The Police, Crime, Sentencing and Courts Bill: a Look at the Public Order Provisions – by David Mead

Image by StockSnap from Pixabay

NOTE:

This blog was written just before the House of Lords votes on Report on Monday 17^th January 2022. All of what are referred to as the new measures or 2^nd tranche were voted down and, since they were introduced in the Lords, cannot be imposed by the Commons as the Commons has not previously agreed to them. Details of the results of the vote can be found here. There were also Government defeats on the noise provisions (see below) which will return to the Commons for possible ‘ping-pong’. Hansard transcript for the debate is here (col. 1396, at 7:22 p.m.) To that extent, the Bill in its current (19^th January) form contains far fewer restrictions on protest and activities by organised labour, with the statutory codification of public nuisance the most egregious. It seems likely that the Commons will reinstitute the noise-based provisions, and if so, that marks quite a reconfiguration.

1. INTRODUCTION

You wait years for changes to public order law to come into sight, and then two come round the corner in quick succession. Well, not two exactly. One set of proposals introduced in a Bill and then a raft of additional amendments to that Bill introduced late in the day.  The Police, Crime, Sentencing and Courts Bill is before the House of Lords, and Report Stage concluded on 17 January 2022. It was introduced into the Commons in early March 2021 by the Lord Chancellor and covers a multitude of policy areas. This is its Long Title:

The focus of this blog post is on the public order provisions in Part 3 of that PCSC Bill (link to the latest version), and how they might affect workers taking industrial action in support of jobs or conditions. This is where the second bus comes along. The original proposals in the Bill were wide. It had its 3^rd Reading in the Commons on 5^th July 2021, having passed 2^nd Reading 359:263 on 16^th March 2021. The Bill had passed to the last day of the Committee stage in the Lords before a tranche of amendments were put down by Home Office Minister Baroness Williams on 24^th November (Marshalled amendments 148-159). These were amendments in name only. In effect (and if passed) they will confer further powers on the police in excess of those already at their disposal either under the Public Order Act 1986 (POA), or the planned extensions in the first wave of the current Bill or their more general powers. A valuable commentary on the latest tranche is by Richard Martin here and an extended version here, alongside this from Liberty.

2. THE CURRENT PUBLIC ORDER FRAMEWORK

It might be helpful to outline the key provisions of the existing 1986 Act. They can be viewed as two sets of pairs. On one hand, ss.12 and 14 cover conditions on marches and assemblies and ss.13 and 14A provide more limited powers to ban. On the other, ss.12-13 cover marches and ss.14-14A cover assemblies

1. Section 11 requires organisers to give six days’ notice of planned public processions that are intended to: demonstrate support for or opposition to the views or actions of any person or body; to publicise a cause or campaign; or to mark or commemorate an event. If it is not reasonably practicable to give six days’ notice, then whatever notice is reasonably practicable must be given. This of course might be none or very little. No notice is required for marches customarily or commonly held in the area – such as the Burston strike rally on the first Sunday of September. Organisers who fail to give proper notice or where the route etc departs commit an offence unless they didn’t know of the failure or didn’t suspect and had no reason to suspect.
2. Sections 12 and 14 allow the police to impose conditions on marches (public processions) and public assemblies of two or more if the police (which can include the most senior officer on the scene) reasonably believe the march/assembly may result in one of serious public disorder, serious damage to property or serious disruption to the life of the community; or reasonably believes the march/assembly organiser has an intimidatory purpose. Currently the only difference between marches and assemblies is that the power to impose conditions is – for marches – limited only by a requirement of necessity (to prevent the, say, serious disruption) whereas for assemblies the only conditions that can be imposed relate to place, number or duration. In short, placards or whistles could be subject to a conditions-requirement on a union march but once it stops and becomes an assembly or rally, they cannot. Organisers and those who participate knowingly in breach of conditions commit an offence unless they can prove that the failure to comply arose from circumstances beyond their control.
3. Sections 13 and 14A (the latter introduced in 1994) allow the Chief Constable/ Commissioner to apply to their local council for a banning order, banning all not just some or the supposedly ‘problematic’. Here, there is quite a difference in approach. For marches, she shall apply for a ban (that might last up to three months) if she reasonably believes that the imposition of conditions under s.12 will be insufficient to prevent serious public disorder – and only this, not the other two. Similar offences are created for those who organise or participate as for the imposition of conditions. The (relatively) new scheme in s.14A allows for bans of assemblies but only those, broadly speaking, that constitute trespass. Here, the Chief Constable/Commissioner must reasonably believe three things:
   • that at an assembly of twenty or more is intended to be held in open air on land to which the public has no or only limited access;
   • that assembly is likely to be held either without permission or so as to exceed permission/the public’s limited right of access; and
   • it may result in serious disruption to the life of the community or significant damage to land, buildings or monuments of historical, architectural, archaeological or scientific importance. A ban, if granted, lasts for up to four days and can span up to five miles. Again, the power is buttressed by the creation of offences.

Alongside these, the police have powers at common law to prevent breaches of the peace, or powers in statutes to arrest for offences such as aggravated trespass under s.68 Criminal Justice and Public Order Act 1994 (CJPOA) or watching and besetting under s.241 TULR(C)A 1992.

3. WHAT ARE THE PLANNED CHANGES?

The immediate driver for change was a report by HMICFRS in March 2021, “Getting the Balance Right? An Inspection of how Effectively the Police deal with Protests” after the Home Secretary commissioned it in September 2020 to “conduct an inspection into how effectively the police manage protests. This followed several protests, by groups including Extinction Rebellion, Black Lives Matter and many others.” The report made five recommendations for legislative change (ch.6), all of which now find shape in the Bill. It rejected a further 19 proposals put to it for consideration. This House of Commons Briefing Note summarises much of the position:

In its original iteration, the Bill proposed changes mainly to the 1986 Act, alongside the abolition of the common law offence of public nuisance, replacing it with a statutory offence of intentionally or recklessly causing public nuisance. The changes introduced into the Lords were much wider in ambit, and were triggered largely by the wave of environmental protests across the UK in late 2021, such as Insulate Britain blocking major roads through sit-ins. The focus of these changes is not on changing the administrative or regulatory scheme in ss.12-14A but on creating tailored, specific (albeit wide) offences and new preventive and pre-emptive powers to control. My own thoughts on aspects of the first tranche can be found here, here, and here, alongside this very valuable analysis by the European Centre for Not-for-Profit Law here.

i. The first set of proposals: March 2021

• Creation of a new noise-based trigger for the power in s.12 and s.14 of the POA 1986 to impose conditions on both public processions and assemblies
• Extending that existing power so as to allow the police to impose conditions on one-person protests in public places based on that same noise
• Creating parity between s.12 and s.14 by removing the current caveat in s.14(1) that conditions on assemblies can only be imposed on place, maximum duration, or maximum number. The power will be limited only by the necessity of preventing the serious disruption/damage/disorder or noise impact.
• Extending the reach of the criminal law: for an offence to be committed under s.12 and s.14, the prosecution will no longer need to prove someone knew of the conditions; it is enough that they ought to have known. There is an increase in some penalties to 51 weeks, from three months, and fines on standard scale 4 (from 3). HMICFRS saw this as plugging a loophole:

“We heard how some protest groups are training protesters to put their fingers, headphones or earplugs in their ears when the police impose conditions. Some protesters try to drown them out by chanting or singing. Others simply walk away when the police try to speak to them” (p.114)

• Originally the PCSC Bill proposed that the Home Secretary be conferred with a new power to make Regulations governing the meaning of the “serious disruption to the life of the community” trigger. Instead, the amendments introduced in the Lords (Marshalled amendments 116 & 126) propose a definition on the face of the primary legislation. It includes those cases where an assembly or march may result in either …
  • a significant delay to the delivery of a time-sensitive product to consumers of that product, or
  • a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
    • the supply of money, food, water, energy or fuel,
    • a system of communication
    • a place of worship
    • a transport facility
    • an educational institution or
    • a service relating to health.”

The likely impact on striking workers in certain industries of this change is obvious.

• Adopting the Law Commission’s 2015 proposal to place public nuisance onto a statutory footing by creating the new offence of intentionally or recklessly causing public nuisance. It will now be an offence (with up to ten years imprisonment c.f. common law where the maximum was life) for someone to act or omit to act where that act/omission cause serious harm to the public or a section of it, or to obstruct the public or a section of it in the exercise or enjoyment of a right that may be exercised or enjoyed by them, and does so intentionally or recklessly as to that consequence. ‘Serious harm’ means someone (a) suffers death, personal injury or disease; (b) suffers loss of, or damage to, property – NOTE this need not be serious; or (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or is put at risk of suffering any of (a)-(c). There is a defence of reasonable excuse. Putting the law onto a statutory footing will empower the police to arrest much more easily as it will or should lay to rest the so-calledRimmington problem (as interpreted in R v Stockli in 2017). There, the House of Lords held that it would ordinarily be an abuse of process to charge or prosecute for public nuisance at common law where there was an alternative statutory offence, unless there were good reasons for so doing. It has meant that public nuisance had fallen into desuetude. This proposal will revivify it.

ii. The second set of proposals: November 2021

See note above – these have now all been voted down

• Amendment I creates the new offence of intentionally locking-on without reasonable excuse and the associated new offence of having, outside a dwelling, the equipment for a lock-on.
• Amendment II increases the penalty for s.137 Highways Act 1980 (unlawful obstruction of the highway without lawful excuse) from a level 3 fine to possible imprisonment for up to 51 weeks.
• Amendment III creates a new offence of obstructing or interfering with major transport schemes. Here there is a specific defence when the act complained of was done wholly or mainly in contemplation or furtherance of a trade dispute within Part 4 of TULR(C)A 1992. As a result, this should be of limited or no concern to union members and workers.
• Amendment IV confers the power to stop and search both with reasonable suspicion under s.1 PACE 1984 and without the need for reasonable suspicion, provided an inspector has given authorisation on reasonable belief that one of the various new offences may be committed or people are carrying prohibited objects
• Amendment V establishes “serious disruption prevention orders”.

4. ANALYSIS, EVALUATION AND APPLICATION TO UNION ACTIVISM

Space precludes a weighty and detailed dissection of both the package as a whole and its separate elements, and possible/likely effects on labour disputes: picketing, rallies and marches. In reality, most of the new proposals have some capacity for traction on those traditional forms, even, as we shall see, the new policing power to arrest for locking-on, a tactic usually employed by direct action protesters such as XR or Insulate Britain.

What follows then is a critique of the most egregious issues in two parts: those of general application or at least of application to more than one proposed change, followed by discrete comment on a few of the proposals. So far, the most detailed academic analysis outside those various blog posts has been by Richard Martin of LSE: ‘The Protest Provisions of the Police, Crime, Sentencing and Court Bill: A “modest reset of the scales”?’ (2021) Crim LR 1008.

What are the concerns?

Taken together, the planned changes suffer from a host of concerns. Some or several might be thought unnecessary or at least duplicatory – and thus not contributing to the solution of any extant problem. Those with a very cynical disposition might wonder the real aim here is not legal lacunae but to placate a very different public audience. Others fall foul of rule of law and ECHR concerns around certainty and predictability, and so risk creating a greater than intended chill. Others might be thought to be overly wide and/or arbitrary. Together, they constitute a one-way expansion of preventive policing powers but without any commensurate checks, leading to this further (and strong and steady) line of attack: the planned changes risk harming police/public relations. Some of that has been voiced by former senior officers, and indeed as we shall see the police have not sought all of the proposed changes. The changes further downplay or ignore human rights principles of proportionality; there is little in the proposed changes to indicate sensitivity towards that recent line of case law – culminating in Ziegler last June (2021) – of the need, as a matter of ECHR law, for tolerance towards certain forms of disruptive protests. There has been criticism on grounds of constitutional propriety, specifically the lateness of the stage at which the second tranche of amendments were introduced by Government in the parliamentary process. This need not concern us much further. Lord Falconer for example, former Labour Lord Chancellor, on 24 November tweeted that “Govt excluding debate on new anti protest laws.  Introduced 18 pages of new law, after Commons stages and second reading in Lords complete.  Whole Lords committee stage debate on new clauses crammed into one late night. Commons excluded, Lords marginalised, Parl neutralised.” I offered some comments on this aspect in an earlier blog.

a) Unnecessary and/or duplicatory

We might first then ask what gap is being filled by some of these extensions to the criminal law or to police powers. It is hard to see, for example, how the new offence of locking-on would not simply be one of aggravated trespass, contrary to s.68 of the Criminal Justice and Public Order Act 1994. Indeed, charges under s.68 were at the heart of Richardson, a Supreme Court decision from 2014 when two activists locked-on inside a shop selling beauty products produced by an Israeli company operating in the Occupied Palestinian Territory. Another is this. How might someone obstruct or interfere with a major transport scheme without also committing public nuisance, currently an offence at common law but under this Bill, to be placed onto a statutory footing? The evidence of lead HMICFRS inspector, Matt Parr to the JCHR in April was that the focus of the report, and recommendations, was not the necessity for any of the new proposed powers but solely their efficiency and effectiveness: “Whether or not they are necessary is really not a matter for us. That is a matter for the Government.” Relatedly, it is also a little surprising that there is nothing in the Bill seeking to rectify the outcome of Baroness Jones’s successful JR (in late 2019) – over the Met’s centralised imposition of London-wide s.14 conditions – outrage over which was the spark for reform in the first place. That would have been a simple matter on which to legislate albeit (of course) contentious too, but its omission is telling.

b) Lack of certainty

It was the view of the JCHR in its report on the first set of proposed changes (in late June 2021) that several fell foul of the certainty principle at the heart of the protection of human rights, the ‘prescribed by law’ test in Article 11(2). The new noise trigger for example is dependent on a reasonable belief that there will be serious disruption to the activities of an organisation carried on “in the vicinity” – how far away need or must they be before the effect on them can be discounted? What does “serious annoyance” mean sufficient to constitute the (now) statutory offence of causing public nuisance? If we turn to the second tranche, the new offence of ‘locking -on’ is made out if A attaches themselves to B or to another object – does ‘attach’ require any level of permanence above (we must assume) being merely transient? Does it and should it require something more than simple human agency – equipment or an instrument? It is certainly possible to view the statutory language as encompassing two more strikers linking arms to prevent non-striking workers coming in, as happened last week in the GMB dispute in Eastbourne, as constituting “attaching” themselves to each other.

c) Expansion of pre-emptive policing powers

Several of the proposed amendments offer considerable expansion of pre-emptive policing discretion without commensurate checks and balances, what Lucia Zedner among others has typified as the preventive turn in criminal justice. We see this in at least two of the proposed changes, most obviously with the new noise trigger. The addition of this changes quite significantly increases the potential for preventive intervention in that it becomes much easier to predict or foresee – and thus ‘reasonably believe’ – that noise will emanate from a protest or picket line than it is for serious disorder, serious property damage or serious disruption to the life of the community. This is aside from the more general concern that conditions based on excessive noise risk being construed as what I termed in one of those earlier blogs an existential threat – how many protests or labour disputes are not, do not become and (importantly) are not likely to become noisy? It thus offers up much more easily for the police – should they choose (aye, there’s the rub) – the chance to impose conditions on a picket or union rally.

Indeed, previously we might have gone so far as to say that s.12 and s.14 of the POA 1986 were probably otiose in the context of a trade dispute. A peaceful picket should offer little or no risk of disorder (let alone serious) or property damage (ditto) and if the picket were limited in numbers and staged at the place of work, Iit is much harder to see how “the community” could be disrupted, though not impossible. These changes open up pickets and rallies and marches much more easily to regulation on the basis of seriously disruptive noise. Indeed, and in contrast to some/many protests, we might assume that part of the aim of a workplace picket is to disrupt whatever business activity is carried on there, alongside of course to drum up support and persuade passers-by not to buy their goods or use their services. In short, the new noise proposals should create in the minds of union members a serious worry about now facing the sanction of conditions on pickets and marches during a dispute, together with the possibility of arrest for anyone who disobeys and either knows or (if the Bill is passed) ought to have known of that condition. The only caveat to this extent is that conditions can only be imposed if they are proportionate. This is not a limitation on the face of s.12 or s.14 but is the result of the High Court judgment in Brehony, under the HRA. In practice, what that means – and especially if allied to the principle established in Ziegler (below) of tolerance even for disruptive protests and union action – is a carving out of an as-yet unknown protected sphere of operation for workers.

Just now the point was made that it was hard, under the POA in its current iteration at least, to see how many workplace pickets could seriously disrupt the life of the community. That may no longer be so if and when the November proposals make it onto the statute book. These flesh out and give meaning to the term. As we saw above, with their focus on disrupting delivery of time-sensitive products to consumers or a prolonged disruption of access to any essential goods or any essential service, they readily provide a route for any officer inclined in advance or at the scene to try to control a labour dispute.

The proposed increase in stop and search powers (both with and without the need for reasonable suspicion) raises similar but likely lesser concerns for striking workers (as a matter of law anyway). The Bill adds new offences – wilful obstruction of the highway and the new statutory offence of intentionally or recklessly causing public nuisance – to the existing general power in s.1 of PACE 1984. As such searches require officers to have reasonable suspicion that they will find an article intended for use etc in connection with either wilful obstruction or causing public nuisance, in the abstract, it is hard to see what articles a union member might have about them that would of themselves meet that criterion. Though, possibly, placards and loudhailers might be the means seriously to annoy others and thus mean public nuisance has been committed. While in general powers stop and search without suspicion are attended by greater worries, here – since an inspector’s authorisation (the basis for such stops and search) is also dependent on that same reasonable suspicion – the expansion is probably no greater. Were an inspector able to convince themselves (i.e. reasonably to believe) that the contents or simply the number of placards at a strikers’ march or rally risk constituting a serious annoyance to the general public – and so grant an authorisation – then there would be no constraint on any one stop on the street by any one officer. The practice however of stop and search over just the past couple of decades shows that it is apt for misuse. The evidence that widely framed laws such as stop and search provides offer opportunities for misuse and expansion is fairly clear, certainly if you are young, male and black. Without greater definitional clarity and narrowing, anyone near a picket or strike rally might be stopped and searched or even arrested simply for walking with a placard.

d) The position of the police

All of that explains why during the course of passage of the Bill in the summer, three former senior officers – a former chief constable, a former Met deputy assistant and a former public order Gold Command – wrote to the Home Secretary (see their letter in The Times (5 July 2021) outlining their worries about the “dangerous and harmful implications” of the proposed (and more limited) expansion of powers in the first wave. They suggested that the proposed powers risked placing officers in the “unenviable position” being asked to step in and hold the ring, to adjudicate on obviously contested socio-political matters better suited to resolution elsewhere, risking “undoing years of good work reinstituting police legitimacy in the eyes of the public.” Similarly, during his evidence to the JCHR in April 2021, CC BJ Harrington, NPCC Lead for Public Order and Public Safety, made clear that from the police’s perspective, the more pressing reason to make changes to the 1986 Act was not a concern with noise but bringing the law on static protests in line with that on protest marches. The police were not unduly concerned about current limits to or gaps in powers, considering their powers to be reasonable, and allowing them to impose conditions that were proportionate, legal and necessary. That aligns with the concession the Met made in the Baroness Jones JR (at [76]) that they had sufficient powers to deal with the sorts of protests XR were engaging in and were planning. And It’s not just the usual suspect voices making clear their worries. On the last day of Report stage in the Lords, Baroness Camilla Cavendish, Crossbench Peer, and former Head of No.10 Policy Unit under David Cameron, told BBC Radio 4’s “Today” programme that if the House of Lords did not amend the Bill, we would be ‘sleepwalking into a police state.’

e) Lack of proportionality

Neither is it at all clear how far the proposed changes to the law, certainly collectively, cater for the changed judicial approach to disruptive protests and union action, evident in the Supreme Court decision in Ziegler, in June 2021. While that case (influenced by change in approach by the European Court of Human Rights at Strasbourg) does not in all situations establish that disruptive protesters will have a defence to charges of obstructing the highway without lawful excuse (s.137 Highways Act 1980), it does offer a more measured, more evaluative and more structured route to resolving the difficulties of balancing the right to peaceful protest with social interests. In short, at least for charges under s.137 (and we need here to pause and query whether it is of wider application to other charges, the very issue raised in the acquittal of the Colston Four, and on which the AG herself said she is considering seeking higher court determination), it requires of the police and CPS a proportionate response. Simply blocking the road for say an hour will no longer of itself constitute a crime. Many of the Government’s planned amendments offer no such nuance and as such risk being held incompatible. For example, the new offence of locking-on such as to cause (either intentionally or recklessly) serious disruption does not allow for consideration of all the factors that would, following Ziegler, go to the question of proportionality and thus the legality, in ECHR terms, of any conviction. The new noise provisions (the extension of s.12 and s.14 of the POA) are triggered only where there is likely serious disruption. That term must be interpreted in line with the Ziegler criteria and approach.

The focus of Ziegler was on what could constitute a lawful excuse. The answer was that exercising Art 11 rights could, with the result that only disproportionately disruptive protests or actions took someone outside the protection of the ECHR/HRA. While Ziegler was limited, as all judgments are, to the facts at its heart, it does not seem to be a leap of the greatest magnitude to argue and for a court to hold that all patent lawful/reasonable excuse defences should be so read (though on that see last week’s Court of Appeal decision R v Brown (14 January 2022)). If that were so, greater protection is obviously offered to workers taking part in collective action. The statutory adoption of the offence public nuisance contains such a provision in cl.61(3), as does the new offence of locking on. What is however missing other than for the new offence of obstructing or interfering with major transport schemes (as we saw above) is a specific “Golden Formula” defence – excluding acts or omissions done wholly or mainly in contemplation or furtherance of a trade dispute. It will be harder under the interpretative rule expressio unius (est) exclusio alterius to argue that such a proviso should be applied across the legislative scheme. Workers will have to rely – and more than that, predict that they will lest they feel chilled from pursuing their planned union activities – on a court’s willingness to ‘read’ and interpret Article 10/11 protection for disruptive action and protest (i.e. Ziegler) into reasonable/lawful excuses defences, something that will not aid clarity or ex ante predictability, not until those judicial pronouncements start to filter down.

f) Serious Disruption Prevention Orders

The last aspect of the proposed changes to be addressed here is a specific one, the introduction of Serious Disruption Prevention Orders (SDPOs). These warrant much greater individual attention. In short, they will allow a court to impose a preventive order when either convicting someone for the second time (in a five-year period) for what is termed, but undefined, a ‘protest-related offence’ OR on an application by the police to the Magistrates’ Court at any time provided certain conditions are met (see below). An SDPO can last for up to two years and can include quite serious restrictions on ordinary life.

There are multiple concerns here. We might consider just five:

• a lack of clarity to and the extensive scope of key terms. One of the proposed triggers for a court to consider is the necessity of imposing an order so as to prevent X “causing or contributing” to either the commission by Y of a protest-related offence or a protest-related breach of an injunction, or the carrying out by Y of any likely seriously disruptive protest. X might well ‘contribute’ to later picket line disruption by giving Y, his work colleague, a lift to work. 
• the fact that they might attach when previous wrong-doing was neither serious nor disruptive or it was but was not criminal (see below);
• the fact that – as with e.g. ASBOs and football banning orders – orders are made on the balance of probabilities, that is the civil test yet if someone breaches one without a reasonable excuse, they commit an offence. The same should hold here as it did above for “reasonable excuses”;
• the scope of possible restricted activities that could be included in any SDPO:
  • being at a particular place or being there at/between particular times;
  • being with particular persons
  • participating in particular activities
  • having particular articles with them
  • using the internet for certain restricted purposes

which might well engage the exercise of rights under Article 8 alongside those under Articles 10 and/or 11; and

• the fact that A can be given an SDPO without A having ever committed a crime. Three of the new conditions that allow the police to apply to the Magistrates’ Court allow the police to seek to satisfy a court on the balance of probabilities that on at least two occasions in the relevant period, A has:- 
  • carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation OR
  • caused or contributed to the commission by AN Other of a protest-related offence or a protest-related breach of an injunction, OR
  • caused or contributed to the carrying out by AN Other of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation

5. CONCLUSION

In what are by now well-known words, certainly to those practising and researching in the area of protest law, Laws LJ put it thus in Tabernacle: (at [43])

Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.

While some of the commentary on the Bill risks hyperbolic overload – such as claims it will make it illegal to protest and will outlaw political dissent – it remains the case that this Bill constitutes a significant shift in the balance of power between citizens and the state, between workers and the state. It will certainly make it much, much harder to engage in many forms of disruptive trade union action – either through advance preventive (and predictive) regulation or through criminalising a range of tactics and strategies. More than that, it risks chilling all sorts of forms – workers might decide not to “just in case” – and renders many more in hock to policing discretion, a shift that, as we have seen, some (and who knows how many?) senior officers themselves abjure. All this at a time when the Government in its December 2021 HRA Consultation ([204]-[217]) is committed to expanding the protection for freedom of expression, considering it to be under threat. From whom though we might ask? Strange days, indeed.

(Suggested citation: David Mead ‘The Police, Crime, Sentencing and Courts Bill – a Look at the Public Order Provisions’, UK Labour Law Blog, 21 January 2022, available at https://uklabourlawblog.com)