Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order) Contents

Summary

Everyone has a right to engage in peaceful protest. The Human Rights Act 1998 incorporates the European Convention on Human Rights and in doing so guarantees our rights to freedom of expression (Article 10) and freedom of assembly (Article 11). The right to protest is not unlimited; it can be restricted where necessary and proportionate. The law currently provides the police with powers to deal with public assemblies and processions that descend into violence, but also contains some restrictions on non-violent demonstrations. Part 3 of the Government’s Police, Crime, Sentencing and Courts Bill, which is currently before Parliament, would increase those restrictions on non-violent protest in a way that we believe is inconsistent with our rights. The proposed changes to the law will apply only in England and Wales (the law in Scotland would remain as it is now). This report sets out our concerns. The annex sets out amendments to Part 3 of the Bill which we believe are needed.

Making noise and being heard are fundamental to protest. They should only be limited in extreme circumstances. The police already have many powers to deal with noise which is seriously harmful or oppressive. Protests and processions can already be subject to conditions in order to fall within the law. The Bill introduces a new “trigger” for the police to impose restrictive conditions on public assemblies and processions based on the noise they produce. This new trigger is neither necessary nor proportionate, and should be removed from the Bill.

The new trigger, and one existing trigger, for the introduction of restrictions is concerned with protests causing “serious disruption”. The Bill contains a regulation making power for the Secretary of State to clarify the meaning of serious disruption to organisations and the community by statutory instrument. This is unacceptable. The terms should be clearly defined in primary legislation where they can be effectively scrutinised and if necessary amended by Parliament. If the proposed content of the regulations is known, then they should be available for scrutiny along with the Bill. If it is not, it is hard to see how the power to create them can be necessary.

The Bill would remove all limits on the types of conditions that can be placed on public assemblies where necessary, to match the approach taken to processions. Whilst we have some sympathy for this proposal, we are not convinced that the case for unlimited conditions on assemblies has been made. We can see the sense, however, in a modest extension of existing powers to allow for conditions on start and finish times. We were also struck by the lack of systematic collection of data on the use of restrictions and conditions on protests. We recommend improved data collection and publication by the police.

Knowingly failing to comply with conditions imposed by the police on public protests is a criminal offence. The Bill intends to close a loophole in the offence that allows protesters to avoid prosecution by deliberately avoiding gaining knowledge of conditions. However, we believe the changes proposed in the Bill go much further than is necessary to close this loophole, increasing the risk of peaceful protesters being arrested or prosecuted for innocent mistakes. We recommend an amendment that would narrow the changes to avoid this risk.

The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance”. Peaceful protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating. Offences are already available under existing laws to deal with public nuisance offences such as obstructing the highway. The current drafting risks the new statutory offence being broader than the common law offence it replaces. Moreover, the offence does not include references to the right to freedom of expression or freedom of assembly in its definition of ‘reasonable excuse’. As such, the Bill requires further amendment.

The Joint Committee on Human Rights has previously reported on protests around Parliament. We welcome the Government’s commitment to ensuring access to the Parliamentary estate for those that have business there but reiterate our previous recommendation that powers to restrict protest around Parliament should only be used when necessary.

The current rhetoric around protest tends to downplay the importance of the right to peaceful protest and treat it as an inconvenience in conflict with the public interest. To help address this, we propose the introduction of express statutory protection for the right to protest, setting out the obligation on public authorities to refrain from interfering unlawfully with the right but also the duty to facilitate protest.




Published: 22 June 2021 Site information    Accessibility statement