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Written Evidence from Michèle Sedgwick (PCS0105)

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Written Evidence from Michèle Sedgwick (PCS0105) Written evidence from Michèle Sedgwick (PCS0105) Introduction to submission in relation to the Police Crime Sentencing and Courts Bill 1. Trained in employment and trade union law, and now a retired solicitor,1 I write to express concern about the proposed restrictions on freedom of expression (“FoE”) in the above Bill (“the Bill”). Historical Background 2. By way of introduction to the tensions the Bill engenders, I draw to the Committee’s attention the following, from an article published in 1938. The date of publication of is salient for two reasons, which I set out below. “Without the right of assembly, guarantees of free speech are empty gestures; for if no public forum is available, the right to speak freely is of little value. Nevertheless, the right of assembly is subjected to varied restrictions both in England and America. Some have evolved from judicial interpretation of “the” common law; others are crystallized in statutes. These restrictions have generally been made in the name of public order. They seek to avoid disturbance by punishing conduct which, it is thought, if allowed to continue, might endanger the public piece. The purpose is worthy. Its execution is fraught with danger in civil liberty. Since there can be no objective standard for determining whether any particular conduct, if unchecked, will cause a breach of the peace, the initial judgment will be made by a policeman. Even if the charges he prefers are dismissed, the decision will have come too late; speech will have been prevented. Because such restrictions in the name of public order provide the law- enforcement agencies with broad discretion, they offer convenient legal weapons for curbing the activities of unpopular minorities...” 2 A. Civil liberties 3. First, it pre-dates the European Convention on Human Rights (“ECHR”) drafted after World War II, to which the United Kingdom was a key signatory. Articles 9, 10 and 113 provide a ‘code’ to protect freedom of expression, that right, in my view, being essential to the manifestation of all rights, to which I shall return. 1 As an UNISON lawyer, I drafted that union’s submissions on Rights Brought Home, the White Paper on the policy behind the Human Rights Bill. The Human Rights Act 1998, enacting as domestic law the provisions of ECHR, came into force in 2000. 2 Public Order and the Right of Assembly in England and the Unites States: A Comparative Study The Yale Law Journal, Vol.47, No.3 (Jan. 1938) p 404 3 A9, Freedom of thought, conscience and religion; A10, freedom of expression; A11, freedom of assembly and association. 4. There exists a much longer tradition of liberty in the U.K, however. Indeed, in his analysis of Brexit, Jochen Buchsteiner noted the compelling notion of the ‘free-born Englishman’ 4 B. Law relating to public order 5. It is the tension between popular protest and abuse of power that government must reconcile. The law affords a mechanism to manage disorderly conduct. In addition to prosecutions at common law, Parliament has enacted a range of measures to empower the police to do so. By way of background, I set out some provisions relating to disorderly conduct. 6. Public Order Act 1986 (“the Act”) In the early 1980’s, after the Scarman Inquiry into the Brixton Disorder of April 1981 and noting its findings, and those of other reviews including a Green Paper, the Law Commission conducted a comprehensive review of public order offences under the common law, as well as s.5 of the 1936 Act 5. In due course, on enacting the Act, Parliament repealed and put on a statutory footing a number of offences, including: a. riot (s.1) b. affray (s.2) c. violent disorder (s.3) d. fear of provocation of violence by threatening words or behaviour (s.4) e. harassment, alarm or distress (s.5) 7. The last of the above merits close attention. Sub-section 1 provides: “A person is guilty of an offence if he— (a)uses threatening [or abusive] words or behaviour, or disorderly behaviour, … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. “ 8. In addition, the following offences were enacted during the last thirty years of the last century. (a) obstruction of the highway (s.137 Highways Act 1980) (b) obstruction of a police constable in the exercise of his duty, or resist him during such (s.89 Police Act 1996); (c) criminal damage (s.1 Criminal Damage Act 1971). 4. 4Die Flucht der Briten aus der Europäischen Utopie Buchsteiner, J. ,2018, Rowohlt Similarly, English historians of dissent have noted assertions of liberty. including of an ‘ancient constitution’ pre-dating Magna Carta. In addition to a Chartist’s invocation of long-standing freedoms,4 Edward Vallance cites then Prime Minister Gordon Brown’s evocation of British values of tolerance, liberty and fair play, and a ‘golden thread’ running through British history - the struggle against tyranny and arbitrary power (A Radical History of Britain, Vallance, E. 2009, Little, Brown.) Examining protests of the eighteenth century, Edward Thompson noted: “The British people were noted throughout Europe for their turbulence, and the people of London astonished foreign visitors by their lack of deference.”” 5 Criminal Law Offences Relating to Public Order, Law Com. No.123. Ordered by the House of Commons to be printed on 24 October 1983. 2 9. Also, at common law offence a police officer has power to arrest and detain a person to prevent an imminent breach of the peace. The Bill 10. From the above sketch of public order offences, I make three points. First, I respectfully submit that the above public order measures provide an adequate and appropriate framework in which to locate and prosecute disorderly conduct. Secondly, criminal damage is already a serious offence. Thus, a mechanism damage already exists to prosecute with severe sanction damage to memorials, thereby calling into question the necessity of the proposed mode of trial under clause 46. 11. Thirdly, specific clauses of the Bill have the potential to criminalise legitimate protest: (a) In reducing the knowledge or mental element, the bar for prosecutions of certain public order offences in the Act would be lowered c.56 (b) classify peaceful protest,6, as public nuisance: c. 59, c. 60 12. Specifically, broad tests are proposed under clause 59 in relation to: (a) ““…any act or omissions …that obstructs them in the exercise of rights belonging to the public.” (c. 59, (1) (b) (ii); and (c) “an act or omission cause serious harm to a person if, as a result, the person. suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity...” (c.59 (2) (c)) Proportionality and Police Powers 13. Being vaguely defined and open to interpretation, such provisions would give police officers a broad discretion. This would pose a twofold risk: of arbitrary arrest; and disproportionate impact upon certain demographic groups, for example women assembling against violence against women and girls. 14. In her foreword to HM Inspectorate of Constabulary’s report7 Wendy Williams suggested: “Without a proper explanation, members of the public may see the disproportionate use of powers as a sign of discrimination, and so police legitimacy may be undermined.” 15. Her Majesty’s Inspector urges police forces to consider the exercise of their powers. 6 Potentially such nuisance could encompass song in circumstances where there exists a long tradition of protest songs in the U.K.. For example, Gareth Malone, directed me and other members of the LSO Community Choir to his arrangement of The Diggers’ Song, written by Gerrard Winstanley in 1649. 7 In relation to police use of control and restraint on arrest, Black people were 5.7 times more likely to have force used on them than white people. Disproportionate use of police powers A spotlight on use of force and stop and search 28 February 2021 https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/disproportionate- use-of-police-powers-spotlight-on-stop-search-and-use-of-force.pdf 3 Necessity 16. While I appreciate the considerable challenges facing the police, I respectfully suggest that a number of the proposals are not necessary. Instead, training and guidance on the application to protests of the current law, so as to ensure necessary and proportionate policing, tailored to particular circumstances, would be an appropriate way forward. 17. Finally, the Bill has been presented to Parliament during a Covid-19 lockdown. Pandemic notwithstanding it is unfortunate that neither Green Paper nor White Paper was published to enable full consultation on the constitutional implications of the proposed changes in policy. The Bill’s measures would have a deterrent effect on the exercise of the right of association and participation in peaceful assembly (A10, A11). Such curtailing of FoE would quash legitimate dissent. undermining the foundations of peaceful ventilation of grievance - an essential feature of an effectively functioning democratic society, and call into question the state’s obligation to facilitate protest. 18. May I take this opportunity of thanking the Committee for inviting submissions on the Bill. 19. I confirm that I have not published this submission elsewhere. 09/05/2021 4.
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