My dissertation examined the new Police Crime Sentencing Courts Bill 2021 (PCSCB) and the impact this new piece of legislation could have on the fundamental right to protest whilst it progressed through the legislative process last year. This piece took a feminist approach throughout and examined the Bill whilst considering the significance of the surrounding context and the timing.

Firstly, I began by looking into how the right to peaceful assembly was protected by both by the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA) which gave further effect to the rights and liberties under the ECHR.

I looked closely at the delicate balance to made when discussing qualified rights such as the right to protest – a qualified right is one that can be lawfully restricted where it has been prescribed by law and is necessary in a domestic society. This is usually necessary where there are competing interests that cause a clash of conflicting rights. A difficult battle occurs when attempting to balance the competing interests where fundamental rights are in conflict – my thesis focused very closely on the prevalent balance to be struck between the individual right to protest under Article 11, and the obligation on the police to secure public safety when this right is being exercised. Whilst looking at the delicate balance between these two competing interests, I focused on the current and topical examples that were happening at the time of writing – the two topical examples I chose to look at where the Sarah Everard vigil and the police management of this peaceful assembly, and the recent protests of the XR Rebellion movement.

Chapter two of my thesis exhibits a comprehensive literature review of the current public order legislation which the PSCB sought to overhaul, with particular focus on how these powers exist and how they have been applied in practice. The powers available to the police to manage peaceful assemblies and public processions were, at the time of writing, conferred by the Public Order Act 1986 (POA). This chapter sought to establish whether the current legislation already struck an effective balance between police powers to manage protests and the rights of protestors, and whether the changes proposed by the PCSCB was necessary.

Following a review of the academic commentary surrounding the POA and the subsequent Austin judgements, my thesis concluded that the powers already arguably gave too much unfettered power to the police – thus meaning that legislative change was necessary, but the change needed was to reduce the scope of these powers, and not to expand them further as proposed by the PCSCB.

The POA recognised the difference in police powers needed for managing peaceful assemblies and public processions. The distinction between the two forms of protests is one that needs to be represented by law. Stronger powers to manage moving protests are necessary as they pose a greater threat of disruption and potential violence to the police and the public at large than static protests. The application of these powers would thus be disproportionate if applied to a non-moving peaceful assembly. The scope of the powers for both static and moving protests are subjective and vague, arguably confer unnecessary powers and opportunity for the misuse of power. Legislative change should have come in the form of reducing the scope of the powers by clarifying their reach and drawing a line that is clear enough in law that all officers in the field exercising these powers are completely sure what is a reasonable use of their powers and what is not. The PCSCB does not make this change but rather takes the law in the opposite direction, by expanding the powers available to the police inadvertently, by removing the distinction between static and moving protests in law.

The research for my thesis uncovered four main problems with the proposals in the PCSCB on which I focused in chapter 3:

1. The undue broadening of police powers to manage public processions.
2. The undue broadening of police powers to manage static protests and how this in theory removes the necessary distinction between ‘assembly’ and ‘procession’.
3. The overbearing involvement of the Home Secretary and the concept of ‘serious annoyance’.
4. The timing and context surrounding the bill.

Following the conclusion of the above recognised problems, my thesis went further to explore the potential disproportionate effect this legislative change could have on women who chose to exercise their rights protest, by circling back to the example of the Sarah Everard vigil.

I concluded that the effect of not defining the legal parameters of protest and instead conferring a subjective power to police and the home secretary to decide for themselves could create confusion and inconsistency. Personal and racial bias could surface in the actions of the police as a result of this, and that the Bill was, at its core, “a threat to democratic architecture”.

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