A “protest powers factsheet” that accompanied the launch of the Police, Crime, Sentencing and Courts Bill quotes Metropolitan Police Commissioner Cressida Dick as saying new legislation was needed to cope with XR because the existing Public Order Act 1986 was outdated.
The new bill was required, Dick said, “Specifically to deal with protests where people are not primarily violent or seriously disorderly but, as in this instance, had an avowed intent to bring policing to its knees and the city to a halt.”
According to Mike Schwarz, a partner with law firm Hodge Jones & Allen who has been representing and advising environmental activists for 30 years - those wanting to get involved in direct action or protest marches have a number of issues they need to consider.
The bill lowers the threshold for committing some criminal offences and for when the police can get involved, and it increases their power to restrict protests or to use their existing powers to arrest and prosecute someone if an offence is deemed to have been committed.
“It creates new offences as well,” Schwarz added. “It creates in statute, as opposed to judge-made law, the offence of public nuisance. It seems that it will be an easier offence to commit if one causes, intentionally or recklessly, serious harm to a section of the public, or obstructs them in the exercise of their rights.”
The Home Office said the new offence captures conduct “which endangers the life, health, property or comfort of the public”. But being a public nuisance could involve producing excessive noise or smells or behaviour such as hanging from bridges.
Campaigners opposed to HS2 believe the bill has also been drafted to curtail their activities. According to Joe Rukin of Stop HS2, the government realised that the laws relating to protests around construction sites were not as a draconian as they would have liked them to be.
Under current legislation, protesters may get arrested but are normally released without being charged with any offence, and so are free to carry on protesting once they have been let out, Rukin said. So ministers wanted a new law that would not only criminalise protesting within a certain distance of an HS2 construction site, but mandate a prison sentence as a stiffer penalty for those that break the law.
“If this bill gets passed as it stands, the very first order will be, ‘No protests anywhere near HS2. We don’t care if you're a landowner who hasn’t been paid so you’re blocking access to the land, or if you’re someone holding up a banner at the roadside saying we’re cutting down trees we said we wouldn’t, or if you’re living up that tree to stop us cutting it down. You’re in our way, it’s not allowed and you are going down.’”
Dr James Dyke, senior lecturer in global systems at the University of Exeter, has participated in XR marches and believes the impacts of the new bill may not be as great as some people fear. People have this “innate sense of natural justice” and will still believe that “marching down a road and singing songs” is not something they ought to be worried about participating in.
It could even start useful discussions about what policing by consensus means and what police forces are being used for. “It reminds me of what happened when they started fracking in the Home Counties – it was the best thing that ever happened for climate policy in the UK,” Dyke said. “It meant that you had affluent people coming face-to-face with our country’s requirements for hydrocarbons – suddenly, they weren’t just in the North Sea and out of sight and out of mind.”
The new law will pave the way for jail terms of up to 10 years, and the police could even specify that music or singing would not be allowed after a certain time or beyond a particular place. “And if you breach those conditions, you are committing a criminal offence, and you could be arrested and prosecuted,” Schwarz said.
Schwarz believes the bill may clash with rights such as freedom of expression and freedom of assembly held under the European Convention on Human Rights (ECHR), though drafters of the bill are obliged to sign if off as ‘ECHR compatible’.
“But that may not preclude a challenge when a prosecution arises, and the application of the police’s discretion when enforcing the new law may give rise to ECHR challenges, too,” Schwarz said.
The Home Office has denied it contravenes the convention, saying the new legislation will uphold the right to peaceful protest while providing the police with the necessary powers to stop disruptive protests from disproportionately infringing on the rights and freedoms of others. Human rights lawyers will no doubt be keeping a very close eye on that as and when the bill becomes law.