What just happened?

In the wake of the vigil for Sarah Everard on Clapham Common, on Tuesday the parliament voted on the Police, Crime, Sentencing and Courts Bill. Its contents have been widely criticised as “draconian”. The controversial bill will reform the law regarding political protests. Despite opposition on both sides of the House, the Bill passed by 359 votes to 263 on Tuesday night.1

What does this mean?

If enacted, the Bill will hand police new powers to control the length of protests, impose maximum noise levels and prosecute activists for causing a "serious annoyance" – a concept opponents argue has not been clearly defined. 2 This conjures images of protestors gathered in Parliament Square while a disgruntled Conservative MP in the Houses of parliament looks up from his papers, disturbed by the noise. It could be argued, however, that the Bill will do nothing to deter the most dedicated and tenacious of protestors since police have been arresting “disruptive” protestors such as Extinction Rebellion Activists for years now.

It is unknown whether the government’s intention to restrict the right to protest is a response to demonstrations by movements like Extinction Rebellion and Black Lives, or whether it anticipates future protests against the terms in the Brexit deal once its effects on trade and the economy make themselves fully felt in the UK. Either way, it is an extremely authoritarian response to threaten a vital aspect of a democratic society.

Other controversial measures include criminalising trespass and the indubitably excessive increase in the maximum penalty for criminal damage of less than £5,000 to a memorial from 3 months to 10 years' imprisonment,3 in comparison with a starting tariff of 5 years for rape.

In response, Labour Leader Sir Keir Starmer (who, before the shocking and heavy-handed police intervention at the Sarah Everard vigil originally had the intention for Labour MPs to abstain on the vote) pointed out in a speech that the Bill provided more protection for statutes (a clear reaction to nationwide dismantling of slave trader statues in public places in 2020) than for women.

What does this mean for the Law sector?

Several critics have called the Bill an affront to liberty,4 and the hashtag #killthebill has been trending strongly this past week. Although the Bill still has to pass in the Lords, what is particularly concerning is its assault on human rights and civil liberties, specifically Articles 10 (Right to Freedom of Expression) and Article 11 (Right to Freedom of Peaceful Assembly and Association) of the European Convention on Human Rights. Should the Bill become primary legislation, the UK Human Rights Act 1998 will provide little protection for those charged under it. Under section 4(2), a UK court may make a declaration of incompatibility of any primary legislation that contravenes a convention right, although that declaration won’t affect the validity, continuing operation or enforcement of the primary legislation (s 4(6)).5 Therefore, only time will tell how the courts will apply their option to declare incompatibility and how this will affect sentencing.

The efficacy of the Bill is also debatable since it will be up to the courts to interpret what constitutes a “serious annoyance”. However, it is absurd that in a supposed democratic state such as the UK in the developed first world, an activist exercising a basic human right to protest should rely on the discretion of a court to save them from becoming a convicted criminal.

By Hannah Phelvin

References

1 Tony Diver, 'The Police, Crime, Sentencing and Courts Bill explained: how will it change protests?' (The Telegraph, 18 March 2021).

2 Ibid

3 The Home Office, 'Policy paper: Police, Crime, Sentencing and Courts Bill 2021: criminal damage to memorials factsheet' <https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-criminal-damage-to-memorials-factsheet> accessed 19 March 2021

4 Alan Lockey, 'The policing bill is an affront to liberty. Labour is right to oppose it' (The Telegraph, 15 March 2021).

5 UK Government, legislation.uk.gov, <https://www.legislation.gov.uk/ukpga/1998/42/section/4> accessed 19 March 2021