Today You Will Begin To Lose The Right To Protest . . .
And also: oppose the Police, Crimes, Courts and Sentencing Bill after the Clapham Common police violence? Unfortunately, it’s not quite that simple, and Labour will find that out over the next few days.
Losing the right to protest . . . and what that means in terms of your human rights.
Yesterday was the day that the Police Bill started going through parliament. Touted by Patel as “supporting the police” it actually functions to remove your right of free assembly, your right of free association and your right of free speech under the Universal Declaration of Human Rights signed in this country in 1948, and later adapted to the European Convention of Human Rights, to which this country is a signatory.
Not only are your rights thus summarily abrogated, they can be changed at the whim of the Home Secretary – whoever they are – without parliamentary scrutiny.
If you’re not worried yet, you should be. Not only because your rights are being removed and Parliament will collude in their removal – especially if Labour abstains on or opposes the Bill, which latter it has now said that it will do – but because, firstly, a breach of the European Convention of Human Rights is grounds for the EU withdrawing without notice from the Trade and Cooperation Agreement – which they have not yet ratified – and secondly, the Trade and Cooperation Agreement makes existing domestic law subject to its terms, one of which, enshrined in Schedule 5, Paragraph 14, Subsection 8, determines that should a minister of the crown decree that there is “urgency” in enacting any piece of legislation relating to the EU and our relationships with it, then that piece of legislation can be enacted – you guessed it – without Parliamentary scrutiny.
What Sections 3 and 4 of this Bill, on the right to protest, mean for you.
Arguably this is where we stop calling this “the Johnson government” and start calling it “the Johnson regime” – because that is the definition of a “regime”: a country where democracy, freedoms and human rights are either in danger or do not even exist. Although at times its use appears natural, when referring to unquestionable dictatorships (Orban, Bolsonaro) in the majority of cases the line is thin, and countries with identical shady areas when it comes to democracy and rights are called ‘government’ or ‘regime’ depending upon the estimation and the interests of whoever names them. The slide from one into another – to what is definitely a government to what is definitely a regime – is what we are experiencing now.
Before we look at the minutiae of what is being taken away in this Bill, let’s look at the markers on the road to fascism, just so we know where we are.
- Powerful and continuing nationalism: Look at the obsession with the word “British,” the word “sovereignty,” the flag waving, the appeal to “British values” (hmm, what would they be then? Currently, I’d go for illiberality, imperialism, insularity and inflexibility) and an obsession with a past which refuses any rational discussion. (Ten years for meddling with a statue of Churchill, the man quoted as blaming the 1943 famine on the fact Indians were “breeding like rabbits”, and asking how, if the shortages were so bad, Mahatma Gandhi was still alive. Two years for a drink-drive killing?)
2. Disdain for human rights: Witness the Police Bill just about to go through Parliament: – in some respects: but see below. It’s complicated.
3. Identification of enemies as a unifying cause: well, there’s migrants, refugees and the EU. That’ll do for starters. (There’s also anyone with a different colour skin of course. Endemically. Systematically.)
4. Rampant sexism: I call as witness the shocking scenes on Clapham Common last night where women peacefully mourning the death of a woman allegedly at the hands of a police officer in the Metropolitan Police were violently manhandled by Metropolitan police officers in sharp distinction to the way those same officers policed protests and marches last year. This was specifically woman-directed aggression
5. Controlled mass media: Oh, BBC, oh BBC, how low have you stooped, controlled by right wing cronies of this right wing government. Also, Murdoch.
6. Obsession with national security: Twelve wretched people in a dinghy and you’d think that the Armada was sailing up the channel. Ridiculous. And Space Force? (Cue theme from Star Wars. Boys playing with toys.)
7. Religion and government intertwined: We are an apathetic nation, in terms of the established religion: Anglicanism has always been mute and meek. But Brexit is the new religion, cult like, obsessive, fanatical and irrational.
8. Corporate power protected: It’s a Tory government. Of course it protects corporates. Also, hedge funds, and shorting the pound. Who earned themselves what during the tortuous process of Brexit?
9. Labour power suppressed: 1% for nurses, nothing for millions, and the Police Bill will criminalise our right to protest against that. And against any other injustice.
10. Disdain for intellectuals and the arts: The arts as a whole were abandoned at the start of the Covid pandemic. As for “intellectuals” the mass media continually mentions “elites,” in sneering terms, as depriving the people of the power they should, but don’t have. (Strange: the governmental elite which is presently arrogating to itself Henry VIII powers faster than any government since, well, Henry VIII’s – Divine Right of Johnson, anyone: he should take a lesson from what happened to Charles I – regularly positions itself as “of the people” and “for the people” – but it’s more elite than most elites in this country.)
11. Obsession with crime and punishment: only for some. Corporate crime, corruption and cronyism , and those who profit from them, are exempt by virtue of their status.
12. Rampant cronyism and corruption: There’s so much that there is too much to mention: Dominic Cummings, Dido Harding, Alex Bourne, Lord Frost: cronies and unelected “counsellors” (or should that be “consiglieri”) directing the government of this country. We spoke above of Government “of the people” and “for the people.” What happened to “by the people”? What happened to government “by the people”? The people’s representatives are in parliament, where they are tamely assenting to the stripping of its powers; as for you and me, those of us who protest will no longer be allowed to reclaim our power – let alone Reclaim the Streets – if today’s Bill goes through unopposed.
What do those sections actually do?
Part 3 (clauses 54 to 60), of the Bill would make major changes to the way protests are policed in England and Wales:
- Clauses 54 to 56 and 60 would amend police powers in the Public Order Act 1986 so police can impose conditions on protests that are noisy enough to cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders. (This section includes the criminalisation of single person protest. It also means that if your neighbour believes your actions have caused “serious unease, alarm or distress, they can shut you down and shut you up.)
- Clauses 57 and 58 would amend provisions in the Police Reform and Social Responsibility Act 2011 to expand the “controlled area” around Parliament where certain protest activities are prohibited. It would also add obstructing access to the Parliamentary Estate to the activities prohibited in the “controlled area”.
- Clause 59 would abolish the common law offence of public nuisance and replace it with a new statutory offence of “intentionally or recklessly causing public nuisance”.
The Bill’s Explanatory Notes say the measures are necessary because recent
- changes in the tactics employed by certain protesters, for example gluing themselves to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings such as the Palace of Westminster and newspaper printing works, have highlighted some gaps in current legislation.
Part 4 (clauses 61 to 63) of the Bill would amend the Criminal Justice and Public Order Act 1994 (CJPOA) to:
- create a new offence of “residing on land without consent in or with a vehicle”.
- amend the existing police powers associated with unauthorised encampments in the CJPOA to lower the threshold at which they can be used, allow the police to remove unauthorised encampments on (or partly on) highways and prohibit unauthorised encampments moved from a site from returning within twelve months. (This is the anti-traveller and anti-Roma provision.)
As for the Home Secretary, this is where her powers get a boost: Sections 11 to 14 of the Police Crime, Courts and Sentencing Bill substantially amend – and are designed to amend – the Public Order Act, 1986. In the Public Order Act, all decisions about processions, public assembly, are left to “the senior police officer” whoever they may be. The Home Secretary doesn’t get a look in: the technical autonomy of the police as a body which serves the public is not eroded by any supervision by any political appointee.
The new Bill puts the authority of the Home Secretary over that of the police. It’s simple. That’s it. There is more, however.
Section 12 of the Public Order Act, “Imposing Conditions on Public Processions” is now amended to include “distress” caused by noise to be a reason to impose order. Section 14 is amended to include that a person “ought to know” that they have caused an offence, been told to withdraw, or disperse: this prevents the “I didn’t hear you” defence. The new Act also mandates that not only is a person protesting in public liable if loss of “amenity” has been caused to anyone but also if there is a “risk of loss.” The common law offence of “causing public nuisance” is abolished, and in its place is this:
Section 59: Intentionally or recklessly causing public nuisance
(1)A person commits an offence if—
(a) the person—
(i) does an act, or(ii)omits to do an act that they are required to do by any enactment or rule of law,
(b) the person’s act or omission—
(i) causes serious harm to the public or a section of the public, or
(ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and
(c) the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence.
(2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person—
(a) suffers death, personal injury or disease,
(b) suffers loss of, or damage to, property,
(c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or
(d) is put at risk of suffering anything mentioned in paragraphs (a) to (c).
It is extremely hard to see how any sort of protest does NOT fall into these categories. Theoretically, a person can claim that any protest puts them “at risk of suffering serious distress, serious annoyance, serious inconvenience, and/or serious loss of amenity.” I don’t like what you’re saying? Or shouting? The noise causes me “serious distress.” I can’t use the Speakers Corner at Hyde Park to have a picnic, because you’re speaking there? You’re causing me “serious inconvenience” and “serious loss of amenity.” I disagree with you supporting Remain vocally in a public place because I abhor the EU? That’s “serious(ly) distress(ing).”
And now the new powers for the Home Secretary:
11) (This is subsection 11 of Section 59 referenced above, as intentionally or recklessly causing Public Nuisance, by the way, in case you’re lost with the numbering. But it also applies to the whole of Part 3 on Public Order.)
The Secretary of State may by regulations make provision about the meaning for the purposes of this section of
Police, Crime, Sentencing and Courts Bill Part 3 — Public order 48
(a) serious disruption to the activities of an organisation which are carried on in the vicinity of a public assembly, or
(b) serious disruption to the life of the community.
(12) Regulations under subsection (11) may, in particular—
(a) define any aspect of an expression mentioned in subsection (11)(a) or (b) for the purposes of this section;
(b) give examples of cases in which a public assembly is or is not to be treated as resulting in—
(i) serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly, or
(ii) serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public assemblies in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
(14 ) A statutory instrument containing regulations under subsection (11)may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Let’s unpick that really carefully.
The Home Secretary defines the meaning of “serious disruption.” She can define any aspect of “an expression” in these sections: that is to say she can decide what “serious” means, and also “disruption” and also “noise” and also “distress”, “annoyance,” “inconvenience” and “loss of amenity.” For that matter, she can also define “vicinity” if she wishes.
Furthermore, she can not only give examples of how a public assembly IS to be treated as resulting in serious disruption to the life of a community, but also in how it ISN’T. So theoretically a protest of which she, politically, approves may NOT be defined as causing serious disruption whereas a protest of which she does not approve may.
And she can do this by Statutory Instrument. In theory, the Statutory Instrument has to be laid before and approved by each House of parliament, but it does not have to go through the detailed process of parliamentary scrutiny, and, more to the point, it completely sidelines the opposition, whose function, believe it or not, is to provide checks and balances to the power of the executive.
These are not quite Henry VIII powers – not quite. The Statutory Instrument does have, technically, to be approved. But with a completely supine and acquiescent
Reichstag – sorry, parliament – and an uncontestable parliamentary majority, what the Home Secretary approves will go through on the nod
So yes, this Bill should be opposed. It must be opposed. For all that Robert Buckland, the Minister technically sponsoring it, says that he believes that it does not contravene the European Convention of Human Rights, I believe that it does. Sections of a Bill which criminalise protest, which leave the definition of in what way and to what extent a protest, either personal or public is unacceptable or criminal, to be redefined or changed at the whim of the Home Secretary, do not give members of the electorate the security in expressing themselves that they should have in a democracy. This bill MUST be opposed.
But it’s not quite that simple . . .
Why? Why is this Police Bill so important? Why should it be opposed or not be opposed? Why has Labour painted itself into a corner over it?
Apart from anything else, the Bill is important because of the way it is framed: it’s very much a “the Lord giveth and the Lord taketh away” Bill.
Yesterday Labour said that it would oppose the Bill because of its provisions in Sections 3 and 4 which criminalise protesters and travellers respectively, the former because they are noisy and disruptive and won’t move on, and the latter because they are, you’ve guessed it, noisy and disruptive and won’t move on either.
But opposing the Bill will be hugely problematic for Labour, and it will not look as if they are protecting the populace, but rather the reverse, because within the Bill, despite its two unacceptable sections, are many provisions which serve genuinely to protect people. It makes, for example, spitting at the police and emergency workers a crime, which, given that the Coronavirus pandemic now makes spitting also a potentially deadly act rather more than a disgusting one, has some merit.
There is much of merit in the dealing with child sex offenders. Provisions in Section 2 extend the existing offence of arranging or facilitating the commission of a child sex offence, and extend the existing ‘position of trust’ offences in the Sexual Offences Act 2003 to cover roles in sports and religious settings. Provisions in Section 7 make the “starting point” when setting the term of a life sentence for the premeditated murder of a child, a whole life order. Other provisions state that offenders serving a sentence for offenders of particular concern for a child sex offence would be required to serve two thirds of their sentence in prison before they can apply to the Parole Board for release. This, in particular, would serve to protect victims of sexual crimes from being harmed by the premature release of the perpetrator.
So where does that leave Labour?
It leaves Labour sitting on the horns of a dilemma upon which I should not, myself, personally, like to sit.
Labour is correct to oppose the Bill, because sections 3 and 4 undoubtedly do serve to criminalise protests which have hitherto been permitted. (There is a whole section dedicated to noisy one-person protests which is clearly designed to stop Steve Bray from protesting about Brexit outside parliament, for example.)
Sections 3 and 4 are an assault on our human rights of freedom of expression, and our freedom of assembly, and however much Tory politicians in the debate yesterday insisted that they are not, but were more to protect the “ordinary person” against the disruption caused by e.g. the BLM and the Extinction Rebellion protests of last summer, when one considers the way in which Tories define “freedom of speech” they most undoubtedly are.
The arbitrary nature of the definition of “impact” and the impossibility of defining the exact decibel difference between “noise” and “not noise” – both left entirely to the police – and the extremity of the power vested in the Home Secretary herself, not subject to parliamentary process or scrutiny, argue that they abrogate those rights, including the right to be governed democratically.
Because one also has to look at what this government means, based upon its past record and existing actions when it says, as many Tory MPs are recorded in Hansard as having said yesterday, that it “supports freedom of speech.”
You may speak freely in support of the government or its aims, but you may not, for example speak against it, as witness the recent discussions on “schools should not teach children that anti-capitalism is an acceptable alternative to capitalism” and the whole “woke” debate: woke, specifically being properly defined as “aware of social issues” and “acutely alive to the injustices in society”, rather than its pejorative definition, often used by the “anti-woke” brigade as “soft, left-wing, bleeding-heart liberal with no common sense about crime and the causes of crime.” Labour is undoubtedly only millimetres away from being accused – shock! horror! – of being “woke” if it opposes this Bill; sacrificing the protection of children in favour of (whisper it low, and be very sure that I do not think this way) “ those awful BLM protesters” (Priti Patel qv) and a section of people in society – or rather, a section of people outside society – that it is still acceptable to demonise: those who for cultural reason pursue a nomadic lifestyle.
So, in summary. If Labour supports the Bill, it is damned. If it does not support the Bill, it is damned. Damned if it does, damned if it doesn’t – and it was extremely clear from Hansard, that there was not a Tory MP who stood up to praise its government who did not at the same time get in a cheap gibe at Labour for opposing measure which would protect children against sex offenders.
If one were cynical, one might almost think that the Tory government had framed the Bill directly in such a way that to oppose it on the grounds that it abrogated human rights for some entailed falling into the trap that opposing it also meant accepting the abrogation of rights – the rights of minors to be protected against sexual offenders = for others. It’s very cleverly done.
The other issue of course, is that protest against this particular Bill is also being conflated by Labour with protest against the specific offences committed by the police against peaceful protesters on Friday. Opposing this Bill is being positioned – by the media, among others, as opposing the police aggression against and kettling of the female crowds holding vigil for Sarah Everard, and specifically as opposing the police aggression shown towards, among others, Patsy Stevenson, whose picture has been the defining image of that undoubted violence.
(Incidentally, the Everard case is now active and therefore sub judice. Any mention of the name of the person committing the alleged offence, or of the alleged offence itself in the comments on this piece will be deleted, because the media has already done its damnedest to ensure – by extremely stupid coverage including naming the person and saying that the person has committed the alleged offence – that that individual could potentially claim that their right to a fair trial has been breached.)
Specifically, therefore, after the Everard vigil that went so shockingly wrong, opposing the Bill is being positioned as supporting the rights of women against their aggressors, and against endemic aggression towards women in society.
The government was making capital of this as well, yesterday. (Of course it was.) Currently going through parliament, and now at the report stage in the Lords is the long delayed Domestic Abuse Bill: “To make provision in relation to domestic abuse; to make provision for and in connection with the establishment of a Domestic Abuse Commissioner; to prohibit cross-examination in person in family proceedings in certain circumstances; to make provision about certain violent or sexual offences, and offences involving other abusive behaviour, committed outside the United Kingdom; and for connected purposes.” The government insisted that it was here that violence against women should be dealt with, ignoring the fact that although there is a technical difference between domestic, private and personal abuse of women – which the Domestic Abuse Bill purports to deal with – and the systematic, endemic and institutional violence against women we saw on Clapham Common, the pubic and the private violence are intimately interconnected, and there will never be effective policing of private violence unless it can be eradicated from the public violence we saw there.
The Hansard transcripts make it clear that the government in the persons of its ministers and hangers-on will not cease to castigate Labour for opposing a Bill which takes away from our freedoms and renders effective protest impossible: which mutes and constrains the free speech and the right of public assembly of the people.
They are enabled to do so on the excuse that this makes Labour “soft on crime, soft on the causes of crime” because the Police, Crime, Courts and Sentencing Bill has been very carefully framed to, within its body of largely acceptable and in most cases justifiable provisions, remove our democratic freedoms, while circumscribing the freedoms of genuine criminals, and thus, effectively, criminalising the electorate insofar as it does not agree with the actions of the government.
The fact that a political appointee supersedes the autonomous police in exercising the decision making and juridical function about which sections of the electorate can be designated as “criminals” and in what respect, and where, and how, further emphasises that this conflates opposition to the government with criminality.
This is not the action of a government. This is the action of a regime. This is not the action of a democracy. This is the action of an authoritarian oligarchy, and a fascist one to (jack)boot.
Good luck, Labour. Cometh the hour, cometh the man? We can only hope so.