The European Court of Human Rights has affirmed time and time again that the right to freedom of peaceful assembly, protected by Article 11 of the European Convention of Human Rights, is a fundamental right in a democratic society. It memorably stated in its 2018 judgment of Navalny v Russia that:

"Article 11 of the Convention protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote… Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it"

There can be no greater contrast in letter or spirit to the principles of freedom of association so powerfully articulated in Navalny than the Police, Crime, Sentencing and Courts Bill (PCSC) which at the time of writing is making its way through Parliament. It is precisely protestors causing ‘annoyance’ and ‘serious unease’ that the bill seeks to criminalise. Human rights practitioners and organisations both domestically and internationally have condemned the bill as a brazen attack on the right to protest, giving the police unprecedented powers to crack down on anything they deem a ‘disruptive’ protest.

The clauses of the PCSC Bill that relate to protests updates the Public Order Act 1986. Of particular concern are clauses 54 and 55 of the Bill (which you can see here https://publications.parliament.uk/pa/bills/cbill/58-01/0268/200268.pdf ).

These amend sections 12 and 14 of the Public Order Act 1986 (which was enacted after the widespread miners’ strikes in order to inhibit protest and assembly by Margaret Thatcher’s government), and which relate respectively to public processions and public assemblies. Both of these clauses give the police a sweeping range of powers to impose conditions on public assemblies and processions and are open ended as to what those conditions could be. The wording of clause 54, for example, which amends the law as it relates to public processions, state that police can impose conditions on that demonstration if they are satisfied that

"The noise generated by persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the procession” or “if the noise generated by persons taking part in the procession may have a relevant impact on persons in the vicinity of the procession, and that impact may be significant"

If enacted police will now be allowed to intervene and order dispersal of a demonstration if they are satisfied that there is a level of noise that is causing "serious disruption to the activities of an organisation which are carried on in the vicinity of the procession".

As observed by the European Court in Galstyan v Armenia (2007) "The Court, however, finds it hard to imagine a huge political demonstration, at which people express their opinion, not generating a certain amount of noise."

The noise provisions allow officers to intervene if the protest has ‘relevant impact’ on ‘persons in vicinity’ which has been defined as causing “intimidation or harassment of persons of reasonable firmness…” or if such persons “suffer serious unease, alarm or distress”. This would mean that if a member of the public complains that the chants by a demonstration personally offended them, it would allow the police to intervene.

Once the above is ‘triggered’, the bill provides for a blanket power for a senior officer to impose any conditions they consider necessary to prevent “disorder, damage, disruption, impact or intimidation”. The Good Law Project has stated "When read in this context, the inclusion of the word “impact” in this and other parts of the Bill is absolutely remarkable: the very object of exercising the right to protest is to have impact. Treating impact as a wrong to be conditioned exposes the breadth of the Government’s ambition to meaningfully remove the right to protest. In addition to conditions on where and when protests can take place, the conditions placed could include imposing maximum noise limits and even a ban on a specific protest."

The proposed sentence for breaching conditions of a protest is to be increased from 3 months to 51 weeks.

Much media coverage is rightly focussed on Clause 59 which replaces the common law offence of public nuisance with a new statutory offence, which is now subject to a maximum custodial sentence of ten years. This means that a person implicated in causing criminal damage to a statue in a protest would face a tougher sentence than a person convicted of a serious crime.

The current government has made no secret of its distaste and horror at Extinction Rebellion and Black Lives Matter protests and the aim of these clauses is clear: it is precisely the ‘disruptive’ nature of these protests which made them effective – the Extinction Rebellion protests compelled Parliament to declare a ‘climate emergency’ and forced the government to sign the UK’s net-zero target into law. This proposed legislation effectively criminalises these movements and would prevent them from happening again.

GT Stewart has an expertise in defending those accused of breaching protest law, and is currently for persons charged for participation in the 2020 Black Live Matters protests.

Article by Bhaskar Banerjee