New restrictions on protest will return to haunt the Government, writes Alex McBride
History Painting, 1993-1994 by John Bartlett — The Poll Tax Riots
The “Kill the Bill” protest in Bristol on the night of Sunday, 21 March, started as a sit-down demo outside Nelson Street police station. It descended into full-blown disorder and violence, with police vans set alight. The sit down was in response to the Police, Crime and Sentencing Bill, which puts new restrictions on the right to peaceful protest.
The events in Bristol took me back to March 1990 and the last time I attended an impromptu sit down. I was east of the Cenotaph when thousands of us plopped down on our backsides and refused to move. Half an hour passed. The police, helmets poking over their riot shields, kept their distance. Stalemate. Tedium. “It’s going to peter out,” I said, ever the clairvoyant. So we went for dim sum and missed everything: the violence, the windows getting smashed, the cars being burned, the mounted police charging protesters.
Two hours earlier in Kennington Park there had been a celebratory mood. In 1990, years before Glastonbury Festival gave protests their current dressing-up-box look, people came as they were. The poll tax protest remains the most diverse, wide cast of British society I have ever seen at a demo. I’ve been to a few: Save the GLC, Stop the War, Bollocks to Brexit. None, even the ones that were better attended, reflected society as democratically. There were families with pushchairs, black, white, rich, poor, and of course all hues of local youth, including me. It wasn’t only revulsion at a hated tax but at Margaret Thatcher – her ceaseless government and what it represented. She’d been there eleven years and still had a majority of over 100.
In the aftermath, looking down Whitehall, sorry and relieved to have missed out on the aggro, it felt like a fin de régime moment. It wasn’t, not quite. Thatcher and her poll tax were jettisoned, but the Tories reinvented themselves and death marched on long enough for John Major to tryst with Edwina Currie and privatise British Rail. My American uncle, (Ivy League, US Airforce, CIA) a reactionary law and order patriot, saw it on CBS’s nightly news and was appalled. It wasn’t the rioters burning cars or breaking windows that horrified him, but the police charging protesters down on horseback. It’s not the protest that matters, but the reaction.
Now with the Police, Crime and Sentencing Bill passing its second reading with a majority of 96, it’s time to look at our current late stage, reinvented Conservative government’s legislative reaction to public protest. It’s trying to stop demonstrations before they start. The stakes have been raised by movements like Extinction Rebellion and Black Lives Matter, who have causes – environmental collapse and racial injustice – far more important than the repeal of the poll tax. Let’s not forget the anti-lockdown protesters, too.
Priti Patel, the Home Secretary, has already started the traditional demonising of group protest and attempted to drive a wedge between these movements and the law abiding. She describes Extinction Rebellion as “so-called eco-crusaders turned criminals” whose direct actions were “a shameful attack on our way of life, our economy and the livelihoods of the hard-working majority.” It’s worth remembering that this is the same Patel who co-authored a book which describes British workers as “the worst idlers in the world.” The violence in Bristol, fuelled by a stupid minority, has done the Home Secretary’s work for her and distracted attention away from the bill. This is a pity because it’s a dangerous piece of legislation.
The Police, Courts and Sentencing Bill’s principle change is to give the police significant new powers to curb the right to peaceful protest. I say new powers because the police already have the power to stop a protest if they think it is necessary to maintain order. Section 12 of the Public Order Act 1986 permits a senior police officer to impose restrictions on a demonstration if it risks “serious public disorder, serious damage to property or serious disruption to the life of the community.”
The bill goes much further by directly targeting the essential elements of protest: noise and presence. Under Section 54 of the bill the police can use noise as a reason to close down a protest if that noise “may result in serious disruption to the activities of an organisation.” Any organisation will do, but I suspect the one they really care about is the Palace of Westminster. Unsightly and embarrassing Parliament Square demos can be turned off at will. All the law requires is that one person of “reasonable firmness”, the average every person in the street, is caused, or might be caused, “serious unease, alarm or distress.”
Words in statutes matter. This bill is drafted to give them the loosest interpretation. What amounts to serious unease? I feel serious unease several times a week, I feel it when I am doing my taxes, I felt it when I sat down to write this piece. And, what about serious disruption, how is that meant to be defined? The bill doesn’t have anything to say and leaves it entirely for the Home Secretary to decide.
The bill is oppressive in other ways.
The quality of a bill can be judged by its dumbest clause. There are some proper contenders, but nothing in this bill is as snarling and fatuous as the ten year maximum sentence, up from three months, for damaging a statue. As the Bristol protestors chanted, “10 years for statues, five years for rape.”
Assemblies and processions as a matter of logic require more than one person. Section 60 sweeps this away by giving the police the power to even shut down a one-person protest. It should be called the Steve Bray clause, the man who spent years outside parliament shouting, “Stop Brexit Now!” The Government clearly had him in mind when they drafted it. Extinction Rebellion have also floated the idea of one-person protests. Micro targeting like this smacks of a paranoid and brittle government, rather than a confident one at ease with itself.
Even potentially sensible things in this bill get spoiled by the unpleasant authoritarianism which keeps seeping out. Take Section 59 which codifies common law public nuisance into statute; on the face of it this should be a good idea, but the Government can’t help tacking on an attention-seeking maximum sentence. The proposed ten year maximum is less than the current common law maximum of life imprisonment, but it will likely lead to longer not shorter sentences. A case involving Extinction Rebellion illustrates why.
In 2017, activists blocked and occupied lorries which supplied a fracking site near Blackpool, managing to stop them for three days. They were clearly guilty of public nuisance. The trial judge passed custodial sentences of between fifteen and sixteen months. When the Court of Appeal came to review these sentences it did not look at the theoretical common law maximum, but at decided cases. In common law, non-violent crimes in peaceful protests should not attract a high level of culpability. The court substituted non-custodial sentences. By contrast, a maximum of ten years set by parliament sends a message that it wishes courts to punish such offences with substantial prison sentences.
The quality of a bill can be judged by its dumbest clause. There are some proper contenders, but nothing in this bill is as snarling and fatuous as the ten year maximum sentence, up from three months, for damaging a statue. As the Bristol protesters chanted, “ten years for statues, five years for rape.” Okay, it’s a maximum, but can anyone tell us what sort of statue abuse gets you even close to that? Do you get more for a Victorian general or an Edwardian general? What about their horses? We are a nation of animal lovers. What about figurative statues? What about Oscar Wilde?
Bill or no bill, it’s clear that a wave of protests is coming. We have a tired government facing massive economic challenges. It might look impregnable but it isn’t, and it knows it isn’t. The attempt to close protests down before they’ve started is not only anti-democratic but self-defeating. The police don’t want these extra powers. They are near impossible to enforce and when it goes wrong they get blamed. The Government can demonise some protesters trying to exercise their rights but not all of them. Just look at the hullabaloo when the police dragged away women at the Sarah Everard vigil. Ironically, it’s this smallscale, improvised event which calls back to my old uncle who knew that it is the reaction, not the protest, that really matters. Boris Johnson’s government wants to get theirs in early. It’s going to haunt them.
Alex McBride is a writer and criminal barrister. He is the author of “Defending the Guilty” and co-creator of the BBC2 comedy of the same name. He also writes for BBC1 crime drama, “The Mallorca Files”