Sponsored by the UK Home Office, The Police, Crime, Sentencing and Courts (PCSC) Bill is a proposed piece of legislation that makes the first major changes to the Public Order Act 1986 since 2003. If passed it will grant police, an “unprecedented extension” of powers to, inter alia, shut down peaceful protests with limited balances and checks in place to ensure human rights are respected (Amnesty, 2021a; para 2).
The PCSC Bill recently passed its 3rd reading in the House of Commons with 365 MPs voting in favour and 265 against, and currently is in its 2nd reading at the House of Lords, where it may be debated, and further amendments suggested. Launched in March, the Bill has over 300 pages and is particularly diverse and wide-ranging, encompassing a variety of issues ranging from dangerous driving and the release and probation of criminals to provisions for deaf jurors. As such, it has been dubbed by one MP as “a trojan horse” whereby particularly controversial laws are believed to have been hidden or concealed by a multitude of uncontentious ones (Russel-Moyle, 2021; 100). It is no surprise then, that it has triggered widespread outcry across the UK since its inception and “Kill the Bill” protests across the country including in London, Bristol, Manchester, Sheffield and Liverpool.
An Environment of Controversy
The Bill was announced the same week as the recent Commission on Race and Ethnic Disparities (CRED) report which confidently asserted that there is no institutional racism within the UK and was strongly condemned by UN Human Rights Experts arguing it seeks to “rationalize white supremacy” (OHCHR, 2021a, para 3). Moreover, in an apparent climate of controversy, the UK government has recently launched further contentious and problematic Bills. For instance, the Nationality and Borders Bill, which was proposed last month and has recently passed its 2nd reading at the House of Commons and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (CHIS) which passed this March and received condemnation from UN human rights experts arguing it jeopardises access to justice (Griffin, 2021).
Prominent human rights organisations such as Amnesty International have called for the PCSC Bill to be dropped entirely calling it “the most significant curtailment of rights in decades” (UK Parliament, 2021b, para 5), and are urging the British public to write to the Prime Minister to halt the rushed passage of the Bill (Amnesty, 2021). They argue that it “cracks down on explicitly nonviolent dissent.” (Ibid, para 3) and whilst they recognise there “may be some welcome provisions within it, those provisions could and should be introduced through other more appropriate legislation” (UK Parliament, 2021B).
Moreover, over 250 civil society groups and 700 legal academics have voiced concern over the scope and scale of this Bill, expressed in a recent open letter to the Home Secretary and Secretary of State for Justice, which urges the government to fundamentally rethink its approach (Friends of the Earth, 2021). Parliament’s own Joint Committee on Human Rights (JCHR) also stressed the Bill is “oppressive and wrong” and ultimately “inconsistent” with existing human rights legislation (Siddique, 2021; UK Parliament 2021c), and UN human rights experts have also condemned it (OHCHR, 2020; Griffin, 2021).
Additionally, whilst numerous MPs, including former Prime Minister and Home Secretary Theresa May, have also expressed concern or apprehension around certain aspects of the Bill, many voted in support of it under the assumption it would be sufficiently scrutinised and improved during the Public Bill Committee examination (Liberty, 2021). However, this was not the case and many of the worrisome elements initially made reference to have been left unamended.
The UK Government’s Narrative
The main argument touted by the government in response to these criticisms is that the Bill protects women. Home Secretary, Priti Patel, argued the Bill needed to be passed to “safeguard more and more women and give the protection that they desperately need from their abusers” (UK Parliament, 2021, column 36). However, a plethora of women’s rights organisations have disputed this, strongly rejecting any suggestion that it supports female victims of violence to secure either safety or justice (EVAW et al, 2021; 3). Instead, women’s charity End Violence Against Women Coalition (EVAW), called out the “disproportionate impact on minoritised and marginalised women” the Bill would cause (EVAW, 2021, para 1). Moreover, Hannah Couchman, Senior Legal Officer at the women’s charity, Rights of Women, argued the Bill actively “entrenches a reliance on powerful institutions with histories of discriminatory approaches and weak accountability mechanisms and does nothing to address the underlying causes of offending” (Rights of Women, 2021, para 47).
Naturally, the Bill does have some useful provisions, which one would hope to be the case in such a lengthy Document. For instance, increasing the minimum time convicts of rape and assault have to spend in custody from half their sentence to two-thirds and implementing provisions for British Sign Language interpreters to assist deaf individuals during jury service. However, this does not mitigate the existence of some particularly problematic elements.
Key Controversies of the PCSC Bill
Some of the key components of the Bill eliciting major controversy include:
Increased Powers to Stop Protests
-The ability to impose conditions on protests where the noise generated “result in serious disruption to the activities of an organisation” or “may have a relevant impact on persons in the vicinity”. The broad term “impact” may effectively criminalise protests that cause any impact, the very goal of any demonstration. Additionally, the Home Secretary is also granted powers which allow them to define the meaning of serious disruption, which effectively give them the power to shut down protests they may disagree with. Indeed, the ramifications of this change also mean prison sentences can be handed out to protestors that simply make too much noise.
-Additionally, the Bill extends police powers over single-person and static protests, such as imposing a start and finish time, and the location of the protest, by removing the distinction between legislation concerning large and small protests. This also means that the repressive conditions above may also be applied to small or static protests.
Changes Concerning the Crime of Public Nuisance
-The Bill also seeks to make public nuisance a statutory offence with a maximum sentence of ten years and expands the definition of public nuisance to include “serious annoyance”. Whilst the UK government have misleadingly suggested that this policy was recommended by the 2015 Law Commission report, the report in fact did not make any reference to annoyance being included as a provision, nor did it specifically recommend a maximum sentence of ten years (The Law Commission, 2015). Additionally, whilst the report did suggest codifying the offence, its application was not considered in the context of protests.
-Since in practice, protests are, by their nature, likely to cause serious annoyance or inconvenience, many demonstrators may fall victim to this offence and receive a prison sentence of up to ten years. Liberty has highlighted that this provision may well be used as a “catch-all to sweep up otherwise lawful protest activities” due to the “wide range of conduct it captures” (Liberty, 2021; 17).
Disproportionate Sentences for Damaging Statues and Memorials
-The Bill also increases the maximum sentence of damaging statues from 3 months and a maximum fine of £5,000 to up to ten years in prison. Many argue this is wholly disproportionate and threatens an already overwhelmed prison service.
Additional Concerns
However, there are also many other concerns surrounding the Bill including the extraction of information from electronic devices which weakens crucial data, privacy and equality protections of individuals, particularly victims of rape or sexual (Big Brother Watch et al, 2021). Moreover, the trespassing and “unauthorised encampments” component of the Bill threatens to criminalise and further entrench homelessness, jeopardise the right to protest overnight, and also target Gypsy, Roma and Traveller (GRT) communities for residing or indeed even “intending to reside” on land (Liberty, 2021). This may also carry a fine of up to £2500, a 3-month prison sentence and the ability to seize a vehicle.
The Importance of the Right to Freedom of Assembly
Under human rights law, everyone has the right to freedom of peaceful assembly. This is enshrined in Article 21 of the International Covenant on Civil and Political Rights (ICCPR) and Article 11 of the European Convention of Human Rights (ECHR), both of which the UK is are currently committed to adhering to.
The right to freedom of assembly represents a cornerstone of democracy where “changes can be pursued through discussion and persuasion, rather than use of force” (OHCHR, 2020; para 4). Indeed, it is an important mechanism that enables holding those in power to account with most of what is now deemed political progress starting as a protest. By placing undue limitations on this right public safety is not secured, but rather undermined.
The Pandemic as an Impetus
The pandemic has set a dangerous precedent allowing governments around the world to supress civil liberties and established freedoms under emergency measures (The Economist, 2021; Amnesty 2021). It has presented an opportunity to rapidly pass emergency legislation expanding state power but has equally generated fears that such powers may never be relinquished (Gebrekidan, 2020). Moreover, whilst such a global emergency requires direct measures to protect public health, the limited safeguards in place have led to many governments exploiting the crisis to seize power over matters unrelated to the pandemic (Ibid, 2020).
Indeed, The UN Special Rapporteur on counterterrorism and human rights, Fionnuala Ni Aolain, has warned that “We could have a parallel epidemic of authoritarian and repressive measures following close if not on the heels of a health epidemic.” (Gebrekidan, 2020, para 6).
In the context of the UK, the PCSC Bill appears to have been rushed through Parliament on an expedited timetable, with less than a week between the Bill’s publication and its second reading (Amnesty 2021; Good Law Project 2021). This significantly limits the time available for MPs but also affected communities to effectively examine the legislation and repercussions of the Bill.
Additionally, during the pandemic, protests have been limited and officers have ultimately had the power to break up and “ticket people for being part of a protest, on coronavirus health grounds” (BBC News, 2020; para 7). Thus, it has been made increasingly difficult for individuals, particularly marginalised communities to make their voices heard surround the Bill.
Furthermore, the support the bill does have appears to have been garnered or at least facilitated by the timing of the Bill, by utilising the current rhetoric surrounding protest which “downplay the importance of the right to peaceful protest and treat it as an inconvenience in conflict with the public interest” (JCHR cited in UK Parliament, 2021c; para 8).
Conclusions and Recommendations
Overall, this Bill has the potential to severely undermine established rights and freedoms enshrined in human rights law and action must be taken to ensure their protection. Human rights groups such as Amnesty have called for the Bill to be dropped entirely due to the scale of problematic issues within the Bill (UK Parliament, 2021b), but failing this have insisted certain provisions must be dropped. Indeed, since the Bill has been approved by the House of Commons, preventing the Bill passing into law is unlikely. Therefore, the House of Lords must suggest amendments to the Bill. Alternatively, the House of Lords can delay the Bill and force the Commons to reconsider their decisions.
Nevertheless, in concurrence with, inter alia, Amnesty’s suggested amendments, Parliament must:
“ – Amend Part 2 Chapter 1: strategies to reduce serious violence
– Remove requirements to supply information to local Policing Bodies
-Remove language placing qualifications on data protections
-Insert new clause to reference the Public Sector Equality Duty
-Ensure the rights of victims are safeguarded
-Remove Part 3: public order
-Remove Part 4: unauthorised encampments
-Remove Part 10 Chapter 1: serious violence reduction order
-Amend Part 2 Chapter 3 regarding the extraction of information from electronic devices ” (cited in UK Parliament, 2021b, para 3)[1]
By Catherine Greenacre
References
Amnesty., (2021), UK: Policing bill will normalise ‘dangerous over-policing’ of peaceful protest, Amnesty International, [online], Available at: https://www.amnesty.org.uk/press-releases/uk-policing-bill-will-normalise-dangerous-over-policing-peaceful-protest, Accessed: 10/08/21
Amnesty., (2021a), UK GOVERNMENT: STOP THE ASSAULT ON OUR FREEDOMS, [online], Available at: https://www.amnesty.org.uk/actions/uk-government-stop-assault-our-freedoms, Accessed: 11/08/21
BBC News., (2020), Coronavirus: Are protests legal amid lockdown?, BBC [online], Available at: https://www.bbc.co.uk/news/uk-52909814, Accessed: 14/08/21
Big Brother Watch., Amnesty International UK., Centre for Women’s Justice., defenddigitalme., End Violence Against Women., Fair Trials., JUSTICE., Liberty., Rape Crisis England & Wales., The Survivors’ Trust., (2021), Committee Stage Briefing on digital extraction powers in the Police, Crime, Sentencing and Courts Bill, [online], Available at: https://bigbrotherwatch.org.uk/wp-content/uploads/2021/05/Committee-Stage-Briefing-on-digital-extraction-powers-PCSC-Bill-10-NGOs1962.pdf, Accessed: 15/08/21
ECNL., (2021), The United Kingdom’s Police, Crime, Sentencing and Courts Bill: Analysis of compliance with international human rights standards, [online], Available at: https://ecnl.org/sites/default/files/2021-04/ECNL%20SUMMARY%20-%20Police%20Crime%20Sentencing%20and%20Courts%20Bill%20Briefing%2022%20April%20-%20update.pdf, Accessed: 10/08/21
End Violence Against Women and Girls., (2021), Women’s Organisations Oppose the Police, Crime, Sentencing and Courts Bill, [online], Available at: https://www.endviolenceagainstwomen.org.uk/womens-organisations-oppose-police-crime-sentencing-and-courts-bill/, Accessed: 13/08/21
End Violence Against Women and Girls., Latin American Women’s Rights Service., Rights of Women., Southall Black Sisters., (2021), Briefing on the Police, Crime, Sentencing and Courts Bill, House of Commons Committee Stage, [online], Available at: https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/Joint-briefing-on-the-PCSC-Bill-for-Committee-Stage-HoC-May-2021-final.pdf, Accessed: 13/08/21
Friends of the Earth., (2021), Open letter to the Home Secretary and Secretary of State for Justice, [online], Available at: https://friendsoftheearth.uk/system-change/open-letter-home-secretary-and-secretary-state-justice, Accessed: 13/08/21
Gebrekeidan. S., (2020), For Autocrats, and Others, Coronavirus Is a Chance to Grab Even More Power, New York Times, [online], Available at: https://www.nytimes.com/2020/03/30/world/europe/coronavirus-governments-power.html, Accessed: 15/08/21
Good Law Project., (2021), Police, Crime, Sentencing and Courts Bill 2021 (“PCSC Bill”) – Briefing for MPs, [online], Available at: https://goodlawproject.org/news/pcsc-bill-briefing-for-mps/, Accessed: 15/08/21
Griffin. J., (2021), UK introducing three laws that threaten human rights, says UN expert, The Guardian, [online], Available at: https://www.theguardian.com/law/2021/jun/24/uk-introducing-three-laws-that-threaten-human-rights-says-un-expert, Accessed: 14/08/21
Home Office., (2021), Policy paper, Police, Crime, Sentencing and Courts Bill 2021: protest powers factsheet, [online], Available at: https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet, Accessed: 13/08/21
Law Commission., (2015), Simplification of Criminal Law: Public Nuisance and Outraging Public Decency, Law Com No 358, [online], Available at:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/438194/50076_Law_Commission_HC_213_bookmark.pdf, Accessed: 16/08/21
Liberty., (2021), LIBERTY’S BRIEFING ON THE POLICE, CRIME, SENTENCING AND COURTS BILL FOR REPORT STAGE IN THE HOUSE OF COMMONS, [online], Available at: https://www.libertyhumanrights.org.uk/wp-content/uploads/2020/04/Libertys-briefing-on-the-Police-Crime-Sentencing-and-Courts-Bill-Report-Stage-HoC-July-2021.pdf, Accessed: 10/08/21
OHCHR., (2021a), United Kingdom: UN experts condemn “reprehensible” racism report, United Nations Human Rights Office of the High Commissioner, [online], Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27005&LangID=E, Accessed: 13/08/21
Rights of Women., (2021), Experts in family justice and violence against women urge action and accountability for the Family Court’s failure to protect victims of domestic abuse, [online], Available at: https://rightsofwomen.org.uk/news/experts-in-family-justice-and-violence-against-women-urge-action-and-accountability-for-the-family-courts-failure-to-protect-victims-of-domestic-abuse/, Accessed: 16/08/21
Russel-Moyle. L., (2021), Police, Crime, Sentencing and Courts Bill Volume 691: debated on Monday 15 March 2021, Hansard, UK Parliament, [online], Available at: https://hansard.parliament.uk/commons/2021-03-15/debates/3F59B66E-E7A1-484B-86E3-E78E71D0FE0F/PoliceCrimeSentencingAndCourtsBill, Accessed: 16/08/21
Siddique. H., (2021), Curbs on protests in policing bill breach human rights laws, MPs and peers say, The Guardian, [online], Available at: https://www.theguardian.com/uk-news/2021/jun/22/curbs-on-protests-in-policing-bill-breach-human-rights-laws-mps-and-peers-say, Accessed: 15/08/21
The Economist., (2021), An illiberal bill to suppress protest in Britain, [online], Available at: https://www.economist.com/leaders/2021/03/18/an-illiberal-bill-to-suppress-protest-in-britain, Accessed: 15/08/21
UK Parliament., (2021), Policing and Prevention of Violence against Women, Volume 691: debated on Monday 15 March 2021, Hansard, [online], Available at: https://hansard.parliament.uk/Commons/2021-03-15/debates/15A845C7-D1BA-4DE4-BA6A-131AC6062616/PolicingAndPreventionOfViolenceAgainstWomen, Accessed 13/08/21
UK Parliament., (2021b), Session 2021-22 Police, Crime, Sentencing and Courts Bill, Publications and Records, [online], Available at: https://publications.parliament.uk/pa/cm5802/cmpublic/PoliceCrimeSentencing/memo/PCSCB05.htm, Accessed: 13/08/21
UK Parliament., (2021c), Government plans to change law to restrict demonstrations breach human right to protest, says JCHR, Human Rights (Joint Committee), [online], Available at: https://committees.parliament.uk/committee/93/human-rights-joint-committee/news/156037/government-plans-to-change-law-to-restrict-demonstrations-breach-human-right-to-protest-says-jchr/, Accessed: 15/08/21
[1] For further details of these recommendations see the following:
By Catherine Greenacre,The European Institute for International Law and International Relations.
