Police, Crime, Sentencing and Courts Bill 2021: July 2021

Dear constituent,

Thank you for contacting me about the Police, Crime, Sentencing and Courts (PCSC) Bill.

I understand your concerns about the proposed new powers regarding dealing with protests in part 3 of the Bill and thank you outlining your views on this issue. Freedom of assembly and freedom of expression are vital rights that I wholeheartedly support. The right of an individual to express their opinion and protest is a cornerstone to our democratic society.

I spoke during the debate and although speeches were time limited, I was able to make a brief contribution - Richard speaks in second reading of Police, Crime, Sentencing and Courts Bill | Richard Fuller

I am very sensitive to the representations made to me about demonstrations and the right to protest. I recognise these changes are still being debated and have not yet been put into practice. I also recognise that they could prove to be unnecessary or too restrictive on the right to protest. I will continue to monitor this and the Home Affairs Select Committee will I am sure conduct a review of these measures when enacted but in the mean time I have set out below how the Bill is intended to operate.

You may find the following information helpful, Police, Crime, Sentencing and Courts Bill 2021: protest powers factsheet - GOV.UK (www.gov.uk)

The issue at hand relates to the balance between the rights of a protestor and the rights of citizens to go about their daily business. There have been examples where protests have caused unjustifiable disruption and distress to other citizens. For example, some of the scenes we saw from the Extinction Rebellion protests, where ambulances were stopped from reaching hospitals and efforts to prevent the printing of newspapers, were deeply troubling and concerning.

Therefore, the measures in the Bill are not about stopping or clamping down on right to protest but ensuring the police can better manage highly disruptive protests and maintain the balance.

It is the case that when using these powers, or existing public order powers, the police must act within the law. Importantly, the police must be able to demonstrate that their use of powers are necessary and proportionate. It is also clear that the police must act compatibly with human rights, in particular Article 10 (freedom of expression) and Article 11 (freedom of association).  

I am aware that much has been said regarding the proposed public nuisance offence. As you may be aware, Clause 59 gives effect to recommendations made by the Law Commission in their July 2015 Report on 'Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency'. The report stated that the common law offence of public nuisance should be replaced by a statutory offence covering any conduct which endangers the life, health, property or comfort of a section of the public or obstructs them in the exercise of their rights. You can find the Law Commission report on this issue at the following link - https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/06/lc358_public_nuisance.pdf

Importantly, the new statutory offence of public nuisance will cover the same conduct as the existing common law offence of public nuisance. 

The measures will not grant the police, local authorities, or any other body powers to ban protests. However, the Public Order Act 1986 already contains exceptional powers for a local authority, on an application by the Chief Constable and with the consent of the Home Secretary, to prohibit a public procession or trespassory assembly. In London, these powers are given to the Commissioner of the Metropolitan Police and the Commissioner of the City of London Police, with the consent of the Home Secretary. These powers are unchanged by this Bill.

The measures will not ban protests for being too noisy. The police will only be able to impose conditions on unjustifiably noisy protests that cause harm to others or prevent an organisation from operating. The threshold for being able to impose conditions on noisy protests will be appropriately high. Police will only use it in cases where it is deemed necessary and proportionate. For an upcoming protest, the Chief Constable of the relevant force will be responsible for making the decision of whether the threshold is likely to be met. For a protest already taking place, the most senior officer at the scene will decide if the threshold is likely to be met. Depending on the circumstances, the senior officer would typically be an Inspector, Chief Inspector, or Superintendent.

In recent years there have been examples of protesters use egregious noise not as a method of legitimately expressing themselves, but to antagonise and disrupt others from the enjoyment of their own liberties and rights. This power can only be used when the police reasonably believe that the noise from the protest may cause serious disruption to the activities of an organisation or cause a significant impact on people in the vicinity of the protest. “Impact” is defined as intimidation, harassment, serious unease, serious alarm, or serious distress with the police then having to consider whether the impact is significant.

The majority of protests in England and Wales do not cause serious disruption to the activities of an organisation or a significant impact on the people in the vicinity of the protest so will be unaffected by this legislation. This power will only limit the most extreme cases where the noise from protests is unjustifiable.

The Police, Crime, Sentencing and Courts Bill does not introduce a new power to ban protests that are annoying, as has been suggested by some. Whilst the public nuisance offence can capture behaviour that causes the public or a section of the public to suffer serious annoyance, this is consistent with the existing common law offence of public nuisance and does not connote merely feeling annoyed.

The term “annoyance” has been applied to:

  • allowing a field to be used for holding an all-night rave;
  • conspiring to switch off the floodlights at a football match so as to cause it to be abandoned; and
  • noise, dirt, fumes, noxious smells and vibrations.

The public nuisance offence is not a new offence, but an existing, centuries old, common law offence which currently has a maximum sentence of life imprisonment.

The Home Secretary will not be able to decide what constitutes serious disruption. Deciding whether to place conditions on an assembly or procession to prevent serious disruption is an operational matter for the police. In the event of a challenge, ultimately it would be for the courts to decide whether the threshold of serious disruption had been met.

Freedom of expression is a cornerstone of British democracy. The majority of protests in the England and Wales will be unaffected by these changes. These measures will balance the rights of protesters with the rights of others to go about their business unhindered. They will achieve this by enabling the police to better manage highly disruptive protests.

This is a long-awaited Bill with many measures previously announced or discussed before the Bill itself was published, most notably those within the Sentencing White Paper, published in September last year. The broader provisions of this Bill will ensure that sexual and violent offenders are kept behind bars for longer, that victims of crime are better supported, that the police have the powers to protect themselves and the public and that there is a focus on rehabilitation. Further details are set out here: Justice overhaul to better protect the public and back our police | Richard Fuller

So far as scrutiny of the Bill is concerned, this Bill followed an extensive public consultation and is going through its parliamentary stages in the usual way. It has been debated in full sittings of the House over the course of three days and has undergone many additional days of line by line scrutiny at the committee stage of the Bill and will now undergo a similar process in the House of Lords.

Thank you again for taking the time to contact me.

Yours sincerely,

richard fuller

Richard Fuller MP