Photo: Steve Eason, KTB protest, Parliament Square, 5 July 2021

Amending the Police Bill won’t be enough

Kate Bradley summarises the scrutiny report by the Joint Committee on Human Rights on the Police Crime Sentencing and Courts Bill, considering how this might impact this new repressive legislation.

In order to be made into legislation, Bills must pass through several stages in the House of Commons, then the House of Lords, and finally return to the Commons. During the Bill’s passage through the Commons, now complete, a particularly critical set of amendments was proposed by the Joint Committee on Human Rights (JCHR), which is made up of different parties’ politicians from both houses and scrutinises the human rights impact of new legislation. Their reports often impact what final legislation looks like. 

The JCHR is by no means a left-wing grouping, led by Labour’s Harriet Harman and featuring SNP, Tory, Lib Dem and cross-bench politicians, but in this case, it has found significant problems with the Bill and proposed a raft of changes that would neutralise some of the worst parts of Part 3 of the Bill, which is broadly about protest.

Why does this matter? Well, if we are to challenge the Bill, we have to keep an eye on the form it ends up passing in. There’s no point in arguing against clauses that have already been removed, or being nervous of breaking rules that never actually made it into law. It’s unlikely that the proposed changes will all be incorporated into the Bill, or that it will significantly reduce the danger it poses. But it is interesting that there is pushback from inside Parliament, and it is important to keep an eye on the fissures and arguments between those who have the power to pass, challenge and demand enforcement of the Bill. 

These amendments would not solve the problem of the legislation being inherently repressive and we must still fight to Kill the Bill entirely, even (and especially) if and when it passes. There are many examples of legislation being repealed after becoming too hard to justify or enforce, such as Section 28 legislation banning the ‘promotion of homosexuality’ in schools (finally defeated after mass demonstrations and resistance in 2003). This article isn’t meant to suggest that the focus should be on Parliament – in fact, quite the opposite: it should show us the limitations of amendments alone, and encourage us to focus our efforts elsewhere.

What does the JCHR propose to amend?

The JCHR report suggests a series of amendments because the committee deemed the Bill incompatible with human rights. It would conflict with our human rights to freedom of expression and assembly, especially around noise restrictions. The right to be noisy and annoying may be inconvenient for the government, but there are existing protections for protesters’ right to express themselves in the Human Rights Act 1998. It should be no surprise that the government also wants to undermine and ‘update’ the Human Rights Act, as it conflicts with their wider goal of reducing accountability and democracy.

The report notes that it seems that the government only asked police if the Bill would increase the ‘efficiency and effectiveness’ of protest policing, not whether this was necessary. This is an important point, as it shows that few efforts were made to consider if the Bill is really even wanted by police. Some of the comments that the JCHR collected suggest that even police officers and spokespeople are unhappy about the Bill, or do not feel that it is being put in place to help them, more to push them to police in a certain way. One former chief superintendent has been vocal in opposing it, arguing that it would enable more ‘political interference’ in policing, the consequences of which would then be felt in the police’s already tarnished reputation.

The JCHR report also argues that the Bill is too subjective and open to interpretation, suggesting clarifications and tighter definitions for phrases like ‘serious disruption’ and ‘serious harm’. Vague terms are dangerous because they give senior police officers wide scope to use the Bill in a wide range of situations and without the chance of much accountability afterwards. They also suggest that new conditions available for policing ‘assemblies’ (static gatherings) should be made explicit and more tightly defined in the legislation, getting rid of another vagueness that would allow the Bill to be used broadly to impose whatever conditions police wanted on the day.

The report also argues that, if more restrictions are to be allowed, data should start to be collected on the use of restrictions by police, so there can be scrutiny of the tactics the police choose to use. It’s amazing that this data is not collected already, and though it sounds like a mere tick-box exercise, it will be important if we have to resist the Bill’s implementation. Imagine trying to resist Stop and Search without the data we so often see on how it is being applied!

The report suggests amending the Bill to protect protesters who genuinely didn’t know about conditions on a protest. At the moment, the Bill potentially criminalises any protester that breaks conditions, even if they were unaware they were doing so. So, if a demonstration became too noisy, the police could use the ‘noise trigger’ to decide that there was now a cap of 500 protesters on the demonstration. If you were the 501st protester, even though you did not and could not know it, this could give the police scope to arrest you for breaking the conditions of the protest. The JCHR seeks to amend this so that genuine ignorance is still a defence if you are arrested. However, they do agree that the ‘loophole’ around deliberately avoiding guidance should be closed.

The Bill makes a new criminal offence of ‘public nuisance’. The report recommends that police don’t use the new offence for protests, and also that the widening of restrictions around Parliament should not be abused to shut down protests unnecessarily. However, these are recommendations, not amendments. The report suggests that the human rights to freedom of expression and assembly should be added as a ‘reasonable excuse’ for ‘public nuisance’. This would make it harder to use the new public nuisance offence against protesters because they would have more of a defence. However, as usual with questions of legality, this doesn’t determine how the law would be used on the ground: not being willing or able to actually prosecute a crime does not mean that police wouldn’t use these offences spuriously to scare, temporarily detain or clear protesters from an area.

Currently, the Bill threatens to increase penalties for protest organisers and participants. The JCHR argues that higher penalties are unnecessary and may deter non-violent protests, which they see as a key part of a functioning democracy. 

Most strikingly, the report suggests that the Bill should be amended to build a ‘right to protest’ into law for the first time. This would aim to provide some explicit protection against draconian charges for protest offences. I suspect this is one of the amendments that is least likely to be accepted, as it would have wider implications than the Bill itself.

The report suggests removing the section that enables the police to use powers against one-person protests, leaving the definition of an ‘assembly’ as a gathering of two or more people.

We still have to Kill the Bill

This is just a summary of the criticisms and proposed amendments. Most of these suggestions relate to how vague and unaccountable the proposed laws are – how they do not allow for proper scrutiny on police decisions, and how they risk conflicting with other legislation. But even if all these amendments were made, which is unlikely, the Bill would still be an extension of the repressive powers of the state. Importantly, the amendments might allow for more scrutiny on police decisions, but mostly only after the damage is done: e.g. during criminal proceedings. Plus, some of the worst parts of the Bill affecting Gypsy Roma Traveller communities and widening police powers are not in Part 3, so would remain unaltered by these changes.

Whether or not amendments are made, we still have to Kill the Bill.

The Kill The Bill coalition is planning a day of action for 21 August.