Richard Gibbs is a barrister practising in criminal and regulatory law. He is a published author and also a visiting lecturer in law and criminal justice matters.
It is hardly a surprise that the Police, Crime, Sentencing and Courts Bill has come in for criticism; any flagship piece of government legislation which stems from a manifesto pledge and which enjoys no support from the Opposition is always going to come in for flak.
Of course, we know that there has also been a degree of hijacking of legitimate opposition to the Bill by those who have chosen to express their views by torching police vans, attacking police property and doing so under the title of “#Kill the Bill.”
In my practice as a barrister, I spend a lot of time looking at legislation and how it is applied, enforced and interpreted, and it is usually the case that reasonable people can disagree about what certain provisions may or may not mean in practice. However, what is noticeable about this particular Bill is not the fact of criticism, that is predictable, but rather the nature of it and the way in which it is expressed. Reason appears to have taken a backseat to rhetoric.
To be clear, this Bill is certainly not perfect – perhaps no Bill ever is – and there are some real concerns about the repeated use of overly broad definitions and vague terminology, especially in Part 3 which addresses public order. But the headline criticisms which many commentators have thrown at it are simply wrong. More than that, they are wrong both in fact and in effect.
Given that the Bill runs to just under 300 pages, it is a considerable tome of proposed legislation. For anyone who wants to embark on a rational analysis of the Bill, the arrival of a thumping great wedge of proposed new law of this size is perhaps a little off-putting and maybe that is one explanation as to why so much of the criticism seems rooted in grandiose rhetoric rather than granular analysis. The effect of that is that the critiques being mounted tend to feel overblown and lose sight of the issues of detail which are actually more important.
As an example, when the Bill had its second reading in the Commons, it was criticised by one Labour MP as being “the tip of an authoritarian iceberg” – one that he went on to characterise as being “on a collision course with public defiance.” Apparently elements of the Bill “would make a dictator blush”. Well that’s all very eye catching and no doubt it plays well to those predisposed to view any Conservative legislation aimed at criminal justice issues as being draconian. But what does it actually mean and what does this criticism amount to?
The reality is that most criticism has been animated by the belief that the rights of protesters are being unduly restricted. This is depicted as an inalienable right that the Bill is seeking to remove. Let’s be clear however, the right to protest and our right to express ourselves is not – and never has been – absolute.
There have always been limitations which the state has placed upon us when it has come to those rights and as society has evolved, become more complex and the issues which affect public order have shifted and altered, the state has been required to adapt too. Our right to protest has never been absolute but it has never been absolutely removed either and this Bill does not change that. To listen to the critics, it would appear that the right to protest is being removed, or largely removed but that is quite simply not the case.
Second, there is a wider and more fundamental point that the current criticism seems to completely misunderstand. That is for many members of the general public, the criminal justice system is viewed with some suspicion. As a lawyer who has worked in that system for a decade it pains me to say it, but the public perception is that our justice system too often fails to achieve justice in many cases, that our laws are not enforced as the public would like and that sentencing is opaque and, again, fails to serve the public effectively.
Issue could be taken with many of these on the basis of reality being different to perception, but that perception is there and it is real. Again, the apocalyptic terms of much of the Bill’s criticism will fall on deaf ears when this fact is considered and among the very many members of the public that take a sceptical view of our criminal justice system.
Where this Bill does need attention is in the wording. I accept that is a far less exciting task than rhetorical flourishes but it is crucial because it is in the details of that wording that the application, enforcement and adjudication of this Bill will take form.
For example the application of clauses 54-60 broadly allow the police to place restrictions on protests as a result of noise generated by those taking part. There are penalties on those breaching conditions if a defendant “ought to have known” those restrictions were in place. “Ought to have known” is a vague term, hard to define, harder to enforce and possibly impossible to effectively convict. We should not forget that the burden of proving something to the criminal standard is, rightly, a high threshold and proving someone “ought to have known” is no easy task.
It is on these often semantic sounding points that the Bill needs to be scrutinised. Those who want this Bill to become an effective piece of legislation should ignore the grandiose rhetoric deployed by those who oppose it on principle, recognise the democratic imperative in passing it and make the changes in detail needed.