On Wednesday 8 December, as Boris Johnson used Prime Minister’s Questions to deny reports that a Downing Street Christmas party had been held during lockdown last year, another battle over the UK government’s capacity to be held to account was playing out.
That same afternoon, at an appeal hearing in the Royal Courts of Justice, a panel of three judges ruled that the former Paralympian turned climate-change activist, James Brown, should be released on bail. In September, Brown had been sentenced to 12 months in prison at Southwark Crown Court after he superglued himself to the top of a British Airways plane and prevented it from taking off in October 2019. “What happened today is a win for the right to protest and the principle that peaceful protesters should not be sent to prison,” said his solicitor, Raj Chada from Hodge Jones and Allen.
Whatever you think of the methods Brown used to draw attention to the climate crisis, it is clear that the right to peacefully protest is under threat. If Brown’s appeal had taken place when the government’s proposed new policing legislation was in effect, there would be a “real risk” that the outcome may have been very different, Chada warned as he awaited the final judgement on sentence and conviction.
At the heart of this concern is the government’s Police, Crime, Sentencing and Courts (PCSC) Bill. Human rights groups such as Liberty have claimed since its inception that the “dangerous” legislation is a “power grab” and should be scrapped. They cite its potential to increase government control over what is defined as “serious disruption” during protests, and to criminalise the way of life of gypsy and traveller communities.
And so if the PCSC legislation is passed by parliament next year, what will it mean for the future of protest?
The bill as voted for by MPs in July could have a “chilling effect” on protest, says Jodie Beck, the policy and campaigns officer at Liberty. Under its vague proposals, police will be given the power to decide what is an acceptable level of disruptive noise during demonstrations. Provisions such as this could deter people from peacefully protesting to defend what they care about, says Beck, such as local libraries or planetary health.
The government’s recent 18 pages of amendments have only made the proposed legislation more draconian. The additions would prevent protesters from blocking major transport routes (a response to Insulate Britain’s controversial road-blockades), expand police power to stop-and-search people “without suspicion” and ban named individuals from attending protests if they had previously committed “protest-related offences”. By criminalising any protest that might interfere with the operation of key infrastructure, the bill would also prevent exactly the kind of attention-catching actions that the likes of Extinction Rebellion and Greenpeace have staged to raise the profile of the climate crisis.
It is unacceptable that the government’s response to frustration over its inadequate emissions reduction strategy “is to go hell for leather to shut down protests”, Extinction Rebellion spokesperson Zoe Blackler told the New Statesman. “We’re like boiling frogs: we’re becoming more and more accustomed to being lied to. And the policing bill is part of that.”
Activists from a range of backgrounds are continuing to take to the streets to oppose the bill. Liberty has launched a petition against it. And numerous campaign groups are pushing for peers in the House of Lords to temper the bill and throw out the proposed new amendments. Attention is now focused on 17 January 2022, when the protest-section of the bill will come under scrutiny by the Lords.
If the bill does go through, there is still some hope among campaigners that laws protecting human rights will reduce its impact, in particular through protections within the European Court of Human Rights. However, that possibility shouldn’t translate into a reliance on judges to uphold the right to protest, warns Tom Wainwright, a barrister with Garden Court Chamber who has appeared in a number of high-profile protest cases. “I think it would be unwise to rely too heavily on pushback from the courts to protect us from the appalling proposals contained within the bill.”
Wainwright believes that ultimately most of the draft offences in the bill will eventually “either be expunged from the statute book or will have their hard edges smoothed off”, since they “contravene basic principles of fairness and justice, long-held fundamental rights and civil liberties, in particular our freedom of expression.” But the road to that point is likely to be long and uncertain. “Whether they are quashed as a result of public outcry or political pressure or challenged through the courts remains to be seen, but the problem is how long that will take and the enormous damage that will be done in the meantime,” says Wainwright.
There are of course other ways for those concerned about climate change to pressure those in power. In the UK this week, Paid to Pollute campaigners are arguing in the High Court that the subsidies the government provides to the fossil fuel industry unlawfully conflict with its legal duty to reach net-zero emissions by 2050. But as Cop26 made clear, the climate fight is also inseparable from wider calls for justice – and the voices of peaceful protesters can’t afford to be silenced.
[See also: Is this the new Policing Bill in action?]