The Police, Crime and Sentencing Bill: An Affront to Fundamental Rights
MPs are debating the second reading of the new Police, Crime, Sentencing Bill (PCSC Bill). The Bill has been described as a ‘mammoth’ piece of legislation that includes a significant increase in police power, amongst other provisions. A heavily scrutinised aspect of the Bill is the allowance of increased intervention during protests, as well as placing more conditions on ‘static protests’, followed by the threat of severe individual fines. 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). This article will examine the legislative amendments that the Bill proposes against the backdrop of recent events and fundamental rights considerations.
The Bill is considered to be a response to the monumentally influential Black Lives Matter protests and Extinction Rebellion climate movement, which ministers, including Priti Patel, have labelled as ‘inconvenient’ and ‘dreadful’. The sentiments expressed by advocates of the Bill are that it draws a distinction between peaceful protests and ‘activities that inhibit people's lives.
The aforementioned protests, notably the Extinction Rebellion, brought London to a standstill and blockaded major printing presses. The government has sought to make that illegal through restrictive measures. The measures include a ban on obstructing Parliament, courts, critical national infrastructure and the distribution of newspapers and work of broadcast media, as well as imposing start and finish times and maximum noise limits.
The right to protest and freedom of expression is encapsulated in the Human Rights Act 1998, and protests are recognised by the common law as being the “manifestation of the importance attached by the common law to both the right to protest and free speech”. Police commanders have to show that they have taken this into account. It is important to point out that the right is not absolute; it is subject to public safety and crime prevention considerations. However, the issue of whether the police have abused their power has been the subject of a long line of public protest litigation. Notably, the European Court of Human Rights declared ‘kettling’, which occurs where police contain protestors for an indefinite period of time, as lawful, 11 years after the deed occurred. This indicates that any challenge to police power in public protest claims is complex and unlikely to reach a favourable outcome for protestors.
Those who are against the Bill, including the Labour party and Human Rights groups, oppose the Government’s planned crackdown on the right to protest. Amnesty International UK predicts that if the measures become law, there will be more scenes like those at the Clapham Common vigil for Sarah Everard. A strong argument against the Bill is that the police already enjoy a broad range of powers in order to control and restrict protests. Organisers must notify the police in advance, and protests can be prohibited if there is the fear of serious disorder, serious property damage and disruption to the life of the community.
This is what led to multiple arrests during the Black Lives Matter protest and the 2019 campaign of Extinction Rebellion, so there does not seem to be a large gap in legislation regarding protests. There is also a floodgates argument regarding the Bill; if protests can be prohibited because they are too noisy, this would, in effect, lead to all types of protests that generate mass participation being barred. Under Alexei Navalny v Russia (decision of the European Court of Human Rights, 15 November 2018) “… 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…”. Considering this case, the interference that the Bill proposes could be seen as a dangerous affront to democracy.
The clauses pertaining to protesting are clauses 54 and 55, which are set to amend sections 12 and 14 respectively of the Public Order Act (The Act), which presently deals with public processions and assemblies. The proposed clauses extend the police’s ability to place conditions on protests, and they leave open what those conditions can be. As previously mentioned, this includes instances where the level of noise causes a ‘serious disruption to the activities of an organisation which are carried on in the vicinity of the procession’.
The measures are incredibly broad in their scope, giving open-ended discretion for the police, which can lead to abuse under the guise of obscurity. 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 the rights protected under Article 11, and shift the balance of power from the people, to the police. In effect, people will be allowed to protest freely, and without conditions, only if the state machinery chooses to let them.
Bystanders’ perception of what may put them in unease, or what they find disruptive, could be described as entirely subjective. Therefore, to prevent people from chanting as a result of merely increasing the risk of disruption, would amount to a severe restriction on the right of protestors to their freedom of expression. This also goes against the very nature of protests; protests are designed to disrupt and create noise to be effective and to impact others with the expression of their anguish.
What is more, the clauses give the Home Secretary the powers to define what is meant by ‘serious disruption’ for the purposes of the Bill. This provides less scope for Parliamentary scrutiny of the Bill, a process that is fundamental to creating appropriate policy choices; therefore, the definitions should be clearly defined within the Bill, if allowed to pass, in order to absolve this concern.
Prominent Past Protests
Protests have long been an incredibly effective way in which people can express their dissatisfaction in a democratic society.
During The Stonewall riots in 1969 New York, following a police raid, members of the LGBTQ+ community bravely fought against police brutality in a series of riots that eventually led to the gay liberation movement. London Pride, in 1972, was born in response to the stonewall riots. Today, London Pride is attended by millions of people, an ode to the societal changes that can be brought by the mass response to injustice.
The London March against the Iraq War in 2003 included one million protesters marching the streets of London to protest the Afghanistan war and the intention to go to war with Iraq. The protest took place in February; by late March, Britain had launched its bombing campaign in Iraq. But the tide of public opinion turned rapidly against the war, and it contributed significantly to the then Prime Minister Tony Blair’s resignation in 2007.
Circling back to the present day, 2021, thousands have participated in Parliament Squares Protests against Policing of the Sarah Everend Vigil, to make their voices heard outside the seat of government following clashes at a vigil for Sarah Everard. Protestors were calling for the resignation of the Met commissioner, Cressida Dick, and the scrapping of the Police, Crime, Sentencing and Courts Bill. Protestors chanted “Kill the Bill”, which ironically, if the Bill is passed, will no longer be allowed. As with all notable protests, the aim is to bring systemic change; whether the protest will influence the MPs' debate of this Bill will become known by the end of this week.
The PCSC Bill has a number of provisions that give 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. However, the protest provisions are the most controversial. They seem to undermine fundamental rights and do not take into consideration the realities and importance of protests. The fundamental democratic right to protest will be stripped of its wings if this Bill is passed as is. Controversially, the Bill has also been expedited to a second reading in six days compared to the standard two-week time frame for second readings, which lacks sufficient time for public scrutiny.
 R v Roberts (Richard)  1 WLR 2577