In this article, GMLC campaign volunteer leads Jacob Quested Khan and Avaia Nightingale Williams consider the Public Order Bill and highlight the key issues it raises, as well as the important and regressive impact this would have on our right to protest.
Introduction
The Police Crime Sentencing and Courts (PCSC) Act 2022 is a piece of legislation that massively extends the rights of police and the state to curtail protest rights and punish protesters. It was passed in spring 2022 after a year of protests, anger and opposition from the House of Lords.
Further new powers were sought by the government in 2021 via lengthy late-stage amendments to the PCSC Bill. These amendments, had they passed, would have had the effect of limiting and/or targeting protest even further. This proved controversial, resulting in the House of Lords voting against all but one of these amendments.
The amendments previously quashed have re-emerged in the Public Order Bill now making its way through Parliament. The Government has stated that these new measures will balance the rights of protesters with the rights of others to go about their business unhindered. The Bill is currently at Report stage in the House of Commons, meaning it is likely to pass the Commons’ scrutiny and move on to the House of Lords once more. Though the House of Lords can propose amendments to legislation and slow it down, it is extremely rare for them to reject legislation that has been passed by majority in the Commons. The last time the House of Lords rejected a Bill was in 2007.
This Bill would build upon the powers in the PCSC Act in limiting protest rights. Greater Manchester Law Centre campaigned against the far-reaching powers in the PCSC Act along with thousands of others up and down the country.
This included the work of groups such as JUSTICE and Liberty, who also highlighted the notable impact the Public Order Bill would have on our ability to protest as we know it.
There are three main troubling aspects of the Bill, discussed below.
SERIOUS DISRUPTION PREVENTION ORDERS
Perhaps the most notable and controversial new power afforded by the Bill would be the ‘Serious Disruption Prevention Orders’, otherwise termed ‘Protest Banning Orders’.
The rights to freedom of expression (Article 10) and freedom of peaceful assembly and of association of others (Article 11) are protected by the European Convention on Human Rights (ECHR), currently incorporated into domestic law by virtue of the Human Rights Act 1998. A restriction on freedom of peaceful assembly is said by the European Court of Human Rights (ECtHR) to be permitted only where someone ‘does not himself commit any reprehensible act’.
It is difficult to see how simply causing annoyance or disturbance would get over this stringent hurdle. However, the Bill seeks to ensure this is possible using an additional section, which states that a court will be able to impose an SDPO where someone has, on at least 2 occasions been:
- convicted of a protest-related offence;
- been found in contempt of court for a protest-related breach of an injunction;
- carried out activities related to a protest that resulted or could have resulted in serious disruption;
- caused or contributed to other persons committing protest-related offences or breaching protest-related injunction; or
- caused or contributed to another person carrying out protest-related activities which resulted or could have resulted in serious disruption.
These powers are concerning for many reasons.
Broad and wide ranging
Under the Bill as it stands, SDPOs have differing effects based on whether they are made with reference to a conviction of a ‘protest-related’ offence or ‘without’. If ‘without’, magistrates can make an SDPO if they are satisfied that, on the balance of probabilities, someone has committed one of the offences set out above in items a) to e). It is important to note that this standard of proof is lower than the usual criminal standard, that being beyond reasonable doubt. Exceptionally, the court would also be able to hear ‘unsafe’ evidence, including evidence obtained illegally and by hearsay, which means any decision made by the court could be based on unsound evidence.
The criteria that someone must be either involved in a protest-related activity or ‘caused someone else to take part in’ one, and that the offence includes penalties for action which ‘could have’ resulted in serious disruption, are arguably both vague and arbitrary. They leave a worrying and wide scope for someone to fall within the offence and could cover actions such as leafletting or holding a banner. Whilst protest activity may be the main stated aim, it is entirely plausible that unrelated activities such as walking near a protest could be ‘one strike’ towards an SDPO.
Serious consequences and impact
Whilst these orders are made via civil process, there are criminal consequences: namely, 6 months’ imprisonment, an unlimited fine, or both. Notably, any relevant behaviour within the previous 5 years can be considered (from the date of the Act coming into force if it passes).
Moreover, it allows intrusive conditions to be included, such as tagging to monitor people and prevent them from attending certain locations or associating with certain individuals. The impact of such SDPOs could lead to the inability to fully take part in civil life. This could include things such as a public religious event or a political rally.
In effect, someone receiving an SDPO would have their right to protest suspended. An SDPO would last between 1 week and 2 years, although crucially there is no limit to the number of times that an SDPO can be instated. And so, as it stands, an SDPO could be renewed indefinitely and effectively suspend someone’s Article 10 and Article 11 rights, which would exclude them from protest on pain of imprisonment. During an SDPO, the government writes that people might have to wear an electronic tag – despite never having committed a criminal offence.
STOP AND SEARCH POWERS
The new raft of stop and search powers that would be brought in by this Bill, currently contained within sections 9 to 13, are expansive, counterproductive and possibly even discriminatory (as submitted by Amnesty International to the Public Order Bill Committee).
The drafted powers would enable a police officer to stop and search someone in connection to a protest-related offence or for having on them ‘objects’ relating to a protest-related offence. Whilst this Bill would generally require reasonable suspicion of one of the offences contained within, this would also allow – once authorised by an officer of Inspector rank or higher, for a set area and time period not exceeding 24 hours – an officer to arrest someone without the requirement for any suspicion. These are similar to powers in s.60 Criminal of the Criminal Justice and Public Order Act 1994, which has already been argued to result in drastically disproportionate application to those from minority backgrounds.
Not only is this arbitrary but it also has the effect that those with no connection to any possible crime can be stopped and searched simply for being within a location deemed inappropriate by the police. This is distressing and unnecessary, and risks criminalising us all.
RAFT OF NEW PROTEST-RELATED POWERS/OFFENCES
Locking on
Section 1(1) of the Bill states that a person would commit an offence if they physically attach themselves, another or an object to another person, object or land and this attachment ‘Causes or is capable of causing serious disruption to two or more individuals, or an organisation’.
This is an extremely broad offence and could cover all manner of activities. If convicted of this offence, then a person can receive up to 51 weeks in prison and an unlimited fine.
The pressing questions are: how could this be determined and with reference to what? An impact on two people or a business is in essence any act in the subjective opinion of a police officer. Clearly, this could in effect ban ‘locking on’ full stop. The phrase ‘physically attach themselves’ is also vague: using a bicycle lock would almost certainly fit the definition, but what about glue? What about physically holding onto something and refusing to let go? Even if a case never makes it to court because it is too weak, this new offence gives police officers license to clear protests quickly by making potentially unsound arrests, relying on the offence’s vagueness.
Section 2 of the Bill also makes it an offence simply for ‘being equipped for locking on’.
This is perhaps a more challenging and alarming provision and it holds that someone commits an offence if they have in their possession ‘outside a dwelling’, i.e. in public, equipment that may be used for ‘locking on’. As pointed out by JUSTICE, an object could be as simple as having a bike lock in your bag. This is concerning, as unrelated and perfectly innocent public activities could land you with a fine and act as a strike towards the above-mentioned offences, possibly resulting in a prison sentence.
Other offences and powers
Also floated are provisions to further criminalise other kinds of disruptive protest, including “causing serious disruption by tunnelling” and “interference with key national infrastructure”. New powers will also be extended to the British Transport Police and the Ministry of Defence Police, enabling more government agencies to impose conditions on protests.
Conclusion
Protest rights are fundamental to a functioning and healthy democracy. The Public Order Bill would have the effect of undermining these rights, currently protected by Article 10 and Article 11 of ECHR. The annoyance or disruption caused by a protest cannot be said to be sufficient reason to, in effect, ban or prevent people from protesting. Noise and disruption often are often an essential and integral part of protest. Nor does annoyance and disruption justify an arbitrary power for the police to stop and search those near a protest.
Ultimately, the powers contained within the Bill represent a disproportionate interference with our civil liberties. They are most likely discriminatory, and they are possibly unworkable/unenforceable because less intrusive measures could be imposed, so it is difficult to envisage ‘where a court would therefore accept that it was proportionate to impose a banning order’.
Whilst the government may point to protests by groups such as Extinction Rebellion and Insulate Britain as a reason for needing new powers, these events do not necessitate the introduction of arbitrary policing of peaceful protest and an active discouragement and curtailment of our ability to protest at all. Significant positive change has been achieved using disruptive protests; it is worth considering what we may now be prevented from achieving as a result of the removal of these rights.
It is difficult to see how this Bill would not have a profound impact on our ability to express our views or grievances in public. This Bill is of grave concern, and we would encourage people to write to their MPs and members of the House of Lords to ask them to oppose it.
___
Photo credit: DPP Law, Flickr, 2019. GM Metropolitan Police car close-up.
