Police, Crime, Sentencing and Courts Bill 2021 (“PCSC Bill”) – Briefing for MPs

“Freedom of assembly as enshrined in Article 11 of the Convention protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote… Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it…”

Alexei Navalny v Russia (decision of the European Court of Human Rights, 15 November 2018).

Summary

• The PCSC Bill seeks to make the first major changes to the Public Order Act 1986 since 2003.
• As drafted, the Bill represents a serious threat to the right to protest. The **provisions threaten to neuter protests in ways that would render them ineffective ** – effectively taking away one of the only ways in which people can express their dissatisfaction in a democratic society.
• The Bill renders the UK an outlier when it comes to international human rights norms around the right to peaceful assembly.
• The Minister for Policing promised last summer in Parliament that the right to peaceful protest “will never be curtailed by this government”. However, this Bill attempts to do precisely that.
• Our view is that these provisions in the PSCS Bill should be dropped. But, given their importance to the functioning of democracy, if they are to be considered, it should be carefully rather than being rushed through on an expedited timetable in the middle of a pandemic.

The legal context

1) The rights to freedom of expression (Article 10) and freedom of peaceful assembly (Article 11) are closely guarded under the European Convention on Human Rights (ECHR).

2) The European Court of Human Rights [The United Kingdom was a founding country] has consistently reiterated that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Article 11 should therefore not be interpreted restrictively. In domestic law, the right to peacefully assemble and protest is recognised as the “manifestation of the importance attached by the common law to both the right to protest and free speech” (R v Roberts (Richard) [2019] 1 WLR 2577).

3) It is important that these rights are given meaningful effect. Protests can and must be protected even if they have the potential for causing inconvenience. ECHR case law is also clear that any restrictions must be necessary in a democratic society and must respond to a pressing social need and not merely be ‘useful’ or ‘desirable’ (Gorzelik and ors v Poland [GC], judgment of 17 February 2004, No. 44158/98).

The protest and public order provisions of the PCSC Bill (clauses 54-60)

4) Clauses 54 to 60 of the PCSC Bill contain a series of measures that seek to clamp down on public assemblies and processions. Good Law Project’s view is that these clauses represent a significant assault on civil liberties and democratic rights, will have a chilling effect on our right to protest, and result in the disproportionate criminalisation of peaceful activity.

Imposition of conditions

5) Clauses 54 and 55 amend sections 12 and 14 respectively of the Public Order Act, which deal with public processions and public assemblies. These raise two grounds for concern – first, they significantly expand the police’s ability to place conditions on the right to public processions and assemblies and second they leave entirely open what those conditions can be.

**6)**Taking them in turn, the clauses first introduce a new trigger for the conditioning of protest– either if there is a level of noise that could cause “serious disruption to the activities of an organisation which are carried on in the vicinity of the procession” or if the noise is such that there may be a “relevant” and “significant” impact on persons in the vicinity. These are incredibly broad in their scope, and liable to misuse and misinterpretation.

7) The provisions as formulated also contravene international human rights norms, which suggest that the rights under Article 11 must be protected even if they cause a certain level of disruption to ordinary life2. As the matter was put in the case of Kuznetsov v Russia:

“any demonstration in a public place inevitably causes a certain level of disruption to ordinary life… and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.”

8) The wording of the relevant clauses would capture nearly every protest and justify police restrictions in nearly every case. This would appear to significantly undermine Article 11 rights and shift the balance of power from the people to the police – people will effectively be allowed to protest freely and without conditions only if the state machinery chooses to let them.

9) The most egregious aspect of these new ‘noise’ provisions is that they go as far as to suggest that the noise generated by persons taking part in assemblies/processions could amount to a relevant impact on persons in the vicinity if, among other things, they lead to “intimidation or harassment of persons of reasonable firmness…” or if such persons “suffer serious unease, alarm or distress”. The issues with this are plain to see:

• This is a serious expansion of the Public Order Act. Bystanders may find a range of chants intimidating or feel unease at protests if they disagree with the cause. However, to clamp down on persons chanting when there is a chance that it ‘may’ cause these effects would amount to a severe restriction on the Article 10 rights of protestors.

• It is also likely to be unworkable in practice. Police officers will have to make judgments on whether, for example, specific chants may be considered ‘intimidating’ or ‘harassing’ and what the intensity of the impact of any noise is. Further, the words ‘unease’, ‘alarm’ and ‘distress’ are so vague in this context as to be meaningless. They leave the door open for misuse and misinterpretation.

• The provisions also fundamentally look past the very nature of protests. Protests are necessarily noisy given that they are designed to have an impact and express one’s strength of feeling. In the case of Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, Mr Justice Laws (in our view, rightly) describes the margin that must be given to protests: “Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.” To regulate them in a way that strips them of their fundamental characteristics is to render them pointless.

• Given that a breach of a condition imposed under sections 12 and 14 of the Public Order Act is a criminal offence, expanding the scope of the offences to cover even peaceful and non-violent protests is likely to fall foul of the protections under Articles 10 and 11. In Alekhina v Russia (2019) 68 EHRR 14, the European Court of Human Rights was clear that “peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence…”. The Bill does the exact opposite. It establishes a new offence where a person breaches a condition that they “ought to have known” existed – thereby criminalising inadvertent breaches. To compound that, it also increases the maximum custodial sentence where an organiser breaches a condition from 3 months to 51 weeks, and increases the fines for other protestors breaching a condition.

• It is difficult to escape the conclusion that an attack on the making of noise is a disguised attack on the very nature of the right to protest. As was noted in Galstyan v Armenia (2007) 50 EHRR 618:

“The Court, however, finds it hard to imagine a huge political demonstration, at which people express their opinion, not generating a certain amount of noise.”

It is telling that some of the leading cases on the freedom of assembly expose how we are aligning our laws with States whose disposition towards protest and democracy differs so profoundly from our own.

10) Turning to the conditions themselves – the provisions of the Public Order Act are expanded to allow a senior police officer to impose any conditions they consider necessary to prevent “disorder, damage, disruption, impact or intimidation”. When read in this context, the inclusion of the word “impact” in this and other parts of the Bill is absolutely remarkable: the very object of exercising the right to protest is to have impact. Treating impact as a wrong to be conditioned exposes the breadth of the Government’s ambition to meaningfully remove the right to protest. In addition to conditions on where and when protests can take place3, the conditions placed could include imposing maximum noise limits and even a ban on a specific protest.

11) More specifically, Clause 57 expands the protected area around Parliament where particular activities cannot take place. This creates a further hurdle that will restrict rather than facilitate protest.

Hoarding of power by the Secretary of State

12) Clauses 54(4) and 55(6) give the Home Secretary untrammeled powers to make regulations to define what the phrases “serious disruption to the activities of an organisation which are carried on in the vicinity” or “serious disruption to the life of the community” mean for the purposes of the Public Order Act. This broad power – the latter phrase is particularly vague – could be exercised with little or no parliamentary scrutiny, and in ways that would expand the scope of the powers under the Bill once passed.

13) The practice of Government giving itself power to make major policy changes has already been subject to considerable criticism in other contexts. We have significant concerns that the powers in this context could be misused in ways to stifle dissent and target specific protests. It is therefore crucial that this clause is removed from the Bill. If the phrases are to be defined, this must be done through the PCSC Bill so that they can be fully scrutinised by Parliament.

Criminalising public nuisance

14) Clause 59 of the Bill proposes replacing the common law offence of public nuisance with a new statutory offence. While this clause more or less mirrors the Law Commission’s recommendations in 2015 – including the welcome inclusion of a ‘fault’ element – it is still worrying in its breadth when seen in the wider context of this Bill.

15) In particular, the fact that this broadly-defined offence is now subject to a maximum custodial sentence of ten years (which the Law Commission did not specifically recommend) is a cause for concern. The only safeguard against being charged under this provision is that there was “a reasonable excuse” for the specific act in question. However, the burden of proof would rest on the person being charged and would only be available post facto. In practical terms, a person may be prevented from continuing to protest under the threat of being criminally charged for causing nuisance even if it is later established that they had a reasonable excuse.

Ambiguity and the potential for misuse

16) The clauses set out above individually raise points of concern. But the cumulative effect is likely to be deeply damaging:

• The police will have considerable scope to test the limits of their own powers. The reality of protests is that police are likely to be more heavy-handed than less. As Professor David Meads (who specialises in the law of protest and public order) observed: “Th(e) real problem for protesters and activists is not (always) so much the law – the legal rules and position – but how this is implemented and interpreted on the ground by officers; generally speaking the wider framed the law, even more widely used will be the operational power”.

• While at a theoretical level, the police are required to interpret their powers proportionally and only use them when necessary, the policing of protests is dictated by how the law is interpreted within the force. The more vague the law, the more the scope for it to be misapplied.

• The logical consequence of the above is that people could be dissuaded from marching or demonstrating. Even if people did march or demonstrate, there is the possibility that the police would impose conditions that are not legally valid and will result in protests being shut down. All of this will likely have a chilling effect on law-abiding peaceful protesters. It is of little practical value to say that these conditions can later be challenged in court.

Conclusion

17) The PCSC Bill has a number of provisions that give us cause for concern – from its criminalisation of encampments in ways that threaten to discriminate against the Gypsy, Roma and Traveller communities to its failure to properly consult on provisions that could entrench racial inequality in the criminal justice system.

18) However, the protest provisions are particularly pernicious. They a) deal with a problem that does not exist; b) do not reflect the reality of protests; and c) in doing so, threaten to undermine the rights under the ECHR and the Human Rights Act. In our view, they are neither necessary nor proportionate. The Public Order Act was never designed to be a means to quash peaceful assemblies.

19) It is worth stressing that these rights are universal – they protect peaceful protest whatever the cause. The Parliament should be defending these rights and not rushing to erode them. There may be arguments that the powers under the Bill will only be used in extremis. However, as the recently released Chief Inspector’s report highlights, the stance of the police is that they need more powers not less. It is unrealistic to assume that officers – often following police guidance and handbooks – will not test the limits of these widely framed provisions. It is Parliament’s duty to ensure that there is no scope for that.

20) Where any changes to the fundamentally important right to peaceful protest are to be made, they should be carefully considered – not forced through in the middle of a pandemic on an expedited parliamentary timetable. Stripped of the safeguard of proper Parliamentary consideration, Good Law Project believes the changes must be resisted.

1 See, for instance, paragraph 98 of Navalny v Russia [GC], judgment of 15 November 2018, No. 29580/12.

2 See para 44, Kuznetsov v Russia (judgment of 23 October 2008, No. 10877/04)

3 While not the stated objectives of these provisions, this could have a knock-on impact on pickets and protests outside workplaces. When combined with the “serious disruption to the activities of organisations” provision, these powers could be used to clamp down on commonplace union activity. In that context, we note that the right to picket and protest is a fundamental human right which is safeguarded by the ILO Convention (Article 3), the European Social Charter (Article 6(4)) and the ECHR (Articles 10, 11 and 14).

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