The Police, Crime, Sentencing and Courts Bill, which has just gone through the House of Lords and will soon return to the Commons, is a miscellany. Not all of it is controversial, but it has two highly contentious elements: first, the government wants to add more weapons to the state’s formidable arsenal of measures to restrict public protest. The House of Lords has thrown out some of them, but that may prove only a temporary reprieve if the Tories continue to need ‘red meat’ to feed their supporters. The second is the criminalisation of ‘unauthorised encampments’, tacitly aimed at Travellers and Roma. The House of Lords voted in favour of the harsh restrictions put forward in the Bill.
The freedom to protest has been subjected to increasing legal controls in recent decades. The Public Order Act 1986, enacted in the wake of the 1981 riots and the miners’ strike, codified and clarified the law on public order offences, giving clear definitions of riot, violent disorder, affray, and threatening and disorderly behaviour. But its measures do not restrict peaceful protest. The POA also gives statutory authority to the police to require advance notice of protests, whether ‘processions’ or ‘assemblies’. A senior police officer can impose conditions ‘as appear to him necessary to prevent disorder, disruption to the life of the community or intimidation’. They can also prevent assemblies and processions from taking place. The conditions on a protest are left to the discretion of the senior officer, and can be imposed in advance or while the event is underway. A route can be mandated, or a venue, a maximum number of participants and a fixed duration – whatever measures ‘appear to him necessary’.
The 2021 Bill amends the circumstances under which conditions can be imposed. ‘Significant delay to the delivery of a time-sensitive product to consumers’ is specified as constituting a ‘serious disruption’, as is noise (the Lords rejected the noise amendment, but it may come back when the Bill returns to the Commons). Since the 1986 Act came into force, the authorities have acquired many more powers both in statute and common law: they can give ‘dispersal directions’ if a demonstration is ‘reasonably’ believed to be likely to cause alarm or distress to people in the area, order people to remove face coverings, put up roadblocks and kettle demonstrators for hours without food or drink (the courts have decided this isn’t a deprivation of liberty under Article 5 of the European Convention on Human Rights). In 2004 Peter Hain, then the Labour Leader of the House of Commons, introduced laws designed to curb anti-war protests in Parliament Square. The Serious Organised Crime and Police Act 2005, aimed at the Iraq War protester Brian Haw, included a ban on using tents, sleeping bags and megaphones in the square. In the debate in the Lords last month, Lord Hain – an anti-apartheid activist in South Africa before becoming a Blairite MP – seemed to have changed his mind, claiming that ‘the Bill represents the biggest threat to the right to dissent and non-violent protest in my lifetime. It is deeply reactionary. It is an authoritarian attack on the fundamental liberties of our citizens.’
Many of the most extreme measures were added to the Bill after its passage through the Commons. The government introduced new offences: ‘locking on’ and ‘being equipped to lock on’ (when protesters attach themselves to some immovable object); interfering with major transport works; interfering with ‘key national infrastructure’ – road, rail, airports, harbours, oil refineries and distribution – and printing presses. They also want to give the police the power to stop and search anyone at a protest ‘without suspicion’, if they ‘reasonably believe’ that one of these new offences is likely to be committed in the area over a 24-hour period.
Most draconian of all is the Serious Disruption Prevention Order. It has two forms: it can be added to the penalties given when a person is convicted of a protest offence, but it can also be given to someone who has been convicted of two such offences within the last five years, or has breached an injunction, or has done things that caused, or were likely to cause, serious disruption to at least two people or an organisation. The order would ban the person from taking part in any future protest and confine them to a particular place when a protest is taking place. This is a hybrid criminal-civil order – ASBOs were the first example – of the sort used by governments as a short cut. The standard of proof for issuing this order is the balance of probabilities, not the higher criminal standard, and the court can extend the order indefinitely. Breaching the order is a criminal offence, not a civil one, however, and carries a term of imprisonment.
The Conservative minister Lady Williams told the House of Lords that these provisions were aimed at ‘the sorts of tactic we saw from Insulate Britain last autumn’ (when they blocked the M25 and other major roads). We can trust the police to enforce them proportionately, she said. Experience suggests otherwise. When Extinction Rebellion carried out protests in London in October 2019, the Metropolitan Police issued a condition under the POA ordering demonstrators to leave by 9 p.m. They then arrested people who had occupied part of Oxford Street for breaching this condition. A group of protesters including the Green MP Caroline Lucas challenged the police action in court, and won, because the police were found to have exceeded their powers by including the whole of London as the venue of the ‘assembly’. The court decided that the condition was too vague for anyone to know which demonstration they could safely join. ‘The power is there to help the police manage protests,’ Lucas said, ‘not shut them down altogether.’
Juries seem often to sympathise with protesters. A jury in Bristol refused to convict the four people accused of criminal damage for pulling down the statue of the slave trader Edward Colston and heaving it into the river; XR activists who climbed onto the roof of a train in London in 2019 were acquitted, as was Roger Hallam, a founder of XR, who sprayed ‘divest from oil and gas’ on the walls of King’s College London. If anything, coercive laws sharpen activists’ will to make their mark. The Insulate Britain group serenely refused to obey injunctions preventing them from blocking roads and went to jail for contempt of court.
The rules of Parliament mean that the government can’t reintroduce measures voted down in the Lords if they were added after a Bill left the Commons. In this case, the Lords blocked the amendments making ‘locking on’, interference with national infrastructure and obstruction of major transport works into new offences; they also voted down Serious Disruption Prevention Orders and suspicionless searches of people at demonstrations. These measures will probably reappear in new legislation. Lord Walney (formerly the Labour MP John Woodcock, now a crossbench peer) claimed that the protest clauses in the Bill were ‘designed to protect the primacy of our democracy’. How odd, then, that they were not in the version put before the democratically elected Commons. Instead, the unelected Lords had to stand up for the freedom of the public to protest. The restrictions on protests in Parliament Square, the criminalisation of one-person protests and the noise condition – all previously passed by the Commons – are likely to be reintroduced. Parliamentary ping-pong will then return the Bill to the Lords for more debate.
The Lords had less regard for Travellers than for protesters. The number of legal pitches has dropped hugely in recent decades, partly because the 1994 Criminal Justice Act abolished the duty of local councils to provide authorised sites. The Lords nevertheless approved provisions to criminalise ‘residing on land without consent or in a vehicle’ when ‘significant disruption’, ‘significant damage’ or ‘significant distress … is likely to be caused’. The wording is alarmingly imprecise: no actual distress need be caused, it just has to be ‘likely’. The person likely to be distressed is not identified. Failing to comply with a private individual’s request to leave their land will become a criminal offence. The police will have power to seize vehicles (homes, in other words) and ‘any other property’ on the land in question. If a person is regarded as having thus made themselves intentionally homeless, they may be ineligible for support from local authorities. A policy of unhousing people who lead a nomadic life, merely because they have camped on someone’s land without permission, is simple cruelty.