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

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1Introduction

1.The Police, Crime, Sentencing and Courts Bill (‘PCSC Bill’) was introduced in the House of Commons on 9 March 2021. We have identified it as a priority Bill for legislative scrutiny. This report concerns Part 3 of the Bill only, which is entitled ‘Public Order’. The proposed changes in Part 3 of the Bill will apply only in England and Wales (the law in Scotland would remain as it is now). We will address other aspects of the Bill separately.

2.Part 3 of the PCSC Bill has four principal effects:

a)It introduces a new basis upon which the police can lawfully impose conditions on public processions and assemblies and, for the first time, on one-person protests;

b)It amends existing offences of failing to comply with conditions imposed by the police, making it easier to convict someone of the offences and increasing the maximum penalties available;

c)It expands the controlled area around Parliament and provides a new power to the police to prevent the obstruction of vehicular access to the Parliamentary Estate; and

d)It creates a statutory offence of public nuisance to replace the existing common law offence.

Human rights in issue

3.The provisions of Part 3 of the PCSC Bill all engage the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) and the right to freedom of assembly under Article 11 ECHR, as guaranteed through the Human Rights Act 1998. These rights together provide an enforceable right to engage in peaceful protest. The potential for Part 3 of the PCSC Bill to have a discriminatory impact, in breach of Article 14 ECHR has also been raised in evidence to our inquiry.

4.Given the Committee’s serious concerns about the implications of Part 3 of the PCSC Bill for these fundamental rights, the Annex contains proposed amendments to the Bill.

Timetable

5.This report is timed to inform the Report stage of the PCSC Bill in the House of Commons.

6.The Committee launched an inquiry into the Bill on 15 March 2021, which coincided with the first of two days of second reading debate in the Commons. We received a large volume of responses many of which focused on Part 3 of the Bill, and heard from two panels of witnesses on the public order provisions. We are grateful to all those who have given evidence.

7.We wrote to the Home Office Minister, Victoria Atkins, on 19 May 2021 with a series of questions on the Bill.1 A response from the Minister was provided on 8 June and published on our website.2

8.Some of our recent work raises similar issues to those arising from Part 3 of the PCSC Bill. We recently reported on the right to protest during the covid-19 pandemic in The Government response to covid-19: freedom of assembly and the right to protest.3 We also reported on the over-policing of black people in our 2020 report on Black people, racism and human rights.4 In the 2017–2019 Parliament, the Committee considered access to Parliament in the Democracy, freedom of expression and freedom of association: Threats to MPs report.5

Government’s policy position

9.The Explanatory Notes to the PCSC Bill make it clear that the powers introduced in Part 3 of the Bill are intended to deal with non-violent protest:

“Police powers to tackle non-violent protests

66. Current legislation to manage protests provides predominantly for powers to counter behaviours at protests which are violent or distressing to the public […]

67. Recent changes in the tactics employed by certain protesters, for example gluing themselves to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings such as the Palace of Westminster and newspaper printing works, have highlighted some gaps in current legislation.”6

10.The Explanatory Notes also assert that Part 3 “gives effect to recommendations made by the Law Commission in their July 2015 Report on “Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency”, that the common law offence of public nuisance should be replaced by a statutory offence covering any conduct which endangers the life, health, property or comfort of a section of the public or obstructs them in the exercise of their rights.”7

11.The ‘protest powers factsheet’ published with the Bill explains that the Government “asked Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) to consider five legislative proposals.8 These were to:

• widen the range of conditions that the police can impose on assemblies (static protests), to match existing police powers to impose conditions on processions;
• lower the fault element for offences relating to the breaching of conditions placed on [an assembly or procession];
• widen the range of circumstances in which the police can impose conditions on protests…;
• replace the existing common law offence of public nuisance with a new statutory offence as recommended by the Law Commission in 2015; and
• create new stop, search and seizure powers to prevent serious disruption caused by protests.”

12.The factsheet goes on to say that the resulting report by HMICFRS “concluded that, with some qualifications, all five proposals would improve police effectiveness without eroding the right to protest”.9 The first four of these proposals are reflected in Part 3 of the PCSC Bill.

13.In respect of the provisions of Part 3 that concern access to Parliament, the Explanatory Notes state that the new measures “follow[s] the recommendation of the Joint Committee on Human Rights in their October 2019 Report Democracy, freedom of expression and freedom of association: Threats to MPs […] for further legislation to protect the right of access to the Parliamentary estate for those with business there.”10

The right to peaceful protest

14.As the Home Secretary described it in 2020, the right to peaceful protest is “a cornerstone of our democracy.”11 Despite its importance, the right was not protected in legislation until the Human Rights Act 1998 (the HRA) brought the rights guaranteed by the ECHR into domestic law. Even within the ECHR, the right to protest is not set out in terms but rather drawn from the rights to free expression (Article 10 ECHR) and free assembly and association (Article 11 ECHR).12

15.Together, Articles 10 and 11 ECHR provide a positive right for any individual to organise and engage in public protest with others.

a)Article 10 ECHR protects the expression of opinions in the form of protest, covering “not only the substance of the ideas and information expressed, but also the form in which they are conveyed”.13 The right to free expression extends not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that “offend, shock or disturb the State or any sector of the population”.14 The European Court of Human Rights has placed particular emphasis on the importance of political free expression: “in a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression.”15

b)The Article 11 right to freedom of peaceful assembly extends to gathering together for a common purpose in private or in public, and being able to choose the time, place and form of the gathering, within the limits established by Article 11(2). In keeping with the protections of Article 10, Article 11 protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote.16 However, Article 11 protects only the right to peaceful assembly. Violent protests and those organised with violent intentions will not receive the protection of Article 11.17 An individual who remains peaceful will not lose the protection of the Convention merely because other participants in a demonstration engage in sporadic violence, however.18

16.The rights to free expression and assembly under Articles 10 and 11 ECHR require States to refrain from applying unjustified restrictions on the right to protest (the negative obligation), and also to safeguard the right to protest (the positive obligation). This positive obligation includes a duty to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, with participants kept safe.19 It is often referred to as the duty to ‘facilitate peaceful protest’.20

Lawful interferences with the right to protest

17.As the rights guaranteed by both Articles 10 and 11 are qualified, the right to protest is not absolute. Article 10(2) and Article 11(2) establish that authorities may interfere with the right to protest for any of an exhaustive list of legitimate purposes. However, any interference with Article 10 or 11 will only be justified where it is properly prescribed by law, where there is a pressing social need for the interference and where the interference is proportionate to the aim of the measure.

18.The European Court of Human Rights has recognised that public demonstrations “may cause some disruption to ordinary life” but that “it is important 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 its substance.”21

The Human Rights Act 1998

19.The HRA brings these obligations into domestic law. Section 6 HRA requires all public authorities in the UK to act compatibly with Convention rights, including Articles 10 and 11 ECHR. For the purposes of public protest the key public authorities are the police and the Government, particularly the Home Office. Section 7 HRA grants anyone who is a victim of a human rights breach the right to bring a legal challenge against the public authority responsible. This might be a High Court judicial review challenge, in which the available remedies would include an urgent order from the court quashing the offending decision of the public authority, or an action for damages (financial compensation) which can be brought in the county court.