This article is reposted from the Labour Research Department Publications website, here.
Unions say the draconian Police Bill threatens trade union activity — by restricting the right to protest and placing further restraints on picketing.
Opposition to the Police, Crime, Sentencing and Courts Bill (PCSCB) has been growing as the Bill has been making its way through Parliament.
“Trade unionists in this country face some of the most stringent anti-union laws in the developed world,” NEU teachers’ union joint general secretary Kevin Courtney told a recent Stop the Police Bill (STPB) event. The online event was organised by trade unionists, MPs, anti-racist groups and lawyers.
“We are now facing further restrictions on union members’ rights to protest,” he said. “In fact, anyone organising any sort of protest, lobby or vigil, or who might want to organise one in the future should be worried about the Police, Crime, Sentencing and Courts Bill.”
An STPB briefing for trade unionists, explains how the Bill will apply in England and Wales, and Scotland — where some of the measures will also apply. The parts that most affect trade union activities deal with public order and encampment and are set out in sections 54 to 63 of the Bill (see box).
Why trade unions need to oppose the bill
The Stop the Police Bill organising group comprising trade unionists, MPs, anti-racist groups and lawyers has produced a guide to the new law, Police, Crime, Sentencing and Courts Bill 2021: a briefing for trade unionists.
This sets out that the government’s proposals will allow the police to impose conditions on a protest where they believe the noise it generates may cause “serious disruption” to an organisation’s activities, or cause people in the area to experience “serious unease”.
These conditions could include any the police decide are “necessary” to prevent “disorder, damage, disruption, impact or intimidation”.
The Bill also gives sweeping powers to the home secretary to decide what the terms “serious disruption to the life of the community” and “serious disruption to the activities of an organisation” mean.
“This is the most alarming aspect of this Bill,” said University of York law school lecturer Dr Joanna Gilmore.
“The home secretary would be able to use secondary legislation to target specific groups using these extended powers, such as groups of workers taking effective industrial action.”
It will also increase the maximum fine for breaching conditions from £1,000 to £2,500 and, in England and Wales, there would be no need to show the person charged actually knew the conditions were in place.
It will also increase the maximum prison sentence for the protest organiser from three months to 11 months, plus a £2,500 fine. Labour MP Clive Lewis points out that this amounts to “a staggering 266% increase in criminal sanctions for organisers”.
In Scotland, the level of fines and length of maximum prison sentences are shorter.
And while the new law “would have the effect of criminalising people who unwittingly breach conditions” in England and Wales, in Scotland it would apply where people knowingly breach them.
The Bill creates a broad statutory offence of causing a public nuisance.
“This would replace the relatively obscure common law offence of public nuisance with a statutory offence,” Gilmore told Labour Research.
“It was revived recently to use against anti-fracking protestors in Preston New Road [in Lancashire] and the Bill signals an intention to start using it more widely.”
The offence includes obstructing the public, or a section of the public, in the exercise of their rights or causing them “serious harm”.
“The Bill expands the definition of ‘serious harm’ beyond any common sense understanding of the term: it includes causing someone to suffer or putting them at risk of suffering ‘serious annoyance’, ‘serious inconvenience’ or ‘serious loss of amenity’”, the briefing sets out.
It will be punishable with a jail sentence of up to 10 years.
Outlawing effective protest action
“The legislation would outlaw almost all forms of effective protest action,” according to briefing author and University of York law school lecturer Dr Joanna Gilmore.
Courtney told the STPB meeting how the planned legislation would extend police powers to intervene from big marches to single person and static protests. “Did your union branch want to organise a lobby of the council over road closures, or the closure of your nursery school, to save your local library?” he asked. “This Bill affects you. Did you want to organise a local vigil about a racist or sexist murder? This Bill affects you.”
The Bill would also extend the reasons for police intervention from the current reason to “prevent disorder, disruption, intimidation” to include preventing “impact”. It would widen the reasons for prosecution for illegal protest and increase the level of fines.
“It used to be they would have to prove you were ‘knowingly breaking the law’,” Courtney added. But “it would become you ‘ought to have known the law’. Can your union branch be confident you have read all the details, before you organise your vigil? And the Bill will mean protests can be illegal if they are ‘too noisy’.
“Might the members of the board your union branch is lobbying complain that the chanting or singing you have organised outside is too loud?”
PCS civil service union general secretary Mark Serwotka added: “If noise is an inconvenience, our 100 days of strike action with vuvuzelas would have been outlawed.” He was referring to strike action by cleaners and caterers at the BEIS business department.
“If protest can have an impact, it can be outlawed. That’s the whole point of protest, to have an impact,” he added.
The government doesn’t specifically mention unions in any of its briefings on the Bill. But Gregor Gall, visiting professor of industrial relations at Leeds University, says there are “clear implications and ramifications” for trade unions, and these are not just in relation to protesting on demonstrations and marches.
In a briefing on the website of the Free our Unions campaign (whose affiliates include the PCS, the IWGB Independent Workers’ Union of Great Britain, and the RMT transport and FBU firefighters’ unions), Gall points out that the government has made it clear that those parts of the Bill “pertaining to public order result from its desire to clamp down on Extinction Rebellion (XR) and Black Lives Matter (BLM) activities”.
Nevertheless, as Gall indicates, the Bill’s provisions catch workers and their unions: “Critically and crucially, it is also as industrial/economic organisations which are focussed upon exerting leverage over employers at the points of production, distribution and exchange in the economy concerning the work conditions at those points of production, distribution and exchange.”
The police already have wide powers regarding picketing, and it is already regulated by a code of practice. The application and enforcement of the proposed law will depend heavily upon local police discretion.
Similar situations could arise, says Gall, to those where police have used COVID legislation on social distancing. These include the dispute at the Optare bus factory in Yorkshire in late 2020 involving socially distanced pickets being moved on by the police.
However, Gall thinks the main threat the Bill presents to trade union action is not actually in relation to picketing.
This rarely tries to prevent the movement of people and goods in and out of premises and is more about raising awareness that a strike is taking place, he says.
Instead, he warns, it is likely to have a significant effect on “new forms of collective action such as the innovations represented in leverage campaigns”.
Unions, including the Unite general union, the IWGB and the UVW United Voices of the World union use leverage campaigns, including static demonstrations like flashmobs, complete with whistles, drums and vuvuzelas, outside employers’ premises.
These are noisy, publicly visible on mainstream and social media, and highly disruptive. Unions use them to target suppliers and buyers, as well as the employer itself.
They have proved to be effective in campaigns including the 2011-12 campaign in the construction sector to prevent the introduction of the BESNA Building Engineering Services National Agreement. This would have changed national collective bargaining arrangements and reduced pay and conditions in the industry.
More recently, the IWGB and UVW have successfully employed these tactics to target gig economy employers and win improvements for workers in outsourced services in universities, for example.
Earlier this year, electricians protested outside sites, including London’s Royal Opera House, against deskilling attempts by contractors NG Bailey as part of the #No2ESO #ShutTheSites campaign.
“In a period of the decline of the strength of workplace unionism, this tactic has been important for workers and their supporters to exert leverage on employers from the outside, rather than the inside as per a conventional strike,” says Gall.
Trespass becomes a criminal offence
A new criminal offence of trespass, currently a civil matter, would apply to someone “residing” on land, even temporarily, “in or with a vehicle”, and is supported by police powers to enable police to “seize any relevant property”.
As well as representing a direct attack on the way of life of Gypsy, Roma and Traveller communities, Gilmore says this could be used to target pickets and workplace occupations where they take place on the employer’s property or that of a private landowner — on an industrial estate for example.
While examples of workplace occupations, or sit-ins, may be few and far between over recent years, Gall thinks they could well increase if the end of furlough in September 2021 results in widespread redundancies. The timing of the Bill is no coincidence.
“We know an awful lot of protest is coming because of what they are going to do,” said Serwotka. He pointed to protest action over issues ranging from climate change, discrimination and austerity policies to LGBTQ rights, pensions, self-determination and independence.
“This Bill is the Tory government tooling up in anticipation of widespread opposition on the streets and in workplaces,” Gilmore said.
Opposition to the Bill
Opposition has been mounting. In March, there were demonstrations outside parliament as MPs debated the Bill, after police broke up the Clapham Common vigil for Sarah Everard, who was abducted and murdered after setting off to walk home at night.
A coalition of over 40 activist groups have joined forces and taken to the streets a number of times to reject the Bill. The groups include Sisters Uncut, Black Lives Matter UK, Gypsy, Roma and Traveller Socialists, Disabled People Against Cuts, No More Exclusions, Women’s Strike Assembly and the IWGB. Many trade unionists joined the protests on the national day of action on International Workers’ Day on 1 May.
Gilmore coordinated an open letter, signed by more than 700 legal academics, calling for the Bill to be scrapped. The signatories highlighted a 2013 warning from the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association that the threshold for imposing conditions on public assemblies in England and Wales is already “too low”.
It “does not reflect the strict test of necessity and proportionality under Article 21 of the International Covenant on Civil and Political Rights”.
And hundreds of organisations and individuals, including trade unions, civil liberties groups, charities, campaigns and faith leaders have also signed an open letter to home secretary Priti Patel and justice secretary Robert Buckland, expressing their “profound alarm and concern” and calling on the government to reconsider the Bill.
“Not only does this Bill contain numerous threats to the right to peaceful protest and access to the countryside, criminalise Gypsy and Traveller communities’ way of life, as well as a whole host of expansive policing powers, but it is being rushed through Parliament during a pandemic and before civil society and the public have been able to fully understand its profound implications,” they said (see box).
Feminist campaign group Sisters Uncut says the 300-page Police, Crime, Sentencing and Courts Bill “seeks to increase police powers in terrifying ways”.
As well as criminalising the right to protest, it “will drastically impact the lives of Gypsy, Roma and Traveller communities”.
An open letter (see main text this page) explains the Bill will create a new trespass offence criminalising “the way of life of nomadic Gypsy and Traveller communities, while the government manifestly fails to provide adequate sites and permitted stopping places”.
Signatories include TUC general secretary Frances O’Grady, Unite general secretary Len McCluskey and UNISON general secretary Christina McAnea.
The Bill will also give the police expanded stop and search powers.
The Alliance for Youth Justice, which promotes the rights of children at risk of entering, or within, the criminal justice system, welcomes some elements of the Bill. Nevertheless, it says the Bill’s overall impact will be detrimental and will exacerbate existing disparities and injustices and increase the number of children in custody.
Stop the Police Bill’s trade union briefing says “it is part of a disturbing pattern of government attempts to limit opposition and legitimise state suppression of progressive movements”.
The briefing points to the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 — the “Spycops Act”, which allows the police and security services to commit crimes against anyone in the UK without fear of facing prosecution.
Sheffield Trades Council also highlights the Overseas Operations (Service Personnel and Veterans) Act 2021 and the government reviews into the Human Rights Act and administrative law.
But Gall told Labour Research: “The level of opposition is quite far behind where it needs to be. It’s growing, but small compared to the resistance to the Criminal Justice Bill 20 years ago.”
Even if protests and demonstrations do not stop the Bill from becoming law, they are still massively important. He points to the Industrial Relations Act 1971 which became law despite large protests.
After five dockers broke picketing laws under the Act and went to jail in 1972, the law became “inoperable and unenforceable”. Protests increased once the implications of the change in the law became clear and in 1974, the incoming Labour government repealed the Act.
“A stronger campaign to oppose the Bill means a stronger foundation to oppose the legislation once it becomes an Act,” Gall added.
“This Bill is a big step in the wrong direction,” said Courtney. “It’s about making freedom of assembly, freedom of speech more difficult.
“It will make trade union organisation even more difficult and community organisation even more difficult. It’s authoritarian, it’s anti-civil liberties. It’s right to resist it. And this Bill is getting a lot of opposition and we can beat it.”
He urged trade unionists to take the model motion in the STPB briefing to their branches and join the protests.