Policing Bill: picketing in the crosshairs
Read Lord Hendy’s article in the Morning Star, followed by his intervention in the House of Lords on the same subject. There you will also find the opinion of Lord Paddick, former senior police officer, that what the police need is not more laws but more suitably trained officers. The intervention by Baroness Williams seems to imply that picketing will not come under the new law. Labour Affairs make no apology for publishing the words of Lords and Ladies. More sense is spoken in that House than in the lower house or the media.
As well as cracking down on protest generally, the right to picket a workplace effectively during a strike is clearly targeted by this new draconian legislation, explains LORD JOHN HENDY QC
January 17 2022, Morning Star
As readers will know this dreadful Bill [Police, Crime, Sentencing and Courts Bill] is back in the House of Lords today 17 January. Most of its 290 pages have been debated. Few improvements have so far been achieved. Today, it is the attack on the freedom to protest which is up for debate.
This obviously concerns everyone who believes that freedom to protest peacefully is a fundamental aspect of democracy. I want to draw the attention of trade unionists to the vicious attack in the Bill directed at them.
Let’s leave aside the introduction of a new statutory offence of public nuisance with a maximum sentence of 10 years in prison. And ignore the new offence of “attaching” oneself (by glue, by clasping hands? — the word is undefined). Let’s not mention the new police right to stop and search someone without having any reason. Let’s focus on the right to picket.
The right to picket to peacefully persuade people not to work in an industrial dispute has been a statutory right since 1875. It has been much restricted, most recently by the Trade Union Act 2016. But, though emaciated, this vital right remains.
The Bill will cut down that right. This is how. A senior police officer will have the power to impose conditions on “assemblies” (even of one person) and marches where the officer reasonably believes that noise generated by persons taking part may result in “serious disruption to the life of the community” or “serious disruption to the activities of an organisation which are carried on in the vicinity.” It will be a criminal offence to breach such conditions.
Note that the key is “noise.” Pickets are not normally particularly noisy but they are certainly far from silent. The use of a loudhailer, chanting, singing, shouting “scab,” using vuvuzelas, having a Scottish piper, even making a speech might tip the balance.
And the very purpose of a picket is to cause “disruption to the activities of an organisation which are carried on in the vicinity,” namely the employer.
It really cannot be left to a police officer to decide whether noise, rather than the mere presence of the pickets with their placards, “may result” in “disruption.” Neither should it be left to the police to decide whether such disruption is “serious” — as no doubt the employer will be urging.
The Bill did not define either “serious disruption to the life of the community” or “serious disruption to the activities of an organisation.” After criticism by a Lords Committee, the government seeks to amend the Bill by adding definitions. These new definitions give the game away.
The amendment states that “serious disruption to the life of the community” may include (but is not limited to) two situations. The first is where the noisy gathering may result in a significant delay to the supply of a time-sensitive product to consumers of that product. A “time-sensitive product” is defined as a product whose value or use to consumers may be significantly reduced by a delay in supply.
Secondly, where it may result in prolonged physical disruption to access to essential goods or any service including, in particular, access to the supply of money, food, water, energy, fuel, a system of communications, a transport facility, an educational institution, or a service related to health.
The word “prolonged” is not defined and is left to the discretion of the police.
The range of industries is remarkable. Workplaces involved in food, water, power and fuel supply; road, rail, waterway and maritime transport; newspaper, mail, TV, radio, film, telephony and electronic communications; education, health and any other time-sensitive product or service. Industrial picketing is at risk in almost every sector of the economy.
As to “serious disruption to the activities of an organisation which are carried on in the vicinity,” the amendment includes where “the noisy gathering may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on” those activities. Effective picketing is in the cross-hairs.
And if the police officer concludes that a noisy picket is causing serious disruption as described, conditions may be imposed. These too are undefined but may obviously include limiting the number of pickets below the six stipulated by the Code of Practice — perhaps down to one, or perhaps a condition of near silence.
I and others in the Lords will be moving our own amendments to seek to exclude these provisions from the Bill. We will be up against it. Trade unionists beware.
This is what Lord Hendy said in the House of Lords:
My Lords, no one likes pickets. Even pickets do not like picketing. However, these clauses impinge on the right to picket, the right to picket is a fundamental aspect of the right to strike, and the right to strike is a fundamental aspect of the right to bargain collectively, which is a fundamental aspect of democracy at work.
Picketing is a highly regulated area of the law in a very sensitive political area. It has been regulated by legislation since 1875 and the last statutory amendment was in the Trade Union Act 2016. There is also a code of practice regulating picketing. There are no exemptions for pickets from either the criminal or the civil law, but these clauses will restrict even further the limited right to picket.
On the issue of noise, other noble Lords have pointed out the vagueness of the concepts involved here, which will impose a great burden on the discretion of the police in deciding what is noisy and what is not. It is notable that legislation has—and workers are very familiar with this—imposed limits on noise by way of decibels and duration in many industries. Those scientific techniques are not used here.
The very purpose of a picket in a trade dispute is to cause
“disruption to the activities of an organisation which are carried on in the vicinity”—
namely, the employer. So pickets will be caught. I note that the amendment states that
“serious disruption to the life of the community”
may include two situations: first, the supply of
“a time-sensitive product to consumers”
“prolonged disruption of access to … essential goods or any … service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … an educational institution, or … a service related to health.”
It does not take an expert to know that picketing is put at risk in almost every sector of the economy by these clauses, and it is for that reason that I have added my name to those of the noble Lord, Lord Paddick, my noble friend Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, in asking for these clauses to no longer stand part.
I am a former senior police officer and part of a small, specially selected group of senior police officers trained in the policing of protests. My view, and the view of the majority of police officers interviewed by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, contrary to what the noble Baroness, Lady Neville-Rolfe, has just said, is that the limiting factor in the policing of protests on the police’s ability to control protests is the number of suitably trained police officers available, not a lack of police powers or legislation.
Not only are new powers and new offences unnecessary but there is a very real danger of dragging the police into political decisions on which protests should go ahead and which should not, as the noble Baroness, Lady Fox of Buckley, has just said. There is a very real danger of more scenes like those we saw at theSarah Everard vigil on Clapham Common happening with greater frequency. There is a real danger of more and more police officers being drawn into policing protests to enforce more and more restrictions and bans, taking them away from policing their communities and, as a result, further undermining trust and confidence in the police and their ability to enforce the law.
Baroness Williams of Trafford (Con)
In response to the amendment put forward by the noble Lord, Lord Hendy, in Committee, we have added a defence for this offence relating to trade disputes. Alongside the defence of reasonable excuse, it will be a defence for individuals to prove that their actions were performed in contemplation or furtherance of a lawful trade dispute. This is to make it clear that this new offence does not interfere with the rights of workers to engage in lawful trade disputes.