Link to bill discussed here
https://bills.parliament.uk/publications/49143/documents/2653Note: Serious disruption is defined by the Home Secretary but I haven't found where it's actually defined. I've only found speculation by 3rd parties what it exactly means, with speculation that it's whatever protests the Home Secretary doesn't approve of. The definition is crucial for interpretation of this bill. As a sidenote, while I know nothing about her, I must say that the behaviour she has exhibited in a few articles I read in the search for the definition of serious disruption, the Home Secretary seems to have sincerely made herself out to perhaps be an unpleasant person and one ill suited to make an unbiased determination with such a heavy penalizing effect on it's subjects.
Note3: I believe
labor related protests are exempt to some extent from the upper sections of the bill regarding offences, though I would have to restudy them to be certain. I felt I should clarify this, though I did not write anything about those sections.
(7) The reference in subsection (1)(a) to “activities” does not include a reference
to activities carried out or likely to be carried out wholly or mainly in
contemplation or furtherance of a trade dispute.
I started criticizing at section 18. The offences of things such as blocking infrastructure, locking on, and whatever the hell tunnelling is are not the true problems with this bill in my opinion, as those are as valid interests of the state, as is allowing peaceful and effective protests that do not pose a threat to the functioning of society. The true problem is that court orders can be obtained without the commission of criminal offences at the request of chiefs of police and certain parts of the government. My analysis is that this is in order to pre-emptively chill if not retrograde organization and support for protests. In addition, some of the language suggests this is to be used against even "protest related activity" instead of "illegal protest activity". This is especially true for anyone who already would have an order against them, in which such sections as apply to this situation this language appears multiple times, though if I was not incorrect in my reading it can also be applied to orders not requested as part of a criminal offence sentencing. Finally, while I know not whether English law already broadly encompasses this, this bill seems to give authority to private agents of the government to charge subjects of the order maintenence fees, particularly in regards to electronic monitoring. This is a very bad idea that will lead to corruption of the process through the influence of for-profit agents that will certainly have ties to those who impose these orders as such an entity is usually staffed if not owned by those retired from or otherwise affiliated with law enforcement (due to their familiarity with such matters), while chiefs of police are able to request to the appropriate courts noncriminal orders as well as request extensions to existing orders with seemingly no limit to the number of extensions possible. This is simply the nature of things, and this bill does not contain language that satisfies me that it will not be the result.
Note4: Not every listed subsection is a complaint; some are simply listed to largely maintain the structure of the bill though my listing assuredly is quite imperfect. I bolded areas of particular concern for TLDR reasons.
Section 18 Injunctions in Secretary of State proceedings: power of arrest and remand
(1) This section applies to proceedings brought by the Secretary of State under
section 17 (power of Secretary of State to bring proceedings).
(2) If the court grants an injunction which prohibits conduct which—
(a) is capable of causing nuisance or annoyance to a person, or
30(b) is capable of having a serious adverse effect on public safety,
it may, if subsection (3) applies, attach a power of arrest to any provision of
the injunction.
(3) This subsection applies if the Secretary of State applies to the court to attach
the power of arrest and the court thinks that—
35(a) the conduct mentioned in subsection (2) consists of or includes the
use or threatened use of violence, or
***
(b) there is a significant risk of harm to—
(i) in the case of conduct mentioned in subsection (2)(a), the person
mentioned in that provision, and
40(ii) in the case of conduct mentioned in subsection (2)(b), the public
or a section of the public.(4) Where a power of arrest is attached to any provision of an injunction under
subsection (2), a constable may arrest without warrant a person whom the
constable has reasonable cause for suspecting to be in breach of that provision.
***18(12) (12) In this section—
“harm” includes serious ill-treatment or abuse (whether physical or not);This is a very broad definition of harm that would easily include saying mean but legal things, unless this is further defined in extant law.
Section 19 Serious disruption prevention order made on conviction
is somwhat bad:
3(a)(iii) and (v) are troubling, especially (v) due to the serious disruption to 2 or more people bit:
(v) caused or contributed to the carrying out by any other person
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, in England and Wales, and
Use of the word or in (3)(a) which says essentially "any of the above" rather than "these in conjunction" by using the word and; also if it is to be "any of the above" there should probably should be distinguihment of severity, as the word choice of or without distinguishment of severity is causing "any of the above" to be the same level of severity. As this is a punitive measure in this section applied at sentencing of an offence, it would be better served by the distinguishing of levels of severity.
5(b) and (d) both utilize the problematic "serious disruption"; while use of the subjective standard is visible in (iii), "egregious" being the word in question, unless that is clearly defined in law.
7 makes me wonder if it is considered punitive or if it is some sort of administrative function under the law/precedent or if that distinction is not necessary in English courts
9 see 7 above, if there is a distinction in English courts is this allowed in the correct designation of punitive or administrative
Section 20 Serious disruption prevention order made otherwise than on conviction
(1) uses and, so not quite as bad as it looked however in combination with allowing persons listed in (7) to make a complaint to the court by (2)(a)(v) opens up many activities to a request of an order. This opens up applying an order to people who "contributed" to a protest that disrupted 2 or more people within the past 5 years. Assumably "contributed" is defined somewhere, perhaps in extant law. If not it is open to interpretation.
(2) does use or (all of the above)
(iii) (iv) and (v) all are reasons for a complaint to be made without a conviction if two instances of either different protests or different days (section 10 defines multiday protests as only counting as the last day) are held to have occurred in the prior 5 years by (7) and the court is satisfied on the balance of probabilities
(3) (not a problem, just a reminder so I don't mislead) clarifies the period is 5 years and is not retroactive from the bill becoming law, only effective past that point
(4)(b) and (c)(ii) serious disruption to two or more people or organization; (d) also (iii) is seemingly egregious
(d) to protect two or more individuals, or an organisation, in England
and Wales from the risk of serious disruption arising from—
...
(iii) activities related to a protest.(5) is explaing what an order is
(6) no wingdings or Esperamto
(7) lists who can send a complaint to the court, essentially all police chiefs as defined by a later section but also some specific agencies including
(c) the chief constable of the Civil Nuclear Constabulary
:O no wonder they don't usually choose to carry firearms
(8) defines police chief as chief in subject of the order's residing jurisdiction or in the jurisdiction they are currently in or are planning to travel to
(9) says the court a chief should send the complaint to is a court with jurisdiction for a local justice area that includes any part of the chief's police area
This presumably means they will quite often know each other well. Perhaps it should be an independent board that hears the complaints from section 20. The board's makeup should include representatives from civil liberties organizations or something along those lines as appropriate.
(10) multiday protests only count the last day
(11) time limits under an act from 1980 that I know nothing about don't apply for this. Listing this because I don't know the implications
Section 21 Provisions of serious disruption prevention order
This section reads like it was copied from one of the various US state's sex offender registry statutes
(1) says the only requirements and prohibitions able to be imposed by an order are limited to the purposes of preventing what is listed by 19(5) and 20(4), but those are "serious disruption" subsections and also describe the objective of the sections as being the elimination of "risk of serious disruption" to two or more people or an organization.
This will be interpreted as a very stong measure due to the requirement of elimination of even the RISK of serious disruption.(2)(a) and (b) effectively assign a probation/parole agent, though it does not mandate a state employee. If it does not in a later section or in a seperate law clarify this, it may leave it open to private companies to profit from this law.
(2)(c) enables electronic monitoring. If the operating cost of the monitoring device is charged to the subject and not the state, the doors open wider for profiteering off this. In addition a company could still profiteer even if the state provides funding to operate the electronic monitoring, so the state should provide the funding and operation rather and not charge the subject a fee for being electronically monitored.
(3) reminds there is a section just after this with more on requirements
(4) The prohibitions imposed on a person (“P”) by a serious disruption prevention
order may, in particular, have the effect of prohibiting P from—
(a) being in or entering a particular place or area;
(b) being in or entering a particular place or area between particular times
on particular days;
(c) being in or entering a particular place or area between particular times
on any day;
(d) being with particular persons;
(e) participating in particular activities;
(f) having particular articles with them;
(g) using the internet to facilitate or encourage persons to—
(i) commit a protest-related offence or a protest-related breach of
an injunction, or
(ii) carry out activities related to a protest that result in, or are
likely to result in, serious disruption to two or more
individuals, or to an organisation, in England and Wales.
This seems like common probation conditions however it is not a definitive list as this is the end goal of the order rather than how to achieve them. For example, does (g) when applied in a way to remove the RISK of a serious disruption incur the complete denial of access to the internet? Courts in the states have decided this is untenable in modern society but I don't know how precedent stands in England and Wales.
(6) pertains to this in that it says exceptions to prohibitions may be given; however in the case of the internet one wonders if a court would normally be interested in allowing the extra difficulty of monitoring the subject of the order's internet usage rather than simply banning them from using the internet or computers in general for a period of time.
(7) hilariously enough completely overwrites 21(1) and (6) and reaffirms sections 19(6) and 20(5), both of which allow the court to:
(a) requires P to do anything described in the order;
(b) prohibits P from doing anything described in the order.
(8) clarifies that requirements or prohibitions imposed by an order must as far as pacticable avoid conflict with religious beliefs (a) and allow the subject to continue to work or go to education (they will need to pay fines and the electronic monitoring company if it isn't paid for by the government imposing it after all). That's it, the whole list of limits on what can be imposed.
Section 22 Requirements in serious disruption prevention order
(1) says that any order with a requirement on the subject must have a probation/parole officer without calling it that.
There is no clarification here that it must be a government agency. Is it normal practice to have private companies offer supervision services in the UK?
(2) Can be individual or an organization. There are no clarifications here who should qualify.
(3) requires evidence of enforceability of the order from the supervising individual or organization, as to whether they are capable of enforcement of the order.
(4) necessary reminder to judge not to make order impossible to comply with due to conflicting requirements
(5) Interestlingly, subsections (1) to (4) don't apply in relation to the electronic monitoring requirements in section 23. I looked ahead to see why and wow that section looks bad. It makes me think some tories or their homies are purchasing ankle monitoring bracelets somewhere.
(6)(a) sternly informs the person specified in subsection (1) that it is their duty to make necessary arrangements. If that should not be clear enough, it specifies and I quote: (the "relevant requirements")
(b) also promote subject's compliance with relevant requirements
(c) also inform police both if subject has (i) complied with all relevant requirements or (ii) has failed to comply with any relevant requirement. (i) seems unnecessary unless they inquire
(7) which police chief to inform, probably the same one who filed the complaint if it was a non-conviction order
(8) and (9) specify mandatory requirements that require the subject to stay in contact with their supervisor in accordance with other instructions given by them and notify them of any change in subject's home address. Notably there was a section somewhere that depended on whether an order had requirements; I wonder if these mandatory requirements trigger that section as (9) specifies the obligations in (8) are to be treated as requirements imposed on subject by the order.
Section 23 Further provision about electronic monitoring requirements
(1) describes whether court can impose monitoring (2) not with subject absent (from court?) (3) not without approval of any person without whose co-operation is required for electronic monitoring to be practical
(4) can only be imposed if electronic monitoring arrangements are available in the relevant area and possible to arrange
(5) defines relevant areas allowed and forbidden by the order and (b) (i) explicitly says limiting of movement for specified periods at a specific places is allowed (except for religious, employment, or educational reasons due to a section above this I think. In some of the US's worse examples of electronic monitoring nothing but work, grocery and laundromat visits for entire period of monitoring is quite possible)
(6) Order that includes electronic monitoring must specify the person who is responsible for the monitoring. I think this is the part that is severed from 22(5) so that the electronic monitoring can be a different person or organization than the supervision person.
(7) person specified in (6) must meet regulations by statutory instrument by the Secretary of State (no hint what that might be such as an admin code or something, perhaps it doesn't exist yet)
Oooh, we finally get to the big one I think! Here's the subsection that potentially can make some people a whole lot of money off these accursed protesters.
(8) Where a serious disruption prevention order imposes an electronic monitoring
requirement on a person (“P”), P must (among other things)—
(a) submit, as required from time to time by the person specified under
subsection (6), to—
(i) being fitted with, or the installation of, any necessary apparatus,
and the inspection or repair of any apparatus fitted or installed for
the purposes of the monitoring,
(b) not interfere with, or with the working of, any apparatus fitted or
installed for the purposes of the monitoring, and
(c) take any steps required by the person specified under subsection (6)
for the purpose of keeping in working order any apparatus fitted or
installed for the purposes of the monitoring.
These obligations have effect as requirements of the orderThe key is the last bit in (c). If a company says subject owes them 15 sterling a day to maintain their government imposed yet privately supplied monitoring device, they now owe that company 15 sterling a day until the anklet is removed by the order, and the government will, one can assume, enforce this in some way at some point, especially as the bill makes such directives as the 15 sterling to the company have effect as a requirement of the order.
(9)(a) and (b) are solid legalese but I think if I translated it correctly that it means the regulatory hoops required to begin a lucrative career as ceo of an enforcement privateer company detailed in 23(7)
Section 24 Notification requirements in serious disruption prevention order
This section lists what is required of subject and the time limits placed on them to notify their local police of various informations such as name, aliases, address etc before facing violation of the order. Notably what sticks out in this subsection is a lack of detailed process (essentially walk in and give information to a police) and no mention of how the information is stored, perhaps in some sort of registry... there is a later section that details guidance to police chiefs from the Secretary of State so there's that (note after reading the section on Guidance, that section is open to shenanigans and so there is no "at least there's that" there. The other issue is the mandatory reporting window is only 3 days, this is exceptionally short for a reporting requirement, and if we review one of the sections above this we recall that these orders may be issued without the subject present in the court. Does the court send a text to subject? Is there an exception for subject being unaware, or must they prove to some standard in defense they were unwitting violators? It also must be done in person, further exacerbating the issue of the short reporting period, though a silly interpretation is that it does not have to be in a speaking voice or in English. However the in person requirement is a burden, especially with a short 3 day reporting period. A longer period with written submissions dated to a timely mailing should be seriously considered unless a quiet result of the law is to be difficulty for the subject to avoid violating the order on reporting requirements.
25 Duration of serious disruption prevention order
(1) Law not retroactive
(2) order must be between 1 week and 2 years(!) duration
(3) and (4) says the order can be delayed to take effect until after subject is released from state custody, whether incarceration or probation/parole/other supervision
(5) the court order may set durations for requirements or prohibitions that are in addition to or if in conflict presumably override the supervising person's own requirements.
(6) electronic monitoring not to exceed 12 months.
yet the following
(7) Subsection (6) is subject to any variation or renewal of the order under section 28.Oh. I wonder why they added (6) then if the next subsection completely destroys it as a functional subsection. I checked 28 and it's exactly what you might be expecting by now: the ability to modify, renew, and extend the order at the request of a whole list of colorful characters.
(8) These orders don't stack, a new one overwrites the previous one.
(9) defines custodial sentence as the same as in the Sentencing Code
Section 26 Other information to be included in serious disruption prevention order
Short section, requires order to mention the reason for the order and the penalties imposed for breaching the order. I was confused until I noticed the section after this details the punishments for
violating an order. I had thought perhaps it was unnecessary as punishments are listed in the first few sections about punishments for protests of the sort detailed by the bill. My apologies, lots of new punishments!
Section 27 Offences relating to a serious disruption prevention order
(1) order is violated by failing requirements (a) doing prohibitions (b) or knowingly lying to police about information required by the order.
(2) sentence range not to exceed the maximum term for summary offences, a fine, or both
(3) defines maximum term for summary offences:
(a) if the offence is committed before the time when section 281(5) of the
Criminal Justice Act 2003 (alteration of penalties for certain summary
offences: England and Wales) comes into force, six months;
(b) if the offence is committed after that time,
51 weeks.
This seems odd because the law has sections that declare it not retroactive. I don't know why the Criminal Justice Act of 2003 is relevant at all to this bill, unless it somehow hasn't been enacted in 19~ years. Perhaps it's mandated by court decision that all penalties must clarify this to avoid ex post facto (I thought it was Ipso post facto from memory lol) sentencing for old offences from prior to the enactment of the bill.
Section 28 Variation, renewal or discharge of serious disruption prevention order
(1) listed people in (2) can apply to the appropriate court to vary, renew or discharge the order.
(2) List of who may apply to the court
(a) subject of order
(b) The chief of police in the area of residence
(c) chief of police who believes subject is in their jurisdictions, or planning to come there (no time frame requirement in the bill)
(d) the chief who requested the order if they are not (b) or (c)
(e) the chief where the criminal protesting was committed
(f) constables listed in (3)
(3) Constables (3) are
(a) the chief constable of the British Transport Police Force;
(b) the chief constable of the Civil Nuclear Constabulary;
(c) the chief constable of the Ministry of Defence Police.
(4) Covers where the application for this section is made; appropriatel magistrates' court and in if a part of any other case (presumably during a protesting trial) in accordance to rules of court.
(5) court must hear from the person making the application as well as anyone listed in (2) who would like to be heard. This includes subject, but does not mandate their input if they do not wish to be heard. This may be due to being unable to attend or unaware, but perhaps it clarifies what to do in that circumstance later. (coming back to this later in my final edits, I do not recall this being specified)
(6) court may vary, renew or discharge the order as it thinks appropriate subject to sections (7) to (9)
(7) The court may (a) vary to (i) extend duration of the order, (ii) extend the duration of a requirement or prohibition under the order, (iii) or add requirements or prohibitions to the order
(b) completely renew the order but only according to the purposes subsection (8), which appears to say if subject ever plans to protest ever again (not just criminally) due to 28(8)(d)(iii)(8) The purposes are—
(a) to prevent P from committing a protest-related offence or a
protest-related breach of an injunction,
(b) to prevent P from carrying out activities related to a protest that result
in, or are likely to result in, serious disruption to two or more
individuals, or to an organisation, in England and Wales,
(c) to prevent P from causing or contributing to—
(i) the commission by any other person of a protest-related offence
or a protest-related breach of an injunction, or
(ii) the carrying out by any other person of activities related to a
protest that result in, or are likely to result in, serious
disruption to two or more individuals, or to an organisation,
in England and Wales, or
(d) to protect two or more individuals, or an organisation, in England
and Wales from the risk of serious disruption arising from—
(i) a protest-related offence,
(ii) a protest-related breach of an injunction, or
(iii) activities related to a protest.(9) Order modification in regards to electronic monitoring cannot extend monitoring by more than 12 months at a time.
Due to a lack of restrictions on number of extensions, it seems to be possible the order can be extended an unlimited number of times. Expect to see 1 year extensions commonplace as that is the maximum term for electronic monitoring.
(10) says the following sections are in regards to extensions of the order in various forms
(11) Subject must be informed of variages or renewels of the order and it's effects.
(12) Section 127 of the Magistrates' Courts Act of 1980 does not apply to a complaint under this section. I do not know what this is without checking.
(13) what courts have jursidiction over order modification or renewel (largely the same as above sections)
Section 29 Appeal against serious disruption prevention order
(1) Orders given in conjunction with a sentencing for an offense are to be appealed as if the order were a sentence passed on subject.
(2) clarifires that orders made otherwise than on conviction subject may appeal to the appropriate court, though it does not clarify here what sort of appeal it is considered, and I don't know English law well enough to say what is the "default". ie whether this is the same process as criminal appeals, which are generally noted worldwide for the weight of limitations imposed on the defendant.
(3) refusals to grant an order under section 20 (order otherwise that on conviction) may be appealed by the complainant (police chiefs generally it seems) to an appropriate court. This gives more bites at the apple in higher courts.
(4) when application under section 28 for an order variance, renew or discharge
(a) person making the request for an order may appeal to the appropriate court
(b) subject of the order may appeal
(c) a person making the request may appeal the above result of (b) if subject is successful in modifying the order (essentially relitigating this and giving another bite at the apple; an extra appeal on the side apparently for requesters of the order once the subject of the order has succeeded in an appeal to a higher court)
(5) more defining of appropriate court that does appear to clarify higher courts are in play for appeals under this section
(6) On appeal to the Crown court, (a) and (b) of this subsection grant the crown court to make necessary, incidental, and consequential orders as appear to be appropriate. While I am not sure exactly of what this entails, it sounds like very wide capabilities and no specific limitations as written unless they are in conflict with other law/court rules/etc.
Section 30 Guidance
Essentially this section details who are to be informed who is to be issued guidance by the Secretary of State. This section is mostly administrative, however there is a chilling subsection in (2)(b):
(b) guidance about identifying persons in respect of whom it may be
appropriate for applications for serious disruption prevention orders
to be madeThis utterly corrupts the application of this bill from a judicial remedy to the behaviour in question to being used in a politically influenced campaign against targetted protestors by the Secretary of State (or in practice rather whatever political organization they are a part of and possibly ambitiously ascending the ranks of). Essentially the Secretary of State can issue guidance to people capable of requesting an order and guidance them into going after specific groups/people related to protest, or even the planning/coordination of future protest. This should be obvious in why it is a bad idea, especially with the very loose qualifier of "disturbance to 2 or more people" that the Home Secretary seems not to have defined publically.
Section 31 Guidance: Parliamentary procedure
This section requires guidance to be provided to the House of Paliament.
However the guidance goes into effect automatically if within 40 days the parliament does not actively reject it. This should be the other way around: the guidance should fall flat if parliament does not actively approve of it within the specified frame. Is 40 days long enough for parliament to move on this? Then it should be long enough to gain it's affirmative rather than going into effect without it's negative. This is to prevent things from "slipping through" what I'm certain is a very busy parliament.
Section 32 Data from electronic monitoring: code of practice
Lol, this one is kind of funny with pre-emptive immunity. That's usually a bad sign in something like this. See (2)
(1) The Secretary of State must issue a code of practice relating to the processing
of data gathered in the course of electronic monitoring of individuals under
electronic monitoring requirements imposed by serious disruption prevention
orders.
(2) A failure to act in accordance with a code issued under this section does not
of itself make a person liable to any criminal or civil proceedings.In other words, the bill says (1) must do something but (2) if done against the law (or presumably not done at all) no worries, thereby making this a section devoid of meaning.
Section 33 Interpretation of Part
Definitions of some terms used throughout.
Section 34 Consequential amendments
How other law is to be changed in regards to this bill should it pass. I have no grounding in this other law so I will withold comment, especially as this seems mostly insertion of things that are covered by sections of this bill and how it fits in various codes and whatnot.
Section 35 Extent, commencement and short title
The jurisdictions this bill will effect (Wales and England) and when it comes into effect
SCHEDULE
Sets the ability of courts to remand a subject who has violated an order to state custody (generally not to be more than 8 days before a hearing though reasonable exceptions are listed) and sets bond as a personal recognizance that may be increased under what appear to be reasonable conditions.
As always, please correct me if I am wrong. If it's in regard to a certain (sub)section I wrote about above, please cite which section and subsection it is, thank you. I certainly am not an expert in English law, so if extant law provides definitions for terms that are applicable or in use throughout this bill, I would welcome such information.
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