“Too clever by half” – not a phrase instantly associated with Priti Patel. Yet her decision to make some significant substantive amendments to the Police, Crime and Sentencing Bill after the Commons had discussed it, amendments many of which were voted down by the Lords Monday night, now means that the government cannot reintroduce them when the Bill returns to the Commons. Not without introducing a fresh Bill. If they were so necessary she is now stuck. Alternatively, they were always a distraction and she will be able to get through what she always wanted.

So what are these amendments and why the concern? The basic outlines of the Bill and the worries about it are here. S. 59 was quite bad enough with its proposal to limit any protest which might cause “serious unease” or “distress” to those hearing it. (If only those Tory voters expressing their fury about No 10’s parties had done so by taking to the streets, the government could simply have shut them down because of the “serious unease” it would cause Tory MPs. Not to mention the beleaguered PM needing silence while he decides which underlings to sacrifice first). But the government sought to do more and, in its trademark style, at the last minute without scrutiny by MPs.

Those proposals –

• Making it a criminal offence to “attach” (undefined) yourself to an object or building or person or being equipped to do so. Linking arms, for instance, could be caught by this clause.
• Increasing the penalty for wilful obstruction of a motorway to 6 months.
• Making obstruction of “major transport works” a crime. A very widely worded clause.
• Giving the police “stop and search” powers if they suspect someone may commit a public nuisance. A big increase in police powers because all other stop and search powers relate to serious crime. Bluntly, this allows the police to stop protesters and so protests.
• Worse, the police can also stop and search without suspicion in their areas, in a manner similar to the powers they can use those in areas suffering an increase in violent crime. Protest is in effect seen as a social evil equivalent to knife crime. Think about that for a moment. A government which seems to think the second half of Last Night of the Proms is an adequate political manifesto wants to give the police power to stop and search people for fear that they might protest, without any basis for their suspicion.
• Finally, “serious disruption prevention orders” can be obtained against people. They will stop people protesting in person or even expressing their views on the internet. You do not need to have been convicted of anything to be made subject to such an order. Your right to freedom of assembly and freedom of speech can be taken away simply on the basis that you might say something which may be “likely to result in serious disruption“. In effect, they will stop people protesting and seriously limit their other freedoms.

It is easy to look at some individual protest or protester one doesn’t like or agree with and say, of course, they should be stopped. But that misses the point. You may not like BLM or Extinction Rebellion or Piers Corbyn. Others will dislike pro-hunting groups or Jews protesting against anti-Semitism or feminists arguing against sexual violence or people objecting to foreign military intervention. As with all curbs on liberties, ask yourself whether you’d like these powers to be available to governments you don’t support, fear even. Ask yourself whether you trust not just this government – but any government – to have such powers. Ask yourself whether you’d like these powers used against the expression of views you care about deeply. Ask yourself whether we can all trust the police to exercise such very wide powers, whether we can trust the Met in London, where a lot of protests happen. After all, there is absolutely no possibility of such powers being abused by such a force or individual officers within it. No, none at all. The very idea!

The very existence of such powers has, as the Court of Appeal said in the recent Miller case (see here for an analysis of that case) a “serious chilling effect on public debate“. After it, Ms Patel said she wanted to legislate to ensure free speech and stop the the police trying to curb this. Perhaps she had forgotten about the powers she proposed giving the police to enable them to do just that. Perhaps she thinks – wrongly – that protest is not a way of exercising free speech. Or perhaps – like far too many members of this government – she just reacts to events with whatever short-term tactic or response or proposal will look good in the media, coherence, consistency, thought or strategy being so terribly boring and far too much like hard work.

What the government wants to do with these draconian powers is effectively criminalise and severely limit the right to protest. It is likely to get its way in part because its MPs, so vocal recently when it comes to challenging Covid-restrictions, have meekly gone along with them, their attachment to freedom about as pronounced as the PM’s attachment to truth.

Only the Lords stands in its way. Since many of these proposals were introduced after the Commons had completed its scrutiny, the Lords defeat last night (the government lost 14 votes and withdrew 5 amendments) they cannot be reintroduced when the Bill returns to the Commons for a final vote. But new amendments with a similar effect might be or a fresh Bill introduced. This government has form in trying to get round rules and conventions when it does not get its own way.

“Eternal vigilance” is said to be the price of liberty. Or, ironically enough, eternal vigilance by – and reliance on – an unelected chamber. Tory MPs are, if reports are to be believed, agonising about whether the PM is no longer fit to serve. Judging by these proposals and the government’s behaviour over their introduction, it is not just the PM who is unfit to serve but this government. No country which claims to value freedom – of speech, of thought, of protest – should have anything to do with such illiberal, draconian and authoritarian measures. The very worst amendments may have gone. For now. But the remaining Bill remains a badly drafted, illiberal, dangerous piece of legislation. It – and those behind it – should go.

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