New powers to restrict assemblies

Because police and politicians don't have enough powers already

The Police, Crime, Sentencing and Courts Bill will be debated for the first time by MPs tomorrow; more formally, it’s the bill’s second reading, day one. This is a Ministry of Justice bill although it includes contributions from the Home Office and the Department for Transport.

I shall be publishing a preview tomorrow concentrating on the sections that I think will be of most interest to my regular readers. But in view of the appalling events at a bandstand on Clapham Common last night, I think everyone will be interested in part 3 of the bill.

According to the explanatory notes, this

includes provisions to: extend the powers to place conditions on public processions and assemblies; amend the offence relating to the breaching of conditions placed on a public procession or assembly; replace the common law offence of public nuisance with a new statutory offence; and amend the legal framework designed to prevent disruptive activities in the vicinity of the Palace of Westminster to ensure vehicular access to parliament. 

Public order law is particularly sensitive. It relies on the assumption that operational police officers are best placed to take decisions as a situation develops. There is a general understanding that protestors should be allowed to cause a measure of disruption — delay traffic, for example, and make a lot of noise — provided that the disruption is kept within reasonable limits.

The Covid pandemic has made things more difficult for the police. They have more discretion than ever before. But it’s widely understood that people wearing masks in the open air pose less risk than people without masks indoors. Those who flout those principles pose a risk to others. But senior police officers should think carefully before exposing junior colleagues to that risk.

The remainder of this piece will discuss one clause in the new bill.

At present, section 14 of the Public Order Act 1986 allows the police to impose conditions on public assemblies. it says, in part:

(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

Clause 55 of the new policing bill would amend section 14 to broaden the range of circumstances in which conditions can be imposed on a public assembly in England and Wales, allow for any type of condition to be imposed on such a public assembly, and provide the secretary of state a power to make provision about the meaning of “serious disruption to the life of the community” and “serious disruption to the activities of an organisation which are carried on in the vicinity of a public assembly”.

This is what clause 55 says:

(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.

(2) In subsection (1)—

(a) for “If” substitute “Subsection (1A) applies if”,

(b) for the “or” at the end of paragraph (a) substitute—

“(aa) in the case of an assembly in England and Wales, the noise generated by persons taking part in the assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly,

(ab) in the case of an assembly in England and Wales—

(i) the noise generated by persons taking part in the assembly may have a relevant impact on persons in the vicinity of the assembly, and

(ii) that impact may be significant, or”, and

(c) omit the words after paragraph (b).

(3) After subsection (1) insert—

“(1A) The senior police officer may give directions imposing on the persons organising or taking part in the assembly—

(a) in the case of an assembly in England and Wales, such conditions as appear to the officer necessary to prevent the disorder, damage, disruption, impact or intimidation mentioned in subsection (1);

(b) in the case of an assembly in Scotland, such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to the officer necessary to prevent the disorder, damage, disruption or intimidation mentioned in subsection (1)(a) or (b).”

(4) In subsection (2), for “subsection (1)” substitute “this section”.

(5) After subsection (2) insert—

“(2A) For the purposes of subsection (1)(ab)(i), the noise generated by persons taking part in an assembly may have a relevant impact on persons in the vicinity of the assembly if—

(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity, or

(b) it may cause such persons to suffer serious unease, alarm or distress.

(2B) In considering for the purposes of subsection (1)(ab)(ii) whether the noise generated by persons taking part in an assembly may have a significant impact on persons in the vicinity of the assembly, the senior police officer must have regard to—

(a) the likely number of persons of the kind mentioned in paragraph (a) of subsection (2A) who may experience an impact of the kind mentioned in paragraph (a) or (b) that subsection,

(b) the likely duration of that impact on such persons, and

(c) the likely intensity of that impact on such persons.”

(6) After subsection (10) insert—

“(11) The Secretary of State may by regulations make provision about the meaning for the purposes of this section of—

(a) serious disruption to the activities of an organisation which are carried on in the vicinity of a public assembly, or

(b) serious disruption to the life of the community.

(12) Regulations under subsection (11) may, in particular—

(a) define any aspect of an expression mentioned in subsection (11)(a) or (b) for the purposes of this section;

(b) give examples of cases in which a public assembly is or is not to be treated as resulting in—

(i) serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly, or

(ii) serious disruption to the life of the community.

(13) Regulations under subsection (11)—

(a) are to be made by statutory instrument;

(b) may apply only in relation to public assemblies in England and Wales;

(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.

(14) A statutory instrument containing regulations under subsection (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

Working out what this means is not easy. But some immediate thoughts spring to mind.

For the first time, the police will be able to stop demonstrators who they think are making so much noise that reasonable people will be harassed or distressed.

The home secretary will be able to decide, within limits, how much disruption to the life of the community is to be allowed.

No doubt Priti Patel will argue that it’s ok to give the police more powers if she can keep an eye on them. What could possibly go wrong?