Protest has never been more necessary.
Environmental and social justice campaigners in the UK must be alert to the existential threat posed by the current Police, Crime, Sentencing and Courts Bill - with recent amendments making the proposed new law even worse than we'd all feared.
The Bill is supposed to be draconian - but the most recent House of Lords amendments are so badly drafted that they will allow for oppressive policing of protests far beyond anything admitted by Priti Patel, the home secretary.
As a practicing barrister I have been representing people in our court system for over a decade. I have direct knowledge of how the British court system actually works, and how people are treated in that system. I am also a historian of Jewish heritage and have researched and written about fascism and authoritarianism for nearly twenty years.
The thing we must bear in mind when assessing the threat posed by the Police Bill is that legislators have to get the laws right, as once they are passed there begins a constant process of individual police officers, lawyers, magistrates, judges and politicians testing out what the words of the legislation actually mean.
I have been in court and seen lawyers arguing that laws which had for decades been assumed only covered situation X actually cover an entirely different situation Y. When that happens, there is simply no use saying, “Oh, but we always thought this law was meant to cover riots, not peaceful protests.”
The judge looks at the strict wording of the law. And if behaviour is covered by that wording, then it does not matter what the law was “supposed” to do.
Now let us look at November’s amendments. They include a power to make “serious disruption prevention orders”. The first problem with these new powers is that they are being given to magistrates.
Magistrates are ordinary members of the public with less than a week’s legal training, little knowledge of the law and too often very little interest in whether the law is applied properly.
Protest has never been more necessary.
In my housing practice representing tenants at threat of losing the homes, I spend months of every year sorting out basic mistakes made by magistrates. These can be as serious as orders banning people from their home for a year – made after five or 10 minute hearings. If you can get those orders back before a qualified judge, often you can unpick the mess the magistrates made and get people back home. But not always.
Under the amended Police Bill, anyone who “contributes” to a protest is potentially liable to receiving a serious disruption prevention order. The disruption needs to be “serious”, but the Bill does not define what is meant by this term. It says only that the Home Office will get to definite “serious” at some point in the future.
On the most permissive reading of the bill, disruption is serious if it crosses a threshold of, just for example, a lone member of Extinction Rebellion standing in front of a car, if the occupants of the car are delayed by five minutes in the course of their journey to work.
If that sounds a very low threshold, then remember it won’t be politicians, or barristers like me, or even judges who decide what’s “serious”. It will be Priti Patel.
So long as someone has contributed at all to serious disruption then they can be liable to one of these orders. For example, if you think about the Sarah Everard protests earlier this year, they resulted in serious disruption - at the point when police officers attacked the crowd.
It would probably be enough, from the point of view of obtaining a serious disruption prevention order, for prosecutors to show that you posted to ten friends on Facebook that you knew about and supported the demonstration.
Undoubtedly the Duchess of Cambridge “contributed” to this very protest at the point when she laid flowers at the site: by doing so, she was publicising the events which led to the protest.
Once a serious disruption prevention order has been made, the people subject to them can be required or prohibited from doing anything. They might be required, for example, to leave their home, and reside for up to five years in another city.
In saying this, I am not being facetious: I have had housing clients who have been subject to orders made by Magistrates Courts under similar statutory provisions.
A police officer will file evidence to the court saying, “X individual is widely suspected of crime. Sadly they have never been convicted, or indeed prosecuted, of an offence. Could you please make an order banning them from London for a year.” The hearings are brief and the magistrates agree. A refusal to obey such an order can result in up to 51 weeks imprisonment.
A new criminal offence is, if the amendments are made law, to be committed whenever a person attaches themselves to “another person, to an object or to land”, where that act is capable of seriously disrupting an organisation or two or more people. No intention to cause disruption is required, neither is any actual disruption.
The key act is “attaching” yourself. Let’s take a hypothetical example. You are cycling through London using a pair of cleated cycling shoes that attach you to your bike. You see an Extinction Rebellion protest and decide to join for a while.
A police officer sees you. He believes that you might in theory use your bike to cause disruption. It doesn’t matter that you haven’t used your bike in this way, or have no intention of doing so. If your bike is “capable” of causing serious disruption, you have already committed a crime attracting up to 51 weeks imprisonment.
Yes, before anyone says it, police officers don’t have to use these powers, make arrests or forward your case for prosecution by the Crown Prosecution Service. Most police officers grasp that there is something offensive about the idea of imprisoning someone just because they joined a demonstration with a bike and wearing cycling shoes.
But when you have laws whose effects require a very large number of police officers to apply their common sense, the practical reality is that hundreds of officers don’t. Ask any black teenager living in London whether the police generally use current stop and search powers in a fair, proportionate and reasonable way.
And, as I say, the magistrates making the judicial decisions after any such arrests are a narrow cohort of our society that genuinely believe that their only role in the system is to do whatever the frontline police officer asks, however odd or unpleasant it seems.
There are many other things which were offensive about these changes – eg the extension of stop and search, so that if there was going to be a protest and people might attach themselves to objects, police would be able to search anyone in the vicinity for up to 24 hours beforehand without the officers needing to have any "suspicion" of the people they stopped.
We should be offended at the way these amendments have been introduced after the bill has nearly exhausted its discussion in the House of Commons - in a device that was plainly intended to reduce the opportunities for MPs to debate them to the barest minimum.
And remember, these amendments come on top of the existing problems with the Bill which was already far too broadly drawn.
But perhaps the most important point is that protest has never been more necessary. The climate crisis alone poses a profound threat to our survival as a species. Young people are constantly being told they have to fight for any kind of future. And now they are being told that even the mildest forms of protest can result in a prison sentence. This is manifestly unjust.
If you hear about a protest against the Police Bill join it. Because if this legislation goes through, our shared freedom to protest legally in the UK is going to be almost worthless.
David Renton is a barrister and the author of The New Authoritarians: Convergence on the Right, published by Pluto Press, London, 2019.