Public Order Bill (Second sitting)

Kerry McCarthy Excerpts

Thursday 9th June 2022 Public Bill Committees

[Anne McLaughlin]

Q Good afternoon and thank you for coming. This rehash of the protest parts of the Police, Crime, Sentencing and Courts Bill that did not get through Parliament seems to me to be more about reacting to issues that this Government disagree with and to protesters they do not like, such as environmental protesters and Black Lives Matter protesters. Regardless of whether that is the case, this Bill affects everyone, including the one group of people whom surely no one can get upset about, and that is the WASPI campaigners—I have just remembered, I am not supposed to talk about that. We have heard about disruption to people’s lives from protests, albeit we are talking about protests that are very short-lived and last only a few hours, as Sir Peter Fahy just said. Ideally, we would all live in complete harmony with no disruption to anyone’s life, but we do not. In your view, what will cause the most severe damage, the longest term damage and the damage to the most people—racism, environmental damage, people losing their pensions, or people staging protests?

Martha Spurrier: There can be little doubt that a Government should spend time looking at the root causes of a protest, whether that is the climate crisis rather than climate protesters, or racism rather than Black Lives Matter protesters. Of course, it is not news to say that protest is a foundational right, and that it is an article of faith in any democratic country that if there is something you disagree with, you can take to the streets to make your voice heard. It is of great concern to Liberty and those of us who work in this area—I am a lawyer, and I have been working in this area for the best part of 15 years—to see provisions in a Bill that not only have been rejected by Parliament once, but significantly expand police powers, often doing so in a very over-broad and imprecise way, such that it is difficult to see how they will be effectively implemented.

We would expect a disproportionate impact on marginalised communities from the exercise of those powers. We would also expect that they will fundamentally undermine the right to protest, and will not do what they are purported to do—deal with a hard core of some supposedly extremely disruptive protesters—but will in fact have a dragnet effect of chilling people’s right to protest and free expression, and deter ordinary people from exercising their fundamental rights. There is a whole range of examples in the Bill that we could talk about where it is very difficult to see why those measures are proportionate and justified ways of dealing with the perceived problem, let alone whether there is a problem as articulated.

Olly Sprague: I echo what Martha said. For an organisation such as Amnesty, it is not a case of either/or: we do not want to balance the harm that might be caused by climate change versus the positive duty that all states have to uphold the right to freedom of assembly and association and the right to protest. You have to manage all things.

One of the things that we bring here is that we are an international human rights monitoring organisation: we look at human rights internationally, and we look at where the UK is on the standards, obligations and legal frameworks that exist. It is worrying to say that for most of the provisions in the Bill, we see a clear gap between what the international standards require of the UK and what the UK proposes here, and it is the wrong gap. The UK is on the wrong side of where it should be. I am sure we will have the opportunity to go into why we think that and the areas where we think that is the case, but that is a very worrying direction of travel, especially when in terms of its foreign, defence and security policy aspirations, the UK sees itself very much as a champion of civil society space. It sees and acknowledges the fact that the world is becoming increasingly authoritarian, and wants to do things to stop that.

As a quick example, in April this year, Lord Ahmad—a Government Minister from the Foreign, Commonwealth and Development Office—was giving his closing remarks to the 49th session of the Human Rights Council. In that, he made specific reference to a very important resolution about the need to promote and respect the rights of human rights defenders around the world. It was a resolution that was welcomed and strongly supported by the UK Government; it was a very important resolution. That resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression, so you have a bit of a disconnect here between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front. They are out of step with each other, and it is not joined up.

Stephanie Needleman: I completely agree with what Martha and Olly have said. Picking up on something that Olly said about the disconnect between what the UK is doing internationally and what we are doing domestically, there is also an internal disconnect in what we are doing domestically in the UK. The right to protest is an element of the right to freedom of expression and assembly. On the one hand, that is being championed under the Bill of Rights consultation and the Higher Education (Freedom of Speech) Bill, but on the other hand, it is being severely restricted in this Bill, so there is an internal inconsistency there as well.

[Kerry McCarthy]

Q May I ask about the serious disruption prevention orders in clause 12? As I understand it, there could be an application to the court by the authorities to prevent somebody from taking part in protests, even if they had not been convicted of something but are deemed to have been involved in disruption. I did have further details, but I did not realise I would be called so quickly; I have given the general gist of my point. Do you have a clear idea of how much would have to be proved? If you are applying for an order on the basis that someone has been involved in something but they have never been convicted of it—let us assume they have not been taken to court and acquitted of it—I guess the idea is that they would be known to the police as having been involved in previous protests. How would you see that panning out? Could they find themselves being subjected to this process just because they have been photographed at previous protests at which other people committed disruptive acts? To what extent is it a collective thing? Or would it have to be proved that an individual had done something?

“Disruption” is such a vague term. What would a person have to have done for the police to be able to go down this route? I should probably ask the Minister, because I think the answer at the moment is that we do not really know, but how do you see this panning out?

Stephanie Needleman: I cannot see if Martha and Ollie are indicating that they will answer, but I can kick off, if that is helpful.

I think you have hit the nail on the head in raising the vagueness of when these serious disruption prevention orders can be imposed. They can be imposed not necessarily on conviction, as you said. The orders can cover an incredibly broad range of circumstances. Under clause 13(2)(a)(v), all you need to prove is that on two separate occasions somebody

“caused or contributed to the carrying out by any other person”—

they do not even have to have done the act even themselves; it could be done by someone else—

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

You do not need to have carried out the

“activities related to a protest”;

you just have to have “caused or contributed” to them. Those are incredibly vague and broad terms; they could cover almost anything done to assist someone doing anything related to a protest. For example, it could be driving somebody to a protest, or to shops selling paint or glue, if the person the glue is sold to subsequently glues themselves to something.

Linked to that, there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they “caused or contributed” to the carrying out of those activities. That could capture a vast range of behaviour.

[Kerry McCarthy]

Q How do you see the provisions working? As I understand it, an application has to be made to a court for the order. Would the person who was going to be subject to this order be entitled to legal representation? Would getting the order involve proving the person’s original involvement? Would they be able to challenge the fact that they were deemed to have been involved in supporting disruption on two previous occasions? Or would the police apply for the order and have it granted in absentia?

Stephanie Needleman: It has to be proved, but it only has to be found, on the balance of probabilities—the civil standard of proof—that one of the conditions has been met. As I said, the conditions are so broad and vague that it should not be that problematic for the police to approve. So yes, involvement would have to be proved, but given the vagueness and the broadness of the conditions, it is likely that it can be easily proved.

Martha Spurrier: It is right that, for example, legal aid would not be available to someone defending themselves against having one of those orders imposed on them, and of course they can be renewed; there is a suggestion in the Bill that they could be renewed indefinitely. Once the order was in place, you would not get legal aid for a lawyer’s assistance in dislodging it.

It is worth stepping back a little and looking at the serious disruption prevention orders. These have been proposed by the Met police before, under the name of protest banning orders. The Home Office was against bringing them in, on the grounds that they were neither compatible with human rights nor an effective deterrent that would solve the problem that they purported to. That relates to a slippage in principle and language that we see across the Bill. It is important to pay attention to it, because this is law; cases will be decided on these words. Article 10 of the European convention on human rights is of course not an absolute right. It can be interfered with. There is a balance to be struck between the interests of a protester and the interests of the wider community, for example.

There are many grounds on which you can interfere with the right to protest; one of them is crime and disorder, and another is the rights of other people. You already have a human rights framework for limiting protest in certain constrained situations, but what we see in this Bill is not the language of crime, disorder, or abuse of others’ rights, but the language of disruption, inconvenience and nuisance. That is a significant, conceptual, legal change in the language. As Stephanie says, it takes you into the territory of criminalising what we have hitherto understood to be non-criminal conduct—of criminalising protest tactics that have a long history and previously would not have been considered criminal acts. People who may have participated in a couple of protests over five years may suddenly find themselves within the purview of the criminal law, although hitherto both criminal and human rights law would simply never have brought them into that space. When thinking about all these definitions and new offences, it is important to recognise that significant paradigm shift in the concept of how you go about policing protest.

Add to that the fact that these new concepts, including the idea of serious disruption, will be defined in secondary legislation. This significant interference with the fundamental right of protest may result in terms being defined by a politician who gives the definition very little parliamentary scrutiny. The measures would then be implemented by a police service that interprets them as it sees fit; we do not need to go into the times when they get it right and the times when they get it wrong. There are lots of layers to this before you even get to the detail of what happens if someone is subject to one of these orders, how they would shift it, and whether being subject to an order would mean that they could no longer protest.

Olly Sprague: My colleagues have covered everything that I wanted to say on the domestic aspect. It is worth coming back to the question: where do the international standards sit? The United Nations Human Rights Committee’s general comment from 2020 is most useful here. It allows the criminalisation of individuals taking part in a demonstration only in very specific circumstances, and it sets the threshold at incitement to violence. It sets the time limit as “as short as possible”; it talks in terms of a few hours. The international standard allows individuals to be prevented from accessing a process, but the bar is very high. The Bill sets an extraordinarily low bar. There are two levels by which these orders can be put in place. One is based on a person having two previous convictions on the civil standard burden of proof; the other is not based on conviction at all, which is even worse. The UK is so far out of step with where it should be under international standards; it is quite alarming.

[Kerry McCarthy]

I could understand it to a point if somebody’s presence at a future protest could lead to a dangerous situation, which is what you say the international comparison would be; but under the Bill, basically your right to protest could be removed for five years because you had not behaved impeccably on previous protests.

Olly Sprague: The Bill would also potentially hold you responsible for the conduct of other people at a protest that you were organising. One of the great unfortunate misconceptions of protest, especially around violence and disruptive protest, is that a protest somehow gets characterised as being inherently violent because actions of violence occurred within it. It is perfectly legitimate for law enforcement officers to deal with and prevent those violent actions and make arrests. However, you cannot characterise a whole protest as violent just because some aspect of it was violent.

With the way the serious disruption prevention orders are drafted, you could, in theory, be held responsible for an altogether peaceful protest where a violent action that was completely beyond your control took place. You cannot really be held responsible for something that you were not responsible for, if that makes sense.

[Kerry McCarthy]

Q I think the Amnesty note says that in other countries, the issue is about not being allowed to organise a protest, but this measure, as I understand it, would mean that you were not allowed to participate. It could be quite specific: you would not be allowed in a particular place at a particular time, or in a particular area when something was going on. Is that right?

Olly Sprague: We have to be careful when making international comparisons. We do not really not compare and rank countries in some kind of league table. We look at each country individually and see where it marks up. It is interesting, though, that there are not that many examples around the world of measures akin to a protest banning order.

[Kerry McCarthy]

Q You say that in Belarus anyone who has been fined is not allowed to organise a protest for another year. This measure goes way beyond that.

Olly Sprague: We have not looked at 600 different laws for the purpose of this sitting. However, where we have looked, we found corresponding powers of a similar nature in places such as Turkey, the Philippines, Belarus, Russia and Egypt, I think. In all the cases where they have a measure that is similar to a protest banning order, it has been on the organisation of protests, not the participation.

[Kerry McCarthy]

Q You would like to think that our civil liberties protections were a bit better than those in Belarus, but the ban there is only for a year, rather than five.

Olly Sprague: Yes.

[The Chair]

Q Did you wish to say something, Ms Needleman, or was I misinterpreting you?

Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.