If the government cares about freedom of expression, why is it passing the police and crime bill? | Kirsty Brimelow

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The timing of the police, crime, sentencing and courts bill has generated precisely what it was seeking to minimise: more protests. Police clashed with “kill the bill” protesters in Bristol for the fourth time in a fortnight this weekend, as more than 1,000 people gathered to oppose the new legislation, bringing traffic to a standstill.

Reading the contents of the 300-page bill can feel like being trapped in a 21st-century version of Animal Farm. Though the government says that everyone has equal rights, the bill reflects the subtext of this official line: only as long as citizens pipe down and do as they are told. While it says that “freedom of expression is a cornerstone of British democracy”, the bill proposes amendments giving police greater powers to restrict protests that cause “intimidation or harassment” or “serious unease, alarm or distress” to bystanders.

The point of protests is that they are unruly, noisy and a source of irritation to many. Without them, we might still have elections in which only rich white men could vote, and wealthy landowners might still curtail our rights to roam the countryside. The reason for the proposed restrictions, as the bill solemnly explains, is a recent change of protesting tactics, such as people gluing themselves to buildings and obstructing entrances. Since the large-scale Extinction Rebellion (XR) protests in April 2020, the Metropolitan police commissioner, Cressida Dick, has said she wants to change police powers to deal with protests. But there is little new about the civil disobedience methods used by XR, save perhaps for jauntier props.

The police already have the power to impose some conditions on “static” protests such as assemblies and demonstrations (they can specify where such a protest can take place, for how long, and how many people can be involved). They have greater powers to control protest marches, including prohibiting marches if they are deemed disruptive to public order. The bill proposes widening the conditions imposed on static protests to match those on march protests.

But are further police powers actually needed? A large body of criminal laws for policing protests, such as obstructing the highway or aggravated trespass, already exist. The rights to freedom of expression guaranteed by the European convention on human rights are “qualified rights” – meaning they may be interfered with to protect the rights of others or the wider public interest. This means that police must use their powers to restrict protests in a way that is proportionate, balancing issues such as public safety or the prevention of crime and disorder against people’s right to protest.

Rather than criminalising protesters, the police are supposed to work with them to use the least restrictive means of interfering with their rights. The Sarah Everard vigil on Clapham Common, for example, would have played out differently if the Metropolitan police had engaged more effectively with its organisers. Instead, police reacted forcefully against a vigil being held at all, and appeared to think that Covid emergency laws forbid all protests. Although emergency laws have undoubtedly caused confusion among police, they don’t prohibit an individual’s right to protest.

British policing is supposed to be founded on a philosophy of consent. Increasingly, this principle is being crushed under police boots. Nowhere is this more obvious than in the police, crime, sentencing and courts bill. Of course, not everything in this bill should be seen as a hand smashing down on civilians; the Law Commission has long recommended that the common law of public nuisance be replaced with a formal written statute, updating the language and making the offence clearer, for example.

But there was no public debate prior to the bill’s publication, which is a basic expectation for a piece of legislation with such far-reaching consequences. It was published just two days before the publication of another report, which analysed how effectively the police dealt with protests such as XR and Black Lives Matter, commissioned by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, the body responsible for inspecting the police force. This allowed little time for careful consideration of the latter report’s findings.

Another driver behind the bill is the cost of policing protests. The Met states that the cost of policing XR’s 2019 April protests was more than GBP16m. What these calculations overlook is the hidden expense of increasing police powers. In 2019, I defended in a trial where a police officer gave an XR protester the choice of moving away from the Intercontinental Hotel in London, where she was protesting about International Petroleum Week, which was taking place inside, or being arrested. She very politely said she would move away. The sergeant then overruled the officer, and the protester was arrested and detained in a police cell for 13 hours.

Her trial took place disjointedly, over months, in three different magistrates courts. She was acquitted in the end – but the far cheaper solution would have been to allow her to walk away quietly and peacefully, as she intended to do. Arresting peaceful protesters isn’t just undemocratic: it’s also an expensive waste of police resources. As for the disruption that protests cause to surrounding businesses, cafes certainly do a roaring trade in the midst of demonstrations. And no government can legitimately remove people’s rights in order to increase the country’s gross domestic product.

The legitimacy of government has never been founded on the silence of its people. Muted protests, curbed by growing police powers, are anathema to both democracy and freedom. If the UK is to avoid a descent into narrow nationalism and repression, it needs to strengthen human rights, not diminish them. Here, history is a lesson. Protests have been vital to achieving change. If society is to make progress on issues such as violence against women, racism, poverty and the climate crisis, we must defend the rights of peaceful protesters.

  • Kirsty Brimelow is a QC and barrister at Doughty Street Chambers

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