THE right to protest is a fundamental part of any democracy. As has been graphically illustrated by the horrendous scenes in Myanmar, it is one of the first things dictatorships clamp down on.
In the last week I have had many emails from constituents concerned about the Police, Crime, Sentencing and Courts Bill which received its second reading in the House of Commons on Tuesday. Part three of the Bill contains enhanced police powers to deal with public order and wider offences and increased sentences for breaching conditions imposed on assemblies and processions by the police.
The changes to the law on the right to protest will only have force in England and Wales, but they will impact upon people living in Scotland. There is a long tradition of Scots travelling to London to protest. In my 20s I frequently endured overnight bus journeys to London to protest cuts to student support, nuclear weapons, and Section 28. More recently Scots travelled in their droves to London to protest against Brexit at huge demonstrations. As an MP I am often visited at Westminster by constituents attending parliamentary lobbies on matters such as climate change. These lobbies are often accompanied by marches and rallies outside the House of Commons which now face being severely curtailed. So, the changes in this bill will impact on the rights of people living in Scotland to protest UK Government policy at the seat of Westminster power.
Many of the emails I have received also expressed outrage at events in London last weekend, when the police broke up the protest on Clapham Common. The two issues are closely connected.
During the pandemic our civil liberties have been curtailed in a way which was previously unimaginable. Most of us have accepted this in order to protect life and public health but, along the way, injustices have occurred. Black Lives Matter protesters in London were kettled, photographed and asked to provide their names as a condition of their liberty, with no legal basis. Yet Police Scotland allowed football fans to party on the streets of Glasgow and even gave them an escort to their destination of choice.
Then, last weekend in London, police officers man-handled and detained women protesting the death of Sarah Everard as a serving policeman was charged with her murder. It is hard to imagine a more offensive misuse of police powers.
All of this has occurred because the law on protest in a pandemic is not clear. Although the regulations governing level 4 lockdowns in Scotland and England don’t permit gatherings, you are allowed to leave your home with a reasonable excuse and the list of examples is not exhaustive so doing so to protest could potentially be a reasonable excuse in law.
READ MORE: What is the Police, Crime, Sentencing and Courts Bill?
In England the Court of Appeal has held that under section 3 of the Human Rights Act, the lockdown regulations must be interpreted in a way that is compatible with the rights contained in the European Convention on Human Rights (ECHR), including Articles 10 and 11 which govern freedom of expression and freedom of assembly.
This means that because the regulations do not expressly prohibit all protest, the courts and all public authorities should read them in such a way as to permit protest where it would be unnecessary or disproportionate not to. However, that is not how the authorities interpret the regulations so people have the impression they cannot protest at all.
On Wednesday police broke up a socially distanced peaceful picket of workers involved in an industrial dispute in Edinburgh with threats of fines and further “punishment” for anyone orchestrating the dispute. Unite Scotland have expressed concern claiming that they had conformed to all the statutory requirements with regard to the pandemic and informed the police in advance. The union has taken the matter up with the Justice Secretary,
IN England, at the end of last year, after legal action, a new exception was introduced to their coronavirus regulations to give specific protection for picketing as long as the organiser takes required precautions. It may be that something similar is required in Scotland. But still on neither side of the Border is there specific protection for other forms of protest.
The Joint Committee on Human Rights at Westminster has looked at this problem and we have recommended regulations to clarify the right to safe protest during the pandemic.
It’s one thing to have a lack of clarity in temporary laws during an emergency, but the provisions in the UK Government’s Bill to curtail the right to protest beyond the pandemic are more serious because they will be permanent.
To take just two examples, the bill affords hugely expanded powers to the police in England and Wales to stop protests which would cause “serious unease”, and creates criminal penalties for people causing “serious annoyance”. But causing annoyance is part of our freedom of speech. If you can prevent a protest for being annoying, you can prevent any protest.
All movements for change involve an element of peaceful protest. Think of the suffragettes. I am sure many of us did when we saw the photos from Clapham Common last Saturday. If women cannot speak up to protest their rights, what is our society coming to?
Yes, the Extinction Rebellion protests in 2019 may have been very annoying to people going about their business on London’s streets and public transport – I know because I got caught up in them. But these activists were protesting the biggest problem of our age – climate change. I think that gives them the right to be a bit annoying.
During the pandemic we have seen what can happen when the law governing our right to protest is unclear. The same problems will occur if the margin of discretion granted to the police and the Home Secretary is left as wide as it is in this Bill.
Parliamentarians, whether of the left or the right, should never be in the business of giving governments and police forces powers to stifle dissent particularly where there is a risk that they will be used against those whose beliefs make the Government and the establishment of the day uncomfortable.
As the Policing Bill continues through the Westminster parliament SNP MPs will work cross-party to attempt to ameliorate the parts which threaten civil liberties.
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Callum Baird, Editor of The National
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