EXPLAINER: What does the new policing bill say about restricting protests?

13 April 2021 — NetPol

Protester arrested during Extinction Rebellion protests in London, October 2019PHOTO: Splento

Since the confrontational crackdown by the Metropolitan Police on women holding a vigil for Sarah Everard at Clapham Common on 13 March, a growing movement has condemned police intolerance to the right to protest and warned this will only become worse with the passing of the government’s 307 page Police, Crime, Sentencing and Courts Bill.

So what exactly does the bill propose?

Police, Crime, Sentencing and Courts Bill

The Police, Crime, Sentencing and Courts Bill is effectively four separate bills rolled into one mammoth piece of proposed new legislation. The four parts are:

  1. Protection of the Police
  2. Prevention, Investigation And Prosecution Of Crime
  3. Public order
  4. Unauthorised Encampments

Every part of the bill raises serious concerns and there are detailed explanations of these in relation to part 2 (by the Institute for Race Relations) and part 4 (by Friends, Families and Travellers).

Much of Netpol’s work has been in support of social and political movements taking part in protests, so these are our concerns in part 3 of the bill about proposed changes on public order.

Why make changes to public order legislation?

Metropolitan Police Commissioner, Cressida Dick has said new police powers are necessary “specifically to deal with protests where people are not primarily violent or seriously disorderly” but are intended to “bring policing to its knees and the city to a halt”. This clearly refers to Extinction Rebellion’s two-week-long actions in 2019, but may also mean repeated protests in support of the Black Lives Matter movement in 2020.

The government’s factsheet on the bill says “the highly disruptive tactics used by some protesters cause a disproportionate impact on the surrounding communities and are a drain on public funds.”

What are the proposed changes?

Imposing conditions on protests

Part 3 of the bill proposes strengthening the police’s ability to impose conditions where there is a risk that noise will cause serious disruption. This includes noise generated by a procession that “may have a relevant impact on persons in the vicinity of the procession if… it may cause … persons to suffer serious unease, alarm or distress”.

The bill also introduces new offences for one person protests for breaching conditions based on noise and impact.

The bill proposing giving the Home Secretary powers to make regulations without reference to Parliament and give examples of the type of protest deemed acceptable by the state, in order to “define any aspect” of the meaning of

  • serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession, or
  • serious disruption to the life of the community.

Currently, there are different powers to deal with a march and a static assembly. The new law would allow senior police officers to give directions imposing conditions on those organising or taking part in either a procession or assembly that the police decide are necessary to prevent “disorder, damage, disruption, impact or intimidation”.

Who will these proposals affect?

What this creates is a situation where far more protests, far more often, are likely to face the prospect of having conditions imposed on them.

We know from experience that the police are already quick to impose restrictions and conditions on protests, which is why any organisation that is likely to make its voice heard noisily should feel alarmed by the bill’s public order proposals.

Furthermore, any trade union picket line or protest calling for an ethical boycott of a business that successfully persuades people from entering a company’s premises may find its owners starting to ask the police to shut down pickets or protests.

The same is true of repressive governments insisting the police act to prevent “disruption” by embassy protests.

Every effective environmental protest over the last two decades, from local opposition to fracking sites, open cast coal mining or airport expansion, has caused disruption to corporate interests. The bill will give the police far greater powers to impose restrictions on this kind of political movement in the future.

Breaching conditions imposed on a protest

Currently the Public Order Act says a protester may face arrest if they “knowingly fail to comply with a condition”. The bill intended to change this so it is an offence if “a person who knows or ought to know that the condition has been imposed”. The government factsheet for the bill says:

This measure will close a loophole which some protesters exploit. Some will cover their ears and tear up written conditions handed to them by the police so that they are likely to evade conviction for breaching conditions on a protest as the prosecution have to prove that the person “knowingly fails to comply with a condition imposed”.

This would mean, for example, that the MP Caroline Lucas, who was found not guilty of this offence under the existing law at a Balcombe anti-fracking protest in 2013, because she was “distracted by the arrest of her son and the obvious pain being caused to him during his arrest,” might now face conviction if this change succeeds, on the basis she should have known

The bill also extended the “controlled area” around Parliament where particular laws apply and adds a new offence of “obstructing, by the use of any item or otherwise, the passage of a vehicle of any description into or out of an entrance into or exit from the Palace of Westminster controlled area”. This seems in particular aimed at locking the road around Parliament Square and up as far as the Cenotaph.

Intentionally or recklessly causing public nuisance

The bill abolishes the current common law offence of public nuisance and creates a new statutory offence of causing “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.

Public nuisance has been ripe for reform for many years but in the context of the right to protest, it is not clear what any of these terms will mean and serious loss of amenity does seem to indicate that protests outside a company that result in it losing business are more likely to tempt the police into greater use of public nuisance charges.

Previously, charges for public nuisance during protests have been relatively rare. Anti-fracking campaigners jailed in 2018 for this offence were the first to face imprisonment since 1932. A new statutory offence would result in a maximum sentence if tried in a Magistrates Court of 12 months in prison and a fine (or both) and for more serious cases tried in a Crown Court, of up to 10 years in prison.

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