In recent weeks, the legality of political protest has been constantly in the news. Hundreds of thousands of people have watched as the police have treated all protests as illegal – irrespective of the cause, and whether the demonstrators were masked and socially distanced or not. People have been shocked by that sight and, still more, by the government’s plans to extend as much of the ban on protest as they can into the future. Barrister David Renton explores why the government is so determined to suppress protest, the Police Bill, and the impact of the Covid regulations on protest rights.
I want to begin by explaining why the government, far ahead as it is in the opinion polls, and with an opposition doing everything in its power to support it, has nonetheless determined to confront all forms of protest. And then I want to discuss events in Bristol a few weeks ago, what is happening with the Police Bill, and what will happen to protest rights under the evolving Covid rules.
Ministers extending their power
The first thing to grasp is that whether it comes about through the long-term influence of Trump or the Conservatives longstanding pre-Covid fascination with an idea of emergency states requiring emergency rule (‘no deal Brexit’), the Conservatives have long been flirting with a vision of government which in certain respects is unlike what mainstream opinion used to mean by democracy. By this I mean a refusal to tolerate alternative blocks of opinion in the public sector (in the BBC, universities and quangos such as the Equality and Human Rights Commission – EHRC), and more importantly, a hostility to parliament as the key institution of democracy in favour of executive rule.
The lurch towards ministerial power predates Johnson (it was the issue in the first ‘Gina Miller’ case about whether Parliament or ministers could implement article 50). But it sped up with his appointment as leader of the Conservatives. Think of the first three months of Johnson’s government – his eleven defeats in Parliament, his inability to call an election, and the second Gina Miller case which was, again, about who should rule in a democracy, the elected Parliament or ministers relying on what they claimed was ‘royal prerogative’. Think how weak Johnson seemed, and how determined he has been never to fail like that again.
For a year, Keir Starmer’s hapless Labour Party has failed to make any impact in the absence of parliamentary checks and balances, with the unsurprising result that his party has disappeared from the news. This is how opposition works – you oppose. Labour has seemed irrelevant, been irrelevant, and collapsed in the polls.
The hopelessness of the opposition has encouraged the government to feel that there is no risk in demanding more draconian powers than even Thatcher dreamed of.
Over the last year, we have seen ministers make political appointments at the head of the BBC, to quangos such as the EHRC, and threaten university lecturers with the appointment of a free speech Tsar, whose remit (plainly) will be anything but the tolerance of dissenting speech. These measures have opened up a cavernous gap between how young city-dwellers see Britain, and how the country is presented by ministers, in the press and on television.
The more that soft power lines up behind a single dominant party, and the more that opposition parties behave as if they were in some unspoken national alliance with the government, the greater the threat posed to the rulers by even relatively small protests. It starts to feel as if every individual demonstration is a challenge to an entire regime. In this context – with ministers aware of the anger hidden beneath apparent poll leads – we can understand why the government is determined to curb protest, and why they are keeping on with a Bill even when it is unpopular with so many people.
The protest ban
The events in Bristol were merely the latest in what is a growing number of protests to have suffered from arbitrary policing. In Belfast, last summer, a loyalist assembly to ‘protect monuments’ was protected by the police. In Derry, at the same time, Black Lives Matter protesters were harassed and fined. Even the Northern Irish Police Ombudsman protested at this ‘unfair’ and ‘differential treatment’. In Brighton, in February this year, a protest in favour of the domestic abuse support charity Rise led to police officers threatening the organiser, and threatening to fine her. Before the Sarah Everard vigil, there was also the nurse Karen Reissmann, who was issued with a fixed penalty notice after organising a protest against government plans to pay nurses a pay rise of just 1%.
The regulations for the recent lockdown were intended to make all protests illegal, by definition. It is this which explains the determination with which police officers waded into protesters in Bristol. The only surprise was that demonstrators fought back.
How lockdown worked from January to March 2021 was that, in effect, the whole country was put in ‘tier 4’ and the tier 4 rules were tightened at the same time. The rules of for tiers 1, 2 and 3 prevented people from gathering outside in groups of 6 or more but they made an express exception for protests under certain conditions. The rules for tier 4 didn’t have that exception. The intention was that all political protests were banned – whoever did them, and under whatever form, for the time being.
This ban was almost certainly ‘unlawful’, because it was absolute. No protests were permitted under any circumstances at all. The European Convention on Human Rights protects people’s right of freedom of assembly, as does the UK common law and while this is a relatively weak protection, it kicks in exactly at the moment when all protest is banned.
We know that the Metropolitan Police has had advice from its own lawyers who have told it that any complete ban on protests would be unlawful. This is general knowledge because the one time it looked like this issue was going to be argued in court – when Reclaim These Streets demanded a declaration from the High Court that their protest could go ahead – the Met acknowledged that a complete ban on all protests would breach the law.
In the new regulations, which came into effect on 29 March, protest is permitted once more, but subject to ‘required precautions’, i.e. an organiser needs to carry out a risk assessment and implement precautions such as social distancing. Those rules are likely to last until June.
The Police Bill
The new Police, Crime, Sentencing and Courts Bill is intended to provide protest laws for the years to come. It is intended to transform the relationship between the police and protesters, enabling most public protests to proceed only if they have the permission of the police. How this is to be achieved is by transforming section 14 of the Public Order Act 1986 which allows police officers to impose conditions on protests – typically, a ban on protesting in a certain area if the intended demonstration was one of a vanishingly small group of exceptional protests which will likely to result in ‘serious public disorder, serious damage to property or serious disruption to the life of the community’.
That test will now be significantly altered. Protests can be banned or otherwise limited in a range of circumstances including if a senior police officer believes that the protest would cause a serious disruption to the activities of an organisation, or the noise would have a relevant impact on people in the vicinity.
Consistently, with the recent proliferation of law made by ministers, the Bill proposes to give the Home Secretary the chance, through Regulations, to define such concepts as serious disruption – in other words, to further broaden without democratic scrutiny the attack on protest rights.
In all these ways, the Bill would, if passed, make if lawful for the police to ban any of the following demonstrations: a picket-line by trade unionists having as its purpose the stopping of non-union members going into work, and likely to be attended by workers with megaphones, vuvuzelas, etc.; any demonstration by green campaigners having as its target the offices of a company criticised for polluting the environment, or for contributing to global warming; an anti-war march if it was likely that among the ranks of those protesting there would be a samba band, or anyone with any sort of electric sound system.
The Bill will create a new statutory offence of Public Nuisance carrying a maximum sentence of 10 years for anyone who intentionally or recklessly causes serious harm to the public or puts them at risk of such harm. The proposed definition of ‘serious harm’ includes where a person suffers ‘serious annoyance, serious inconvenience or serious loss of amenity’. The intention behind this reform is to multiply the potential jail term for protesters such as the Stansted 15, who blocked a deportation flight from that airport.
Clause 60 of the Bill also contained a proposed new criminal offence, directed at Gypsy, Roma and Traveller people, of ’residing on land without consent in or with a vehicle’. This was intended to criminalise communities in the familiar scenario where Travellers have purchased land and have a right to live there, but do not have planning permission to set up encampments. Among the powers given to the state by the proposed legislation is a right for chief police officers to seize Travellers’ property, including cars and homes.
The campaign group Sisters Uncut celebrated a victory after the government deferred its initial plans to take the Bill to committee and to seek to have it passed in double-quick time. Though the halting of the Bill is good news for now, it is still there. The government has not withdrawn any of the contentious parts indicated above. Rather, it has chosen to approach the question of getting it through Parliament tactically, waiting until the furore over the Sarah Everard case has died down.
While the Covid Regulations took the form of secondary legislation, the Police, Crime, Sentencing and Courts Bill is primary legislation – i.e. it must pass through Parliament. Protests have already had the effect of forcing Keir Starmer’s Labour Party into its first significant stance of actual opposition since Covid began. The more that protests continue, the greater the chance of individual Conservatives dissenting from the Bill, or speaking against its individual clauses in committee. Although the Conservatives have a large majority, the votes may yet narrow, if it feels like opposition is sufficiently popular and determined.
Protesters face a simple choice. We have watched in previous decades as legislation has gutted protest rights including the ability to picket effectively and the right to take part in solidarity or unofficial strike action. Laws, determinedly applied, can destroy whole classes of lawful public protest in which hundreds or thousands of people once regularly participated. It follows that if you want to be able to march in future, free from police harassment, then now is the moment to add your voice to those protesting.
David Renton’s next book, Jobs and Homes: Stories of the Law in the Lockdown, is published by Legal Action on 19 April.