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15 March 2021updated 30 Jul 2021 10:53am

The crackdown on the Clapham vigil shows why the policing bill is so dangerous

Giving the police discretion to shut down virtually any form of protest would be disastrous for democracy.

By Rachel Cunliffe

Did the Duchess of Cambridge break the law by visiting the Clapham Common bandstand on Saturday to lay flowers for Sarah Everard? 

That was the implication made by the Metropolitan Police commissioner, Cressida Dick, yesterday, when she defended the conduct of officers who responded to women publicly sharing their grief and outrage at Everard’s death with four arrests and a shocking degree of force. Dick said that she herself would have attended the vigil “if it had been lawful”, suggesting that all those who did turn up at Clapham Common – including Kate Middleton, who attended flanked by her own police protection officers – were breaking Covid-19 laws.  

[Hear more on the New Statesman podcast]

Clearly, no one is going to send police into Kensington Palace to arrest the duchess. But her presence has sparked a heated debate over whether the informal vigil (which materialised after the organisers cancelled the original event) had actually begun when Middleton arrived. When did it stop being individual women paying their respects and start being a gathering the Met felt they had no choice but to break up, even if it meant confronting women in a way that made social distancing impossible? At what point did visiting Clapham Common become unlawful? And how did they decide? 

This afternoon, in an ironic coincidence, MPs are debating the government’s new Police, Crime, Sentencing and Courts Bill. Drawn up in response to the Extinction Rebellion climate demonstrations that shook the UK in 2019, the bill offers sweeping new powers to the police to break up protests, including imposing noise and time limits, and tougher sentences. 

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The government has been keen to stress that this bill is not a threat to the right of “peaceful protest”. Speaking on The Andrew Marr Show on Sunday, the Home Office minister Victoria Atkins sought to allay fears that it would have any impact on events such as the Clapham vigil. “I want to draw a very firm distinction between the peaceful vigil that [Saturday’s] was and was intended to be and some of the very, very disruptive protests that we’ve seen in the last few years,” she said. 

[See also: Sarah Everard’s disappearance is a horrifying reminder that women live in fear of violence

The trouble is that “very disruptive” is a highly subjective term – almost as subjective as deciding when an unofficial vigil has become unlawful. Protests are by their very nature disruptive. That is their point. The right to protest is, in essence, the right to cause disruption and inconvenience to draw attention to a cause. Clearly there are limits – which is why existing laws already prohibit violence and property damage. The new bill, however, goes much further. It would outlaw any action that causes or could potentially cause “serious distress, serious annoyance, [or] serious inconvenience”

It is hard to think of any form of protest that would not cause anyone annoyance or inconvenience. Even the tamest of public demonstrations – the annual LGBTQ Pride parades, for example, or Reclaim the Night marches in pre-Covid times – involve road closures and noise. They also have their fair share of critics who could argue they feel “distress” at being confronted with an animated crowd shouting views they find distasteful. The bill currently being debated would in theory give them the right to shut such protests down. 

In reality, that decision would be handed over to the police. But as the footage of women being thrown to the ground by officers on Saturday demonstrated, the police are not always objective arbiters. It is striking that, while the London vigil was deemed unlawful by the Met (which just happens to be the police force of Everard’s alleged killer), a vigil in Nottingham was able to go ahead without incident.  

And while it is true that scenes of women quietly lighting candles on Clapham Common later escalated into something more combative, with placards and speeches on the bandstand, the fact that even law-and-order zealot Priti Patel has called for an independent investigation into the Met’s actions suggests widespread political consensus that the police went too far. It is hard not to conclude that the target of protesters’ anger – the Metropolitan Police themselves – might have had something to do with officers’ heavy-handed reaction. 

[See also: Who’s to blame for the violence at the Clapham Common vigil?​]

What this sorry episode tells us is that leaving it up to police to interpret what counts as unlawful behaviour leads to inconsistent and disturbing outcomes. That was true in January when Derbyshire Police wrongly fined two women for going for a walk with a coffee, and it’s true of the response to Everard’s vigil today. The sweeping and poorly defined Covid laws implemented without proper parliamentary scrutiny over the past year have given police forces across the country unprecedented powers to apply the law as they choose.  

Now, MPs are debating whether to extend those powers post-Covid by giving police discretion to shut down virtually any form of protest. The irony is that were it not for Everard’s tragic death and the police response when women attempted to make their voices heard, we probably wouldn’t be discussing this at all. Labour had little to say on the policing bill until Sunday, when the Clapham scenes finally inspired the announcement that the party would oppose it. The shadow justice secretary, David Lammy, made it clear that Labour’s change of heart was due to Everard’s death, saying now was “no time to be rushing through poorly thought-out measures to impose disproportionate controls on free expression”. 

The opposition’s intervention is welcome, but it’s worrying that Lammy seems to think such “poorly thought-out” and “disproportionate” measures would be warranted had a 33-year-old woman not recently lost her life. 

This brings us back to Kate Middleton. Her presence at Clapham Common is a manifestation of the grief and shock that has shaken the nation over the past week. Speaking out about violence against women is a cause that unites all political parties and attracts little opposition beyond the fringes of social media. It is politically expedient to call for safer streets for women, as evidenced by the fact every single party has done so. The same cannot be said of other issues that have sparked demonstrations in the past few years – from Extinction Rebellion’s climate activism and pro-EU rallies, to EDL marches and protests against lockdown.  

The thought of leaving it to individual police officers or politicians to distinguish which of these are justifiable and which are “very disruptive” and could cause “serious annoyance” is utterly incompatible with the freedom to protest.  

What the Duchess of Cambridge thinks shouldn’t matter: if your right to demonstrate is predicated on whether your cause has the approval of authorities, it isn’t a right at all.

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This article appears in the 17 Mar 2021 issue of the New Statesman, The system cannot hold