1/22 Some thoughts on how the #PoliceCrimeSentencingCourtsBill falls far short of international standards on the right of #PeacefulAssembly – especially the UN Human Rights Committee's recently adopted #GeneralComment37 on #Article21 ICCPR
ohchr.org/EN/HRBodies/CC…
2/22 “States must promote an enabling environment for the exercise of the right of #peacefulassembly without discrimination, and put in place a legal and institutional framework within which the right can be exercised effectively” (#GeneralComment37, para 24) …
3/22 The #PolicingBill fundamentally undermines an effective right of peaceful assembly by failing to recognize that assemblies “are a legitimate use of public and other spaces” which “may entail by their very nature a certain level of disruption to ordinary life” (GC37, para 47)
4/22 The role of State authorities is to “respect and ensure”, and to “facilitate” and “protect” peaceful protest (GC37, paras 21-24). In contrast, the Home Office Policy Paper refers repeatedly to the ‘management’ of protest (a term akin to ‘control’)
gov.uk/government/pub…
5/22 The Bill sets a vanishingly low threshold for regulation where a procession, assembly or single-person protest generates noise that causes “serious UNEASE” (cl.54(3), cl.55(5) & cl.60(6)) …
6/22 … It is the very essence of the #RightToProtest that it remains capable of causing “unease”. On this point, #GeneralComment37 categorically states that restrictions must not “impair the essence of the right” (para 36)
7/22 By focusing on the noise generated by protests, the #PolicingBill also undermines the #SightAndSOUND principle – i.e. that those exercising the right of #peacefulassembly should be able (both visibly & audibly) to reach their target audience (GC37 paras 22, 26, 53 & 57)
8/22 The #SightAndSound principle is further imperilled by the provisions in the #PolicingBill (cl.57) that seek to expand the Controlled Area around the Palace of Westminster
9/22 The Bill provides for #RegulationByAnalogy through the envisaged power of the Home Secretary to make regulations on the meaning of “serious disruption” & to include in these regulations examples of what is or is not “serious disruption” (cl.54(4), cl.55(6) & cl.60(16)) …
10/22 But relying on ‘examples’ invites generalization and a blanket approach to regulation. #GeneralComment37 emphasizes that blanket regulation is "presumptively disproportionate" & that ‘restrictions "should be based on a differentiated or individualized assessment" (para 38)
11/22 Such #RegulationByAnalogy may be designed to provide the police with a workaround to the High Court ruling in Jones & Ors v MPC (that separate XR protests could not be regulated as a single ‘public assembly’) bailii.org/ew/cases/EWHC/…
12/22 The Home Office paper argues that such regs are to “enable the police to make use of their powers with the confidence that they are doing so legally.” There’s no mention of the State’s “negative duty” to protect assemblies from “unwarranted interference” (GC37, para 23)
13/22 The #PolicingBill increases the penalties that can be imposed for breaching conditions imposed on an assembly: from a previous max Level 3 fine (£1000) to a new max Level 4 fine (£2500); and from a previous max term of imprisonment of 3 months to a new max of 51 weeks ...
14/22 …The #PolicingBill also lowers the threshold of liability to enable the imposition of penalties where protesters “ought to know that a condition has been imposed.” This criminalizes inadvertent breaches by assembly participants who may be entirely unaware of any conditions
15/22 The #PolicingBill (cl.59) abolishes the common law offence of public nuisance, but places it on a statutory footing whereby it can be occasioned by any act or omission causing serious harm including (any) ‘damage to property’, ‘serious annoyance’ or ‘serious inconvenience’
16/22 The increase in penalties, lowering of the liability threshold & breadth of the new nuisance offence fly in the face of #GeneralComment37 which states that restrictions must not “be aimed at discouraging participation in assemblies or causing a chilling effect” (para 36)
17/22 #GeneralComment37 further requires that “the imposition of any restrictions should be guided by the objective of facilitating the right [of peaceful assembly], rather than seeking unnecessary and disproportionate limitations on it” (para 36)
18/22 The policing of the #SarahEverardVigil (as also confirmed by Cressida Dick’s interview) acutely demonstrated that the primary focus of the police remains on the ‘lawfulness’ of protest rather than its ‘peacefulness’ theguardian.com/uk-news/2021/m…
19/22 #GeneralComment37 emphasizes that “if the conduct of participants in an assembly is peaceful, the fact that certain domestic legal requirements … have not been met …does not, on its own, place the participants outside the scope of the protection of article 21” (para 16)
20/22 Indeed, #GeneralComment37 expressly recognizes that “collective civil disobedience or direct action campaigns can be covered by article 21, provided that they are non-violent” (#GeneralComment37, para 16)
21/22 As we witness attacks on the #rightofpeacefulassembly around the world, Parliament should reflect on the admonition in #GeneralComment37 that “failure to respect and ensure the right of peaceful assembly is typically a marker of repression” (para 2)
22/22 See further the excellent commentary and analysis by my UEA colleague @SeethingMead and by @Netpol @libertyhq @GoodLawProject @IanDunt and @AdamWagner1 For background to the Bill itself, see the @commonslibrary Briefing paper researchbriefings.files.parliament.uk/documents/CBP-…
To clarify: The Bill quadruples the max term of imprisonment for ORGANISERS of an assembly or procession in E&W (but the max fine for organisers remains at Level 4 as it presently is) - cl.56(6) & cl. 56(11) of the Bill, amending s.12(8) & s.14(8) Public Order Act 1986
The proposed max penalty for PARTICIPANTS in an assembly or procession in E&W who breach a condition is raised to a Level 4 fine (£2,500) whereas this is presently a max Level 3 fine (£1,000) - cl.56(6) & cl. 56(11) of the Bill, amending s.12(9) & s.14(9) Public Order Act 1986
The proposed max penalty for INCITING a participant in an assembly or procession in E&W to breach a condition is raised from 3 months imprisonment to 51 weeks (& the max fine remains at Level 4) - cl.56(6) & cl. 56(11) of the Bill, amending s.12(10) & s.14(10) Public Order Act
cl.60 of the Bill seeks to introduce a max penalty of a Level 4 fine (£2,500) for EITHER organising OR carrying on a ONE-PERSON PROTEST in breach of a condition (see, proposed s.14ZA(12) Public Order Act 1986) ...
cl.60 also seeks to introduce a more hefty max penalty of 51 weeks imprisonment or Level 4 fine for INCITING ANOTHER to organise or carry on a ONE-PERSON PROTEST in breach of a condition (proposed s.14ZA(13) Public Order Act 1986)

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