This week has seen the introduction of the Police, Crime, Sentencing and Courts Bill, the Government’s flagship effort to tackle crime through harsher sentences, giving the police new powers and increasing restrictions on public protest. A key plank of the Government’s agenda, the Bill takes an aggressive approach to justice to “empower the police and courts to take more effective action against crime and lead a fair justice system”.

Many of its provisions are intensely controversial. Civil organisations have highlighted the lack of evidence that imposing harsher sentences will have any significant impact on crime reduction. Workers in the justice system have raised the point that the underfunding of the courts means there is already an enormous backlog of cases, with some cases being delayed until years after alleged offences have taken place.

Perhaps the most controversial provisions are around protests. Not only do the government plan to extend the use of facial recognition systems similar to those found to be illegal in a recent court case from Wales, but there are also plans to expand stop and search and most controversially of all proposals to give the Home Secretary the unrestricted and unscrutinised ability to redefine “serious disruption”, the legal principle used to determine if a protest should be restricted.

Curiously, although many of the matters in the Bill have been consulted on (sentencing, police covenant, unauthorised encampments), there is a distinct and glaring absence of consultation on the protest provisions. The only evidence cited in the Bill’s explanatory notes is a Law Commission report which suggested the replacement of the common law offence of public nuisance by a similar statutory offence. In light of what the Bill proposes this is from a legislative process point of view, rather surprising, albeit from a political viewpoint, perhaps rather less so.

Consulting on significant changes has become a democratic norm in the UK, and to find a lack of consultation on what could be a significant change to the right to peaceful protest is rather concerning. It has impacts not only on the ability of citizens to engage with their society, but also potentially on human rights, where both the right of freedom of expression and the right to peaceful assembly are protected by the Human Rights Act 1998. The idea that such a significant change could be made without consultation itself seems to infringe the basic freedoms of political engagement we are used to.

In what is possibly a demonstrator that the Government knows how controversial its proposals are, an e-mail was sent to Conservative Party members this week, purporting to be an “Official Criminal Justice Survey”. Clicking the link provided takes you to a short form, with six (fairly leading) yes/no questions about the new Bill. Parties surveying the membership is nothing new, it can be useful to build or demonstrate internal support (the likely goal here), to ensure the leadership is not out of touch with the membership, or even just to provide press-friendly figures for publication.

This one however drew our attention for several reasons. The first of these was the use of the word ‘official’ in the title of the survey. Whilst the theory is no doubt that this is an ‘official’ Conservative Party poll, when the e-mail is signed off by the Home and Justice Secretaries, with both names and titles, is there a risk that readers might mistake it for an ‘official’ Government consultation? It’s certainly not that clear. We’re not the only people to pick up on it too, the Law Society Gazette also noticed and asked the Ministry of Justice if they were involved, drawing a firm no and a referral to the Conservative Party.

It’s also not clear what exactly the nature of the survey is. Is it meant to influence decision-making, in which case it is a consultation, or is it just a temperature testing or advertising measure, in which case it’s probably not. The text of the e-mail doesn’t make it clear, merely saying “We want to know what you think of these historic reforms, so have your say…” Is that a call to action? Are the responses to be used to influence policy? The nature of the questions, being merely binary yes/no questions perhaps implies that they’re not.

The internal party survey does not touch on the issue of protest, and in light of the content it seems likely that it is merely a (perhaps arguably slightly misleading) party management matter. Irrespective of this survey, it seems clear that the protest proposals in particular are unlikely to survive the legislative process unscathed. Although protests in the vein of Black Lives Matter and Extinction Rebellion are something of a bête noire for a certain branch of the Conservative Party (the Home Secretary herself having been a vocal opponent in recent years), it seems implausible that the more liberal wing of the party would be happy to put such heavy restrictions on the right to protest. There could however be something of an epic battle ahead.