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

Conclusions and recommendations

Conditions on public processions and assemblies to address noise

1. The ECHR is intended to provide rights that are “practical and effective” not “theoretical and illusory”. A right to peaceful protest would not appear to us to fulfil this requirement if the peaceful protest cannot be seen and, crucially in this context, heard. A power that would allow the police to move the location of a demonstration, limit its numbers or duration, or even to silence certain shouts or chants, in order to suppress noise is therefore of significant concern. (Paragraph 36)

2. Using multiple terms that are open to wide interpretation, such as “intensity” and “serious unease”, leaves an excessive degree of judgment in the hands of a police officer. This is likely to prove challenging to the police, who already have significant responsibility for ensuring that demonstrations are lawful and safe. It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers. (Paragraph 50)

3. The proposed new trigger for imposing conditions on public processions and assemblies represents a restriction on the right to protest that is not necessary in a democratic society. Such a trigger would not address the forms of protest that have been identified by the Government as problematic. Neither the police nor HMCIFRS called for a new trigger based on the noise generated by demonstrations. In addition, the law already provides a range of powers to deal with noise that impacts on the rights and freedoms of others to such an extent that interference with Article 10 and 11 rights would be justified. The new trigger for imposing conditions on processions and assemblies based on the noise they generate should be removed from the Bill. (Paragraph 62)

4. While a single person will not be exercising their right of free assembly when protesting, they will still receive protection for their freedom of speech under Article 10 ECHR. All of the concerns set out above in respect of the proportionality of imposing conditions on processions and assemblies based on noise apply equally to this unprecedented power to impose conditions on one-person protests—with the addition that a single protester has less ability to produce seriously disruptive noise than a large assembly or procession. Clause 60 should also be removed from the Bill. (Paragraph 64)

Other changes to the law governing processions and assemblies

5. We respect the police call for the types of conditions that can be imposed on assemblies to be expanded. However, the power to limit the numbers, duration and location of a public assembly already allow very significant controls to be placed on ongoing and prospective assemblies, and the longstanding distinction between processions and assemblies recognises the greater potential of moving demonstrations to cause serious disruption and the need to control their routes. Completely removing the limits on the conditions that can be imposed on assemblies, particularly when coupled with the proposed new trigger based on noise, would increase the risk of peaceful assemblies being unnecessarily restricted in breach of Articles 10 and 11 ECHR. Nevertheless, we can see that the ability to control an assembly’s start and finish times, where a trigger is satisfied, would be a reasonable and proportionate addition to police powers. The Bill should be amended to limit the changes to the conditions that may be placed on public assemblies to the addition of a condition as to the start and finish times of an assembly. (Paragraph 72)

6. Any clarification of the meaning of ‘serious disruption’ will impact on the use of police powers to restrict the exercise of rights under Articles 10 and 11 ECHR and requires careful scrutiny. At this stage the content of the proposed regulations is unknown, which leaves us unable to assess their likely impact on the right to peaceful protest. If there is a particular clarification of ‘serious disruption’ that the Home Office considers is currently needed, perhaps as a result of the Extinction Rebellion protests of 2019, it should be made clear now so that it can be considered while the Bill is being scrutinised. If no need for particular clarification has yet been identified, then we struggle to see how the powers contained in the PCSC Bill can be considered necessary. (Paragraph 80)

7. The Government should provide clarification of these terms on the face of the Bill. If they are not prepared to do that, at the very least the Government should publish the regulations they propose to make under this section promptly to allow Parliament, and in particular the Joint Committee on Human Rights, to consider them before scrutiny of the PCSC Bill has concluded. (Paragraph 81)

8. We accept that there is a potential loophole in the offence of failing to comply with a condition lawfully imposed by the police. However, we are concerned that the PCSC Bill would amend this offence in a manner that would go much further than is necessary to close this loophole, amounting to a disproportionate interference with the right to peaceful protest. Clause 56 must be amended to ensure that while the loophole identified is closed the offence cannot sweep up innocent participants in peaceful protests. (Paragraph 86)

9. Criminal sanctions for peaceful protest require compelling justification. We do not believe that the need for increased penalties for failing to comply with conditions imposed by the police has been made out. There is a real risk that more substantial penalties would have the effect of dissuading people from exercising their right to engage in peaceful protest. The clauses that increase penalties for breaching conditions placed on protests should be removed from the Bill. (Paragraph 91)

10. The lack of collection and publication of data on conditions makes it harder to assess the efficacy of existing laws and the need for new ones like those contained in the PCSC Bill. The collection and publication of data on conditions in one central database would assist local police forces, the NPCC and protest organisers. Local police forces could use this data to inform their own decision-making processes, and any useful lessons could be reflected in the NPCC Public Order Authorised Professional Guidance. It would also improve police accountability to the public and help protest organisers understand the nature of conditions that are imposed. The NPCC and local police forces should work together to ensure the routine recording, collection, and publication of data on conditions imposed at protests. Any data must be easily accessible to the public. (Paragraph 93)

Statutory public nuisance offence

11. We have serious concerns about the new offence being included in Part 3 of the PCSC Bill, especially given the broad drafting which would catch non-violent protest. Protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating in peaceful protest. Under the current law there are a plethora of offences already available to the police, such as obstructing the highway. As a matter of practice, where a more specific offence is available the police should charge that offence unless there is a strong justification for not doing so. (Paragraph 106)

12. The essence of the public nuisance offence is causing harm to the public or a section of the public. However, as drafted, the offence is confusing and could be read as meaning the offence is committed where serious harm is caused to one person rather than the public or a section of the public. This does not achieve clarity for either the police or protesters. The current drafting also risks the offence being broader than the common law offence it replaces. The Bill must be amended to make clear that the offence of public nuisance will only be committed where serious harm is caused to the public or a section of the public. (Paragraph 111)

13. The reasonable excuse defence in the statutory public nuisance offence is not clear enough for police and protesters. As the Law Commission report noted, the defence should apply where an individual is exercising their Convention rights. The Government must amend the reasonable excuse defence to public nuisance to include an express reference to Articles 10 and 11 in the defence. This would provide clarity for the courts and make clear to the police that they must give significant weight to the right to protest when deciding whether to charge the offence. This is especially important where the offence is being considered in the context of non-violent protest. (Paragraph 114)

14. We welcome the Government’s commitment to ensuring access to the Parliamentary estate for those who have business there. However, it is important that protesters can protest outside democratic institutions and have their voices heard. The police should use the new powers sparingly and only when necessary to ensure access to the Parliamentary estate. (Paragraph 120)

15.The right to protest is a fundamental right in a healthy democratic society. Public authorities, including the police, are under a negative obligation not to interfere with the right to protest unlawfully and a positive obligation to facilitate peaceful protest. Therefore, it is concerning that current rhetoric focuses on the inconvenience sometimes caused by protest rather than its value to society. This must be addressed. The Police, Crime, Sentencing and Courts Bill should introduce statutory protection for the right to protest, setting out both the negative and positive obligations of the State in relation to protest. (Paragraph 128)

Published: 22 June 2021 Site information    Accessibility statement