Sunak or Starmer – democracy is the answer

Phil Vellender and Steve Freeman see recent moves to curb the right to protest as the thin end of an anti-democratic wedge

Building on an existing body of public order law, today’s authoritarian iteration of the Tory party is defining itself by legislation aimed at severely curtailing our democratic rights. The ostensible motivation for this rush to legislate is curbing the protests of, among others, XR and Just Stop Oil, both bitterly opposed to the Tories’ de facto adoption of a policy of climate change denial and Sunak’s ditching of agreed carbon reduction deadlines. The government has doubled-down on its commitment to further fossil fuel extraction for the foreseeable future. And Tory loyalty to this demonstrably dangerous industry has paid off handsomely with cash flooding in from oil and gas companies for a total of £3.5 million in donations for 2022-3.

The Crown already possesses several potent legislative weapons to tackle protest. The Thatcher government’s Public Order Act (1986) created new offences relating to demonstrations, and includes powers to control public processions and assemblies. Some of the most notorious arrests of anti-monarchy protesters in 2022 were made under the 1986 Act, with others being charged under existing breach of the peace laws.  However, there are two new pieces of legislation that deeply trouble organisations such as Amnesty and Liberty.

First, and possibly of greater concern because of its reach, is the Police, Crime, Sentencing and Courts (PCSC) Act (2022). This ranks with some of the most draconian crackdowns on the democratic right to protest ever seen in peacetime. The Act significantly widens the range of situations in which police officers can place conditions on protests, including being able to ban “noisy” events, just one of the many highly controversial terms to be found in the Act. 

Second, is the Public Order Act (2023) which introduces new means to suppress peaceful protests. Controversy persists regarding the very low bar set for “disruptive” protesting. It grants the police significant new powers to prevent protests being held outside major transport networks or oil and gas/ energy suppliers. More concerning still, the Act also extends the use of stop and search powers to protests and, with more than an echo of apartheid South Africa, it introduces new protest “banning orders”, capable of preventing individuals from attending such events altogether. Consequently, in March this year, the UK was downgraded in the “civic freedoms index”, covering 197 countries and published by the Civicus Monitor (CM). CM noted the increased targeting by government of campaigners, charities and civil society bodies. The UK has now been designated an “obstructive” environment for civil society.

The climate protester targets of the Public Order Act are quite explicit – it even criminalises tunnelling, a tactic adopted by HS2 opponents – and “going equipped to tunnel”. The new provisions the Tories handed the police were given royal assent in June, just in time to be trialled against the anti-monarchy group Republic at the Coronation. Moreover, the Act can just as easily be adopted to restrict BLM or pro-Palestinian demonstrations if necessary. In the industrial relations context, RMT strike pickets could also find themselves “banned” for causing little more than minor disruption to the travelling public.

In future, Police will be able to determine start and finish times for static vigils or protests – powers officers already have in relation to marches. Additionally, senior officers will be able to decide maximum (ill-defined) “noise” limits on protests, with powers to intervene when such events are “disrupting” the “activities of an organisation” or have a “relevant impact on persons in the vicinity”.

However, the current wave of repressive Tory legislation should be examined with a stronger lens. Historically, the Crown is the power the state has over the people. Parliament and the constitutional changes of 1688-1707, were intended to keep the power of the Crown in check. However, in the twentieth century, Crown powers have grown considerably.  In 2023, our 300-year-old constitution – the “Crown-in-parliament” – is widely recognised as dysfunctional, providing ever diminishing protections for the democratic rights of the citizen.

The increasing power of the Crown is well-illustrated by the growing use of the statutory instrument by ministers. For example, the home secretary Suella Braverman employed this device to add clauses to the Public Order Act and circumvent parliamentary scrutiny, so forcing it through. Statutory instruments are not supposed to be a substitute for a parliamentary bill, since such use breaches “custom and practice” by denying the legislature its right to change laws proposed by the executive. But Braverman adopted them anyway. Liberty is currently contesting this usurpation of parliamentary procedure by taking the government to court.

It is insufficient to simply oppose these latest pieces of repressive legislation individually, the problem we’re facing runs much deeper. The growth in Crown power and its concentration in the hands of a presidential-style prime minister – be it Sunak or Starmer – presents a grave danger to our democratic rights and liberties in 2023’s severe economic and social crisis. 

The problem faced by Labour and the trade union movement, firmly rooted as they are in ideas of economism, is that political and constitutional struggles are not deemed sufficiently important. Such matters are largely to be ignored or addressed in a piecemeal fashion, issue-by-issue. This will not do. The left must develop a comprehensive, democratic programme of radical constitutional reform and, crucially, one based on the sovereignty of the people. We must replace the unaccountable power of the Crown with a fully-fledged democratic state. This has to be fought for both now and in the forthcoming general election.

Phil Vellender


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