise, duration and size of protests
- Includes powers for police to impose conditions on one-person protests
- For the Public Order Act 1986 (POA) the threshold has been lowered from ‘significant disruption’ to ‘serious disruption’
- i.e: the police can impose conditions on a protest if they reasonably believe the event may result in serious disruption to the life of the community or to the activities of an organisation in the area of the protest
- The common law offence of public nuisance will be made into a statutory offence
- The fault element for causing public nuisance has been lowered from intention to breach conditions placed on a protest
- It need only be proven that the defendant ought to have known that there were conditions imposed on the protest that they should have been following
Which rights are implicated?
Multiple rights from the European Convention on Human Rights – implemented into UK law by the Human Rights Act 1998 – are implicated.
- Article 8 – the right to respect for private and family life
- Article 9 – the right to freedom of thought, conscience and religion
- Article 10 – the right to freedom of expression
- Article 11 – the right to freedom of assembly and association
The emphasis here will be on Articles 10 and 11: freedom of expression, freedom of assembly and association.
It is important to remember that none of these rights are absolute. Convention rights that are not absolute do not represent a “trump card” (DPP v Ziegler). They can be legally infringed upon if the conflicting restriction is prescribed by law, for a legitimate aim, necessary and proportionate.
For example, the right to assembly and association can be limited,
“in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”
Each of the rights involved in protesting make provision for similar interests to be considered as a counter-balance to the convention right. In these instances, the various rights involved must be balanced against the particular interest involved.
The right to freedom of assembly and association is subject to further qualification,
“this Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Concerns raised by the Bill
The right to protest enshrined in articles 10 and 11 of the ECHR are fundamental to a democratic society.
The resistance by the police against the organised Vigil held for Sarah Everard sparked debate in the media. Regardless of whether the vigil was lawful under covid regulations, the timing of the proposed Bill did not assist with its popularity. Arguments were made that some provisions within the Bill are a threat to democracy, and, in an open letter to the Home Secretary and Secretary of State for Justice, that the suggested new powers for protesting are ‘draconian’.
It doesn’t help that the Bill, containing numerous provisions in its 307 pages, is being “rushed through Parliament during a pandemic and before civil society and the public have been able to fully understand its profound implications”. Legislative proposals should include input from and consultation of relevant interested parties and the public to ensure adequate scrutiny.
The phrase ‘serious disruption’ is not yet defined. There is a possibility that the phrase could be construed broadly to criminalise what should be lawful protesting and exercise of free-speech. The current form enables the Secretary of State to create regulations for various aspects, including defining the meaning of phrases such as ‘serious disruption’, to confer functions on a local policing body for certain purposes, or regarding sections 12 and 14 of the Public Order Act. Parliament would oversee the use of this power through the procedure used to enact the regulations: a resolution or through the Affirmative Procedure. The concern is that this exposes the provisions to exploitation by the Secretary of State to adapt to changing tactics by protesters to evade the law, and to further political motives. Additionally, this provides an unelected representative with the undemocratic power to make regulations.
Protests, particularly those involving large amounts of people, inherently involve noise. Some are worried that the ability to impose conditions on noise levels will unduly limit the right to protest. Regulating noise levels could prevent protesters’ voices being heard and limit the effectiveness of their protest.
In certain instances, police may prohibit or impose conditions on a protest inappropriately or unnecessarily. In October 2019, the High Court overturned conditions imposed on Extinction Rebellion, which is demonstrative of an instance where the police have overreacted. The policing system in the UK is based on consent . Inappropriate action can erode public faith in the policing system. However, this is potentially outweighed by evidence given below that, on average, the police are usually too hesitant, in favour of the protesters.
The new measures proposed by the Bill must be proportionate to justify interference with a Convention right.
In Bank Mellat  UKSC 39, Lord Reed summarised the different elements of proportionality as determining:
- whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
- whether the measure is rationally connected to the objective,
- whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
- whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
In the interests of brevity, discussion will focus on points 3 and 4.
Balancing the severity of the measure’s effects against the importance of the objective
The Importance of the Objective
The Home Secretary in 2019 (Sajid Javid) raised concerns about the increasingly disruptive protests and the large number of protesters actively seeking arrest. Since then, many protests have followed the trend, sometimes becoming violent. For example, the Brexit, anti-lockdown and Black Lives Matter protests all raised points on concerning protester behaviour: blocking access to Parliament and government buildings, pulling down statues , and injuring, sometimes seriously, police officers. Most recently, ‘unprecedented’ violence was observed as fireworks were set off in the middle of protests and police vehicles set alight.
Given also that polarisation is likely to increase, and advancements in technology will be made, protests have the potential to become even more unruly.
In recent years, protests, particularly in the Capital, have been getting increasingly disruptive. In 2019, £37 million was spent responding to the Extinction Rebellion events in London; more than twice the annual budget for London’s violent crime taskforce. 8,000 officers were deployed, 1,148 activists arrested, and more than 900 were charged. During these protests, printworks were blocked, some emergency services were delayed as roads were blocked and denied access, and much disruption was caused.
Tactics and loopholes in the law exploited
Protesters are often able to obtain legal advice enabling them to overcome loopholes in the current law on protesting. For example, to successfully prosecute someone for breaching conditions imposed on a protest, an intention to breach conditions was necessary. In some situations, protesters have been able to avoid prosecution by covering their ears or walking away when police officers were trying to impose those conditions. The number of prosecutions for breaching conditions of a protest has also increased.
Extinction Rebellion in 2020 adopted the tactic of actively seeking arrest to overwhelm police and the justice system.
Lack of communication
Since social media is often used to coordinate, there is often no clear organiser. This makes it hard to communicate with protest groups, as well as to identify who is responsible for the requirement to notify the police of a plan to protest.
Incoherent and unclear law
Some police officers have mentioned a need for the law to be “pushed to its limits” because the law is overly complex. The law should not be used for purposes other than those that were intended, to do so is to go against Parliamentary intention. The rule of law dictates that there be legal certainty in order for individuals to regulate their behaviour accordingly.
Further, proving or meeting the Crown Prosecution Service charging standards for the common law offence of Public Nuisance is difficult. The Law Commission in 2015 highlighted that the Crown Prosecution Service should not use the common law offence of Public Nuisance when a more specific offence is available. Thus, it was becoming undesirable to use the common law offence.
Overall – Police hesitation & balance not being struck
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services were commissioned by the Home Secretary to look at how effectively the police manage protests. The report suggests that officers on the frontline responding to situations do not have a clear understanding of their powers and responsibilities or the law and authority they possess. Particularly with social media being used to video police conduct, police can be nervous to act in case it is viewed as inappropriate. This sometimes means they act too hesitantly and miss the opportunity to lawfully suppress a protest or protesters.
The report also concluded that, overall, the police do not strike the correct balance between protesters and the rest of the community on every occasion. This balance is usually tipped in favour of protesters. A clearer and more coherent legal framework is necessary to strike the balance: to adequately address the disruption that protests cause, but also uphold the right to protest.
These points illustrate the importance of the objective in restoring balance to the protester-public dynamic, as well as the police-protester dynamic. The impact of protests is becoming increasingly stark, and measures to address the adverse effects and resulting imbalance are essential.
The Severity of the Measure’s Effects
Here, I will mention some cases from the European Court of Human Rights, and some parameters of the new Bill, to discuss what level of disruption is tolerable, and whether the proposed legislation would be unduly severe. This will answer some of the concerns mentioned above, since Strasbourg jurisprudence, by virtue of the Human Rights Act 1998, “influence[s] how legislation should be interpreted and applied by the police forces throughout Europe”.
As mentioned above, protesters are increasingly setting out to deliberately cause disruption. The proposals will address this, giving the police the powers to respond. This is in line with Strasbourg jurisprudence since police are usually given a wider margin of appreciation when protesters deliberately set out to cause disruption, and where the disruption is not merely an inevitable consequence of exercising their right to peaceful assembly (Kudrevičius and Others v Lithuania).
There would have to be a reasonable belief that the noise generated could have a “significant detrimental impact on persons in the vicinity or may result in serious disruption to the activities of an organisation”. There is an exhaustive list of situations where this could be the case included in the Bill, and the test for this would be based on the reasonable man test; i.e: whether a person of reasonable firmness may be intimidated, harassed or suffer serious unease, alarm or distress. The officer making such a decision would have to take into account how many people are likely to be in the area, the likely duration and the likely intensity of the impact on those people. With such parameters, it is unlikely that this condition could be imposed arbitrarily, and therefore, the potential severity of this power is reduced.
There is the chance of a chilling effect from the new provisions. The perceived severity of these restrictions may prevent some from engaging in lawful protest and voicing their concerns and participating in a healthy democracy.
It is imperative that the government consider how they will mitigate the risks associated with the new measures to ensure they are proportionate.
So, does the importance of the objective outweigh the severity of the measure’s effects?
Overall, the risks of the proposed measures can be mitigated by careful wording of the Bill, some changes to several provisions, and conscientious implementation and enforcement of the proposed powers. There are numerous reasons for the protest provisions, and those reasons also demonstrate the significance of the issue. Therefore, the importance of the objective likely outweighs the severity of the protest provisions’ effects.
Could a less intrusive measure be taken?
There is already a wide body of criminal legislation that addresses violence, public disorder and criminal damage. With many protesters’ apparent disregard for current laws, further powers to restrict protests is likely to add fuel to the fire. A potentially less intrusive measure could be to ensure that the police officers on the frontline are given sufficient training to respond to situations, and effectively communicate with protesters. This would diffuse hostility and facilitate safer protests, which is the police’s responsibility.
Additionally, consideration should be given to the effect of the Bill, potentially resulting in a larger number of arrests at future protests, which will burden an already over-whelmed criminal justice system.
The Extinction Rebellion, Anti-Brexit, and Black Lives Matter protests demonstrate that a less intrusive measure is unlikely to be effective. This is for two reasons. Firstly, the severity of the disruption caused is unlikely to be eased by a measure less intrusive than legislation. Secondly, other than insufficient police training, the cause of the difficulty in regulating and managing protests is the law itself. There is a lack of clear law, loopholes in the law are being exploited, and some behaviours not caught by the existing criminal legislation are inadequately addressed by the common law offence of public nuisance due to the difficulties with prosecution.
There are of course lingering concerns for this Bill in its implementation and enforcement. Police and the Secretary of State should bear in mind Strasbourg jurisprudence that suggest the level of disruption tolerable, and the constraints on their powers, to help them strike the right balance. The government should reconsider the power to limit noise levels, or at least set strict guidance on when it is to be used. The legislation itself should define the term ‘serious disruption’, and police officers responsible for making decisions affecting protesters’ rights must receive sufficient training.
Authorities should show a certain degree of tolerance even where there is an element of unlawfulness in protest activities (Chernega v Ukraine), protesters should be allowed to voice their opinions for a sufficient amount of time (Frumkin v Russia) and the police should not intervene too early into the protest (Oya Ataman v Turkey). These are examples of the types of considerations the police and Secretary of State should take into account when exercising their powers.
However, the risk of unsatisfactory implementation and enforcement is not only one that comes with any power, but a risk that can be mitigated, and important to take when balanced with the disruption that it could help prevent.