Ever since the 2019 ‘October rebellion’ led by Extinction Rebellion, Home Secretary Priti Patel has been promising to equip the police with extra powers to clamp down on peaceful protest. This drive increased with the 2020 Black Lives Matter protests, which began two months into Britain’s Covid lockdown and continued throughout the summer, involving thousands of people in demonstrations against police brutality and racism. Whilst, over the past year, the government has used Covid Regulations to limit protest with varying degrees of success, it is clearly looking for longer term legislation with which to do this once we are out of pandemic conditions. On 8 March 2021 the government published the Police, Crime, Sentencing and Courts Bill, which contains a series of measures specifically designed to restrict our right to protest. NICKI JAMESON reports.
Covid Regulations and human rights
The RCG has stayed on the streets throughout the lockdown. We are acutely aware of the reality of the pandemic and have taken every possible measure to ensure our political activity is conducted in a safe, socially distanced way. There is no evidence that any outdoor protests have been responsible for the spread of the virus; as opposed to all the indoor work, education and hospitality venues the government is so keen to force us back to, as it repeatedly puts the profits of the capitalist economy above the health of the working class. We refuse to allow them to use the Covid emergency as a smokescreen for denying us the right to protest and campaign.
In the course of the last year, we have been through many different stages in relation to the ever-changing Covid Regulations. At some points the rules have explicitly mentioned the right to protest, subject to various conditions, and at others have had no mention of this right. Nonetheless, as was confirmed in the unsuccessful High Court challenge brought by Reclaim These Streets in relation to their planned vigil for Sarah Everard on 13 March, there is nothing in the Regulations which actually bans protest. Furthermore, irrespective of what is and isn’t stated in the Regulations, they are ‘secondary legislation’ and consequently subsidiary to primary legislation or ‘statute’ – in this case the Human Rights Act (HRA).
The HRA incorporates the European Convention on Human Rights (ECHR) into British domestic law. Article 10 of the ECHR protects the right to Freedom of Expression and Article 11 the right to Freedom of Assembly. These are what is known as ‘qualified rights’, which means that they can be subject to limitations and restrictions, but only in a way which is ‘proportionate’ in response to a ‘legitimate aim’ and ‘necessary in a democratic society’. The protection of health is specified as such an aim, so the police can impose restrictions on a protest in order to protect health; however this does not give them the power to ban it. In the Reclaim These Streets case, although the judge refused to issue a declaration that the police action was unlawful, he confirmed that Covid Regulations had to be read subject to Article 10 and 11 and that the police needed to consider the rights conferred by these Articles when deciding how to handle events.
Covid Regulation exceptions
Under the lockdown regime in place from 4 January 2021, the whole of England is subject to ‘Tier 4’ restrictions, meaning that you need a ‘reasonable excuse’ to leave your home. If you have no reasonable excuse, you can be given a direction to return home. If you contravene the Regulations or ignore a direction you can be issued with a fixed penalty notice (FPN).
Additional parts of the Regulations say that you cannot take part in or organise outside gatherings of more than two people, unless one of various exceptions applies. Failure to abide by this can result in a FPN of up to £6,400 for a participant (following multiple FPNs at a lower level) or £10,000 for an organiser. Between 4 January and 29 March the Regulations contained no specific protest exception; however, other legitimate reasons for being outside your house included: providing voluntary or charitable services, picketing (a right confirmed following a legal challenge by Unite the Union in November 2020), and election campaigning.
On 22 March the government published Statutory Instrument 2021 No 364, which reinstates the ‘protest exception’ which was in the Tier 3 Regulations. It is now expressly lawful to be out of your home at a gathering ‘for the purposes of protest’ provided that ‘it is organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body, and the gathering organiser takes the required precautions in relation to the gathering’.
Fixed penalty notices
If you are given a FPN for breaking Covid Regulations, you can either pay it or challenge it. If you elect to challenge it, the Crown Prosecution Service has to then decide whether to take you to court. If this happens, the court will determine whether you are guilty of the offence and, if so, what financial penalty to impose on you; this includes an assessment of what you can afford. It isn’t a straight question of the court imposing or not imposing the original fine. This means that anyone given a high level FPN has good reason to go to court, as, even if found guilty, they may end up with a caution and court costs, as opposed to paying £10,000.
On 23 February the High Court overturned a conviction imposed on Keith Neale for obstructing a police officer by not providing his name and address or an explanation of why he was outside, when approached by the police in Cardiff in April 2020. The court ruled that Covid Regulations do not themselves provide the police with any power to take people’s details, and that people retain the right not to provide information in response to questions (although it does remain the case that the Police and Criminal Evidence Act 1984 gives the police a power of arrest for the purpose of ascertaining a person’s identity). The judgement pointed out that Neale was not placing anyone at risk by being outside, and that the only risks to public health were incurred by his subsequent arrest, detention and prosecution. Importantly, it also confirmed that reasonable excuses for being outside are not limited to those explicitly set out in the Regulations.
The new Police Bill and what it means for protest
The 2021 Police Bill had its First Reading in Parliament on 8 March and Second Reading on 15-16 March, after which it was passed by a vote of 359 MPs to 263. It will now be considered by a parliamentary committee, which is due to report by 24 June. The protests in Clapham and outside Scotland Yard and Parliament on 13-17 March hugely raised the profile of the issue and shamed Labour Party MPs – who had previously planned to abstain – into voting against the Bill, and in some cases speaking strongly against its attacks on the freedom to protest.
When the committee stage does end, it will be followed by the Third Reading in the Commons. The Bill will then go to the House of Lords and finally back to the Commons where it will become law. Along the way there may be amendments and revisions but the only hope of defending the right to protest is through a mass public campaign.
The Bill contains a plethora of punitive measures, many involving longer prison sentences or rendering it more difficult for those in prison, including child prisoners, to be released once they are incarcerated. Other sections target the Gypsy and Traveller Community.
Part 3 of the Bill (clauses 54-60) is concerned with protests and, in particular, with amending the existing provisions of the Public Order Act (POA) 1986. In addition, Clause 46 contains an amendment to criminal damage laws specifically designed to criminalise people like the Bristol BLM protesters who took down the statue of slave owner Edward Colston, with any such damage to a memorial (or even to a bunch of flowers left at one) punishable by a prison sentence of up to ten years.
The main proposed changes contained in Part 3 are as follows:
- The police will have the power to impose the same kind of conditions on static demonstrations that they currently can on marches, ie any that they think are needed. At present s14 of the POA only allows for conditions on static demonstrations in relation to the time and location of the event and number of participants.
- The criteria for imposing conditions on both marches and static demonstrations will include where there is a risk that noise will cause serious disruption. It will be up to the Home Secretary to decide the definition of ‘serious disruption’.
- Conditions will also be able to be imposed where the noise of the protest ‘may have a relevant [significant] impact on persons in the vicinity of the procession’. The description of a ‘relevant impact’ includes where ‘it may cause such persons to suffer serious unease, alarm or distress’ [emphasis added].
- In the section of the POA which states that someone who ‘knowingly fails to comply with a condition imposed under this section is guilty of an offence’, the word ‘knowingly’ has been removed. A new clause now also states that it is an offence if ‘in the case of a public procession in England and Wales, at the time the person fails to comply with the condition the person knows or ought to know that the condition has been imposed.’ The government openly states that this change is in order to ‘close a loophole which some protesters exploit’ by ‘cover[ing] their ears and tear[ing] up written conditions handed to them by the police’ in order to avoid conviction on the basis that they were unaware of a condition having been imposed.
Britain already has a vast panoply of laws with which it can limit, police and criminalise dissent in all its forms. The proposed amendments are a further attempt to neutralise peaceful protest and render it completely ineffective. As the RCG speaker at the open mic rally in Parliament Square on 17 March put it: ‘The point of a protest is to be disruptive!’
As communists we have no illusions in Parliament, the legal process or ‘British democracy’ and we are not afraid to break laws which limit our ability to protest. At the same time, it is crucial that we continue to use all means available to defend the limited organising space which the capitalist state allows us and that we resist all attempts to encroach further on it.
FIGHT RACISM! FIGHT IMPERIALISM! 281 April/May 2021
