MPs to vote on draconian measures to restrict the right to protest

The Policing, Crime, Sentencing and Courts Bill due to be debated in Parliament returns to the Commons on Monday followed by its original delay caused by widespread backlash.

The Bill presents numerous harmful reforms, which, if passed, carry the power to curtail free expression, stifle dissent, and criminalise marginalised groups (especially Gypsy, Roma and Traveller communities) through increased profiling and excessive policing. As such, the Bill poses a significant threat to basic human rights and to the functioning democracy of our society.

Amongst the most profound impacts of the Bill is the threat that it poses to people’s rights to protest. Worryingly, the police would have the power to deploy a host of draconian measures, including a new criminal offence of “public nuisance”. A new statutory offence would be created for intentionally or recklessly causing serious harm or risk of serious harm, which includes any risk of someone suffering “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”. If a gathering triggers a “serious disruption” or “unease” to organisations or buildings within the vicinity, which could include the Houses of Parliament or potentially even a general business losing customers as a result of a rally, the police would be able to impose start and end times for the assembly as well as overall noise thresholds. Meanwhile, those found to be committing a public nuisance could face a custodial sentence of up to ten years.

However, the wording of the Bill does not in itself describe what “serious inconvenience” is or specify how a court should view it. Consequently, police officers will be left to decide what is constituting serious annoyance or inconvenience. Therefore, police officers can impose restrictions and penalties based on a wholly broad and vague basis, using a meaning that can be modified at the discretion of the Home Secretary. In the worst-case situations, police officers would have to depend on their own biases. Without any objective descriptions or guidelines, many individuals who are exercising their rights may be targeted and charged in a discriminatory manner. This could have serious consequences in instances such as protests outside Parliament (as but one example), where accusations of public nuisance could be used to curtail public expressions of political opposition to Government policies and agendas.

Indeed, the Bill also proposes to make it increasingly difficult for peaceful demonstrators to assemble in Westminster. Police would have the authority to detain or remove anybody who prevents vehicles from entering Parliament or is deemed to be causing “disruption”. However, there presently exists a plethora of rules already in place that limit certain types of protesting or acts in the vicinity of Parliament. As a result, tightening controls is not only excessive, but it also risks signalling that Parliament will become a protest-free zone in the future. People having their voices and views heard close and in front of the people assigned to represent them and work with their interests have long been a significant part of British democracy.

The Bill also has the power to suppress the voices of marginalised communities and groups advocating for social change. Black Lives Matter (BLM) is one of the movements that could be disproportionately targeted. The BLM movement brought to light urgent issues of inequality and prejudice and the need for social transformation in the face of increasing institutional racism and over-policing of minority populations. The Bill, on the other hand, would inevitably strengthen the over-policing of minority populations, especially groups whose views disrupt the current political status-quo, with BLM, Muslim, women, and climate change activists being particularly impacted, to name but a few. Thus, it is imperative that MPs support amendments to address inequalities raised by BLM and commit to investigating structural Islamophobia and wider inequalities within the criminal justice system as they currently stand.

These issues are of special concern considering a recent parliamentary inquiry finding that the police “breached fundamental rights” at Kill the Bill protests in Bristol and at the Sarah Everard vigil earlier this year, with police applying a “presumption of illegality”, excessive force, and antagonising protesters. According to the report, both the Avon and Somerset Constabulary and the Metropolitan Police “failed to understand their legal duties in respect of protest” or to “conduct a proper assessment of the proportionality of their actions”. The findings not only underscore the dangers of a lack of clarity surrounding issues such as “public nuisance” and “serious disruption”, but also highlight the need for a full investigation into current policing methods and protocols regarding demonstrations before increasingly draconian measures are considered.

Ultimately, the Bill threatens the rights that underpin a democratic society, and specifically human rights to freedom of expression and assembly enshrined in articles 10 and 11 of the Human Rights Act and the European Convention on Human Rights (ECHR). Article 10 protects the right to hold opinions and express your views as an individual or collective, even if they may be unpopular or disturbing, without interference from the state or public authority. Article 11 protects the right to association such as trade unions, political parties, or any other association or voluntary group, as well as the right to assembly, including peaceful protests.

While articles 10 and 11 are subject to certain limitations, any restriction must be lawful, necessary, and proportionate and must only be applied to protect national security; prevent disorder or crime; protect public health or morals; protect the rights of others; protect against disorder and crime; prevent the disclosure of information received in confidence; or to maintain the authority and impartiality of judges. For instance, there is already legislation in place to legitimately restrict offensive language inciting racial or religious hatred – legislation which alongside other laws can be used in demonstrations just as readily as in any other situation to protect the public. However, the Bill in question is seemingly absent of any introspection regarding how these rights are to be legitimately and proportionately qualified.

This clampdown on protest must be seen within the wider context of the Government’s current attack on the judiciary and in particular the mechanisms that are designed to hold executive power to account. Democratic and free societies are built upon the ideals of equality, justice, and fairness. It is in line with these principles that we expect our governments and public bodies to act, and it is through these principles that we hold them to account when they do not meet this standard. Within this framework, the Human Rights Act 1998, Judicial Reviews, and the right to protest are valuable checks on power and important tools for mitigating and correcting intentional or unintentional state actions that jeopardise the values, rights, and freedoms that we hold dear. This is a fundamental and objective protection against any government’s abuse of power. However, recent times have seen the current Government’s increasing hostility to judicial and other forms of scrutiny, with indications that they wish to remove or restrict avenues to enforce executive accountability. Indeed, the Independent Human Rights Act Review and the Independent Review of Administrative Law (which seeks to examine the “perverse consequences” of judicial reviews) have emerged amid attacks from government ministers and supporters regarding the powers of the judiciary to scrutinise decisions and make rulings which may undermine the wishes of the Government – conflicts which are exemplified by the prorogue of Parliament on what was later ruled to be unlawful advice of the Prime Minister, the unlawful handling of PPE contracts during the pandemic, and discussions of “activist lawyers” representing the rights of vulnerable people to remain in the country. This Bill extends these attempts to restrict avenues for public scrutiny further by targeting protests and would critically endanger both functioning democracy in the UK and human rights to freedom of expression and assembly enshrined in articles 10 and 11 of the Human Rights Act and the ECHR. 

Consequently, MEND urges MPs to defend democracy and our human rights by:

• Supporting amendments to defend the right to protest and committing to investigating heavy-handed policing and overreach at demonstrations.
• Supporting amendments to address inequalities raised by BLM.
• Committing to investigating structural Islamophobia and wider inequalities within the criminal justice system.
• Supporting amendments to scrap measures targeting Gypsy, Roma, and Traveller communities and to investigate hate crimes against them.