The UK’s new Police, Crime, Sentencing and Courts Bill threatens the British public’s freedom of expression, assembly, and right to protest. Among other things, the proposed bill introduces constraints on peaceful protest, allowing for police to shut down peaceful demonstrations on the basis of being too obstructive or too noisy. This defeats the very reason people gather to protest: to have their voices heard.
While some aspects of the proposed bill are welcomed by large segments of the British public, such as the proposal to make misogyny a hate crime, others pose a threat to the integrity of British democracy. Specifically, the proposed bill would (1) widen the scope of police authority to allow for the banning of peaceful protests on the basis of being too noisy; (2) introduce criminal offences for the obstruction of roads punishable by twelve months in prison; (3) extend stop and search powers that would allow police officers to stop and search individuals without reasonable grounds to suspect that they have committed a crime, and (4) allow police to demand information about individuals at peaceful assemblies, including children and the victims of crime. The bill would also increase police power to respond to “unauthorised encampments”, effectively criminalising the lifestyles of Gypsy, Roma, and Traveller people in England and Wales.
Experts and civil society groups stress that these changes to police authority would disproportionately impact minority ethnic groups and young women across the UK. The proposed Police and Crime bill comes in response to the Extinction Rebellion’s massive protests in London in 2019, as well as the Black Lives Matter protests that engulfed the UK – and the world – the following year. The bill is also understood to be linked to Insulate Britain, an environmental activist group that caused traffic obstructions in late 2021. Critics, including MPs among the opposition Labour Party, have accused the Conservative Government of an unjustified power grab. The British Parliament’s Joint Committee on Human Rights (JCHR) itself reported that the bill represents an effort to extend government and police powers in areas where existing authority is “perfectly adequate”.
Minimalist scholars of democracy would not flag the UK Police and Crime Bill as a signal of democratic erosion. Such scholars focus exclusively on the presence of free and fair elections – presumably unaffected by the proposed bill – to define a democratic regime. Nevertheless, the bill’s details strike the reader as intuitively anti-democratic. It seems, then, that more maximalist theories of democracy are better equipped to grapple with the nuanced and innovative ways in which democratic governments disguise anti-democratic behaviour.
Ozan Varol’s theory of stealth authoritarianism, for example, better explains the relationship between the UK Police and Crime Bill and democratic erosion. Stealth authoritarianism refers to behaviours which serve to protect and entrench power where outright repression is off the table.1 For the UK, who sees herself as a global power and a champion of liberal democracy, explicitly authoritarian behaviour would be too costly in terms of international legitimacy. Likewise, barring interference with elections, the UK’s democratic core is robust enough to vote out politicians who express explicitly authoritarian beliefs. It should be noted that stealth authoritarianism is not a regime type in itself – the Johnson government is not categorically different from its predecessors. Instead, stealth authoritarianism refers to specific government practices that render a regime less democratic than it was before. Varol argues that providing a limited space for expressing discontent is a characteristic feature of stealth authoritarianism. Public displays of discontent create the illusion of pluralism where the incumbent regime welcomes criticism of its policies.2 The space for expressing discontent placates the opposition, while the limited nature of this space protects against meaningful threats to the power of the incumbent.3
The UK Police and Crime Bill exemplifies Varol’s theory. The space for discontent does exist – protests are not outlawed in the UK, nor are they explicitly discouraged by the Tory government. At face value, the British public’s right to assembly and freedom of expression appears well protected. However, the proposed bill places extreme restrictions on what is considered a lawful protest. Protests cannot be too noisy, nor can they be too obstructive: in essence, protests are permissible as long as the incumbent cannot hear or see them. The appearance of legitimate discourse is maintained, while the incumbent enjoys protection from organised civil society and threats to its power.
The JCHR notes that the proposed bill leaves room for arbitrary or discriminatory abuse of police power. The use of vague language such as “serious disruption” or “too noisy” leaves the law unclear for the protestors and its implementation at the discretion of the police. Following the murder of George Floyd in 2020, necessary – and long overdue – light has been shed on the prevalance of police brutality. Given the history of abuse of power in the police force, legislation surrounding the right to protest should limit police authority, rather than expand it. Further, particularly because the bill emerged in response to movements typically associated with the Left, critics wonder whether the expanded police authority and vague legal terminology will invite not only racial but partisan abuse.
The JCHR Chair accused the Tory government of treating protest – in her words, the exercise of the lungs of a healthy democracy – as an inconvenience. To stealth authoritarians, an inconvenience is precisely what protests are: a necessary but meaningless burden to avoid the costs associated with a decline in international legitimacy. Varol’s theory maintains that stealth authoritarianism is typically pursued in order to prevent partisan alternation. If peaceful protests are quelled on the basis of noise, obstruction, or other details of the bill, it is possible that an information asymmetry will develop between the government and the public, resulting in greater obstacles to exercising an educated vote and greater barriers to partisan alternation. Whether or not these consequences will materialise is yet to be determined. Regardless, the proposed bill should be understood as a signal of democratic erosion and a step backwards for British democracy.
(1) Ozan Varol, “Stealth Authoritarianism”, Iowa Law Review, (Iowa City: University of Iowa College of Law, 2015), 2.
(2) Varol, 19.
(3) Varol, 20.