The Future of the Police, Crime, Sentencing and Courts Bill in the UK
The Police, Crime, Sentencing and Courts Bill was proposed in the British parliament in March 2020 by Conservative Member of Parliament Robert Buckland. The Bill was drafted and proposed as a corollary of the ongoing Extinction Rebellion protests across the United Kingdom, and the Black Lives Matter protests which swept the country in 2020. Many of the more problematic sections of the Bill rose to prominence in the public consciousness during protests following the brutal murder of a woman in London perpetrated by a Met police officer, during which police officers were filmed forcibly dragging peaceful, unarmed women from marked protest routes (the subsequent inquiry into police conduct found the police response to have been appropriate in these instances, sparking even more public outrage).
Extinction Rebellion protestors gather in London (2018). Photo: Wikimedia Commons.
By: Madeline Goodlad, Staff Member
Introduction to the Police, Crime, Sentencing and Courts Bill
For many of its critics, the contents of the Police, Crime, Sentencing and Courts Bill (the “Bill”) represent a terrifying attempt to chill protest and the peaceful exercise of free speech in the United Kingdom. Some of these more troubling items included giving the home secretary the power to ban protests because she believes they might be “serious[ly] disrupti[ve],” including creating too much noise. Incidentally, the current Tory home secretary, Priti Patel, has been vocal in her support of the original Bill. She was also instrumental in pushing for the prosecution of the “Colston Four,” BLM protestors who destroyed the statue of slave trader Edward Colston in Bristol during the 2020 protests (the Four were later acquitted of all charges).
The provisions in the original version of the Bill would also have given the police and government “more control over where and when demonstrations took place”; and granted police extended stop and search powers which would allow the police to detain and search people and vehicles if they suspect they might be carrying anything that could be used in protests. This latter development is particularly resonant in the context of the history of racial discrimination in the police’s stop and search powers. A new offense of damage to memorials or statues could, under the proposed Bill, have led to a sentence of up to 10 years in prison (a pointed reference to the well-documented defacement and destruction of several statues during the 2020-2021 BLM protests). Under current British law, if the police want to place restrictions on a protest, they have to show it may result in “serious public disorder, serious damage to property or serious disruption to the life of the community.”
The Current Status of the Bill in Parliament
The Bill was agreed to by the House of Commons on July 5, 2021, on its third reading by a vote of 365 votes to 265 (largely due to the unexpected Tory landslide win in the 2019 general election). On January 17, 2022, the Bill was subjected to its third reading in the House of Lords, where many of the Bill’s more controversial provisions were soundly rejected by the Lords. The UK’s unelected House of Lords was much more united and vocal in its rejection of the undermining of the democratic bastion of the right to protest than the facially more democratic House of Commons. Several extensive amendments to the Bill were made by the House of Lords in this reading, essentially eliminating the more blatant attacks on freedom of protest. A spokesperson for Downing Street expressed disappointment that the Lords were unwilling to clamp down on the “guerilla tactics” of protestors.
Despite the promising stand made in the House of Lords to protect free speech and the right to protest in the United Kingdom, the Conservative government has already made it clear in the succeeding weeks that many of these provisions will be reintroduced in amended form in the next reading of the Bill in Parliament. When asked if measures against noisy protests would be reintroduced in the Commons, the current Justice Secretary Dominic Raab told the BBC: “We’ll look very carefully at all of that, but, yes, absolutely.” He said that noise produced by protests “cannot be allowed to interfere with the lives of the law-abiding majority,” adding that the Lords’ amendments were “disappointing.”
Tension between the Bill and the European Convention for the Protection of Human Rights and Fundamental Freedoms
Critics of the Bill and legal commentators have warned that these provisions, even in a softened form, are almost certainly in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) which was enacted into British law in the Human Rights Act of 1998. The protections granted in the ECHR are therefore codified in British law, even after Brexit. Further, the Human Rights Act also requires UK courts, including the Supreme Court, to “take into account” decisions of the European Court of Human Rights. Therefore, the protections granted to protest and freedom of speech under Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) would presumably be enough for the British judiciary to strike down the more repressive sections of any Bill that does end up being passed.
In particular, the proposed provisions would allow conditions to be imposed on protests where the noise generated “may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity,” or may cause serious unease, alarm or distress. There is no requirement that these impacts actually occur or have occurred, only that the government judges that they “may” occur or “may” be “significant.”
These restrictions on potentially noisy protests conflict with established European Court of Human Rights interpretations of Articles 10 and 11. The case law from the European Court of Human Rights on Articles 10 and 11 has been largely very consistent on this subject: refusals by governments to authorize assemblies without very particular and reasonable justification (as would be Priti Patel’s right under the original Bill) have been swiftly condemned (see e.g., Lashmankin and Others v. Russia (2017); Ollinger v. Austria (2006); and Saska v. Hungary (2012)). Restrictions on noise like shouting and speeches have also been deemed to amount to interference with protestors’ Article 10 rights (see e.g., Gul and Others v. Turkey (2010); Yilmaz and Kilic v. Turkey (2008); and Feridun Yazar and Others v. Turkey (2004)).
The Requirements Placed on British Courts Post-Brexit
Though the Supreme Court is required to “take into account” decisions of the ECHR, UK courts are not required by the Human Rights Act to actually follow these decisions. They can decline to do so. Furthermore, because of the European Union (Withdrawal) Act of 2018, British courts no longer have to honor precedents set by the European Court of Human Rights after December 31, 2020; and the British Supreme Court may overturn precedents set prior to December 31, 2020, under the same circumstances that they may overturn their own precedents (i.e., when there is a strong policy reason to do so due to outdated legal thinking). Therefore, if the British Supreme Court were so inclined, they could not be strictly bound by the Strasbourg Court’s case law on ECHR Articles 10 and 11 in their particular interpretation of the Police, Crime, Sentencing and Courts Bill. While they would have to still follow the letter of the law in the Human Rights Act, they will not necessarily be bound by Strasbourg’s particular interpretations of the text.
On the other hand, there is reason to be hopeful on this front. Unlike in the United States, British Supreme Court justices are appointed by an independent commission rather than by the presidential (or prime ministerial) nomination. Therefore, the Supreme Court tends to be much less politically polarized, suggesting that a Conservative government would not be able to rely on friendly faces on the bench to push through anything which egregiously contradicts Strasbourg’s case law.
Conclusion
While the Tories still seem intent on introducing some formulation of these draconian measures into British law, the House of Lords and the judiciary seem well-positioned to strike down any of the more egregious proposals. However, even if the more stringent anti-protest measures do not make their way into law, the sustained and near-unanimous attempt from the Conservative government to undermine the right to protest is very telling of the intentions of the current regime.
Madeline is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of Edinburgh in 2020.