Westminster Hall
Thursday 4 February 2010
[Mr. Gary Streeter in the Chair]
Human Rights
[Relevant documents: Seventh Report from the Joint Committee on Human Rights, Session 2008-09, HC 320-I, and the Government response, Cm 7633;and the Twenty-second Report from the Committee, Session 2008-09, HC 522, and the Government response, HC 328, Session 2009-10.]
Motion made, and Question proposed, That the sitting be now adjourned.-(David Wright.)
2.30 pm
Mr. Andrew Dismore (Hendon) (Lab): The purpose of the debate is to consider the two reports from the Joint Committee on Human Rights on policing and protest. Peaceful protest is one of the cornerstones of a democratic society and we are rightly proud that the UK has a fine tradition of upholding the right to protest. However, protest has been the cause of major controversy in recent years. The law on protest around Parliament has been wholly criticised, as have the use of the containment tactic known as kettling by the police and the tactics used against climate change protesters at the Drax and Kingsnorth power stations.
The Committee decided to look at policing and protest in the light of those issues, before the events at the G20 protest. We set out to: identify the problems with peaceful protest in the UK raised by both protesters and the police; assess whether the legal framework for protest was working and, in particular, compliant with the European convention on human rights; and look at police tactics, guidance and training to see whether they fully reflected the UK's human rights obligations.
Although not an absolute right, the right to freedom of peaceful assembly and expression is protected by articles 10 and 11 of the European convention. The Government must not prevent or restrict protest, except in limited circumstances, and are obliged to facilitate the right to protest. Any restrictions must be necessary, proportionate and prescribed by law-a high threshold. The presumption is in favour of the right to protest. In practice, we recognise that the police have to balance the competing rights of protesters and those protested against, together with the rights of others involved in a protest-journalists or bystanders, for example-and counter-protesters.
During our inquiry we heard from protesters, their representatives, the police and people who have been the subject of protest, such as the staff of Huntingdon Life Sciences and the Minister. Some protest targets complained of under-policing, arguing that there had been insufficient consideration of their rights. Balancing those competing interests is no easy task, and it is no surprise that the police cannot always get it right. Protests will always upset someone-that is the whole point of protesting.
"Rights worth having are unruly things...inconvenient and tiresome."
That view was echoed in the Home Office's most recent policing White Paper:
"Rights are unwieldy things. The public can expect some inconvenience and nuisance as a consequence of the state upholding those rights. This is a hallmark of an open, democratic society."
I think that we all agree with that and congratulate the Home Office on that human rights approach.
We published our first report in March 2009, but within days we saw the issues we had discussed and the need for our recommendations to be implemented brought vividly to the fore during the G20 protests in London. As a result of what happened, we reopened our inquiry in May 2009 and heard oral evidence from G20 protesters and observers, including the hon. Member for Carshalton and Wallington (Tom Brake), the chair of the Independent Police Complaints Commission, senior police officers and the then Home Office Minister, my hon. Friend the Member for Gedling (Mr. Coaker). Our second report was published in July 2009. I am grateful for the constructive Government replies to both reports.
Two other major reports were produced in 2009 on policing and protest by Her Majesty's inspectorate of constabulary. Those were commissioned in the light of the G20 protests by the then new Metropolitan Police Commissioner, Sir Paul Stephenson. HMIC's recommendations chime very much with the Committee's findings, which I had discussed with the chief inspector, Denis O'Connor, during his investigations.
We also discussed the findings of our reports, those of HMIC, the Government's response and the White Paper with HMIC, the police-the Metropolitan Police Service, the Police Service of Northern Ireland and the Association of Chief Police Officers-the Crown Prosecution Service and the Minister for Policing, Crime and Counter-Terrorism, my right hon. Friend the Member for Delyn (Mr. Hanson), at a mini-conference we hosted in Portcullis House last week.
In setting out the issues we identified on the policing of protest, I should begin by endorsing the police's assessment that the vast majority of protests in the UK pass off peacefully and without incident-there are 4,000 to 5,000 public order events a year in London alone. It is rare for the police to offer formal conditions under the Public Order Act 1986-we were told that that happened on 70 occasions across England and Wales in 2008-and large-scale protests that are difficult to police, such as those at the G20 or the Kingsnorth climate camp, are pretty infrequent.
Nevertheless, a number of witnesses complained that police powers were being used more intensively than in the past. There were well-substantiated complaints about the misuse of stop-and-search powers, under the Police and Criminal Evidence Act 1984 and section 44 of the Terrorism Act 2000, to intimidate or harass protesters and collect personal data without explanation.
Hundreds of petty incidents, not much in themselves, have a cumulative effect that is frightening, worrying and undermines confidence and trust in the police. The National Union of Journalists and individual reporters raised with us the restrictions on photography and on the activities of journalists. For example, we saw video
footage of a police inspector instructing journalists to leave an area during the G20 demonstrations and threatening them with arrest if they did not comply.
Mr. David Drew (Stroud) (Lab/Co-op): I am grateful to my hon. Friend for giving way and sorry for missing the first minute of his speech. With regard to demonstrations, I get more complaints about the issue of photography than about anything else. Is there now a protocol with regard to whether the police should allow someone to take photographs? I know that the Home Office is to respond to that point, but it is an urgent matter. That is one of the real points of tension with protesters, as I am sure he would agree.
Mr. Dismore: My hon. Friend certainly makes an important point. The question of photography comes up in all sorts of ways, and I will refer to some of those later in more detail. Issues include the photographing of protesters by the forward intelligence teams that the police use, attempts to prevent photography or to seize equipment, and efforts to photograph protesters as they leave demonstrations and to take their names and addresses, all of which are extremely questionable in law. My understanding is that new guidance is in train on all those issues, so we will have to wait to see what it says. My hon. Friend the Minister will, no doubt, fill us in on the details when she replies.
The use of other legislation intended for non-protest purposes was also raised during the Committee's inquiry. We were concerned to hear that the Protection from Harassment Act 1997, which was brought in primarily to deal with stalkers, has been used to obtain injunctions to prevent protest activities that seemed to us to be perfectly legitimate. We heard of the injunction obtained by npower against Dr. Peter Harbour over the Radley lakes issue, where npower wanted to use the lakes to dump ash from power stations, not surprisingly attracting community disapproval. He could not afford to challenge the injunction taken out against him and the protesters. An injunction was also taken out against a photo-journalist for merely taking pictures of what was going on in that case. That was successfully challenged in court, and presumably the case was financed by the journalist's publication.
Injunctions are granted in private, ex parte-a process intended for urgency, and after the event it is often too costly to challenge. If the issue relates to peaceful protest, it is unlikely to be so urgent, so at the least the application should be on notice to the protester. That is what we require for injunctions in industrial disputes, and the same process should apply to protests. I urge the Minister to look again at the civil procedure rules to see if that could be achieved to gain a fair balance and prevent the misuse of that power.
Dr. Evan Harris (Oxford, West and Abingdon) (LD):
I am pleased to hear the Chairman of the Committee on which I serve set out the provisions so clearly. I support what he has said, as both Dr. Peter Harbour and the journalist involved in that case are my constituents. Why do the Government not understand how difficult it is for someone to have that private, prior restraint applied to them but to find that the costs involved in
resolving the matter are beyond their means, particularly if they cannot receive legal aid? I wonder whether the Minister would be willing to meet that gentleman to explain to him what is not clear from her reply in the Government's response.
Mr. Dismore: I am grateful to the hon. Gentleman, who is a valuable member of my Committee. He raises a serious issue. I was disappointed by the Government's subsequent response when we reiterated our recommendations on that. I do not think that they have got to grips with how serious an impediment to protest the use of civil injunctions is. I had much experience of such injunctions for industrial disputes when I was in practice, and it is difficult to see why the process available for industrial disputes, which is a special process for injunctions that requires that they be obtained on notice to the trade unions concerned, could not also be applied when dealing with a question of protest.
The Government response states that it is difficult to identify who is a protester and who is not because that is not actually defined in law, but I think that the courts are able to draw a clear distinction between what is and is not a protest. Moreover, it is in the court's discretion to refuse an injunction applied for ex parte inappropriately. As in this case, it is hard to see in what circumstances there would be any great urgency about an injunction being granted.
David Howarth (Cambridge) (LD): I congratulate the hon. Gentleman on introducing this important debate. I will be interested to hear what the Minister has to say, but I cannot see why the Government are against simply introducing into the rules a reference to when article 11 rights are engaged. The courts would understand that, and it would meet the point directly.
Mr. Dismore: I am grateful to the hon. Gentleman, who makes an important point. I suppose that the Government will say that the courts are required by the Human Rights Act 1998 to act compatibly with convention rights anyway, but there is nothing wrong with drawing attention specifically to articles 10 and 11 rights, if it comes to that.
Poor or non-existent communication between the police and protesters was a theme that the Committee picked up throughout its inquiry. We were struck by the total lack of trust between the police and the climate camp protesters in advance of the G20 protests. The protesters said that they had tried to communicate with the police but were not taken seriously until the hon. Member for Cambridge (David Howarth) intervened to broker a meeting.
The police complained that the protesters refused to specify where their protest would take place. It is perhaps no surprise, in such circumstances, that the police prepared for the worst and were then accused of overreacting-sometimes with justification-to what was a largely peaceful protest. There were incidents of vandalism and violence, but the vast majority of protesters were not engaged in such activity.
The Committee recommends that police forces should nominate a point of contact for protesters, to facilitate communication. Some forces have done that for specific
protests. I would be grateful if the Minister confirmed whether she agrees that all forces should adopt that approach.
The Government response mentions the use of new technologies to communicate with protesters during protests. However, I understand from our discussions last week that attempts have been made to undermine the use of Bluetooth technology with bogus messages impersonating the police. We must try to find a way to use technology effectively to communicate with protesters, while at the same time making it clear that the messages must be kept secure. The technique is a good one, which should be disseminated among police services, but it obviously needs to be secure so that police officers are not impersonated over the airwaves.
Mr. Drew: There is a need for common sense, as my hon. Friend knows from his deep involvement in the matter. One of my constituents was accused of aggravated litter picking-I am not sure whether we yet have such an offence, but that was the level to which things descended, and it did no one any good. It did not do the police any good, because it led to more potential, if not real, violence.
Mr. Dismore: My hon. Friend makes a good point. I said earlier that the series of petty incidents have a cumulative effect, and that is an example.
The Committee also recommended that if there is a lack of trust between the police and protesters, there might be a role for independent mediators to facilitate communication. HMIC disagreed, arguing that that could reduce the incentive for police to communicate with protesters and other parties affected by protests, but I am not convinced of that.
Everyone agrees with the underpinning starting point and goal of no surprises-for the police, the protesters and the targets of the protest. But how can that be achieved if the police and protesters lack sufficient mutual trust to communicate effectively, or even at all? In Northern Ireland, where I understand the concept of no surprises first originated, a long, painstaking, but ultimately successful process to build trust and develop the no-surprises approach began with the use of intermediaries.
There is also a lack of a process for dealing with genuine disagreements-about timing or route, for example. The option of going to court to challenge a police decision is a non-option; it is impractical, due to legal costs and too long a time scale. A mediator from, say, HMIC could help to resolve such problems. I urge the Minister to take another look at that recommendation. We have heard about the Spanish system, which is an effective and quick way of resolving such disputes.
Several witnesses suggested that a disproportionate police response to protests was becoming more common, in terms of police numbers, uniform and equipment. The Campaign Against Arms Trade, for example, described "significant numbers" of police attending small vigils. It stated:
"Most of the police sit in vans, not doing anything. Their presence in such numbers is...unnerving for protesters, as well as tying up a large amount of police time and resources."
The impact of officers fully kitted out in riot gear like "Star Wars" storm troopers inevitably highlights tension. It inevitably makes officers feel more aggressive and
powerful, intimidates peaceful protesters, and, in itself, can lead to violence that might not otherwise occur. We all saw the images from the G20 of protesters, hands in the air, chanting, "This is not a riot," confronted by phalanxes of officers in full riot gear who adopted an aggressive stance-indeed, some hit protesters with the edges of their shields. None of that does anything for the image of our police service.
Obviously, we do not wish to see officers or protesters hurt, but the current methods may perversely lead to that outcome, as violence might be provoked rather than dampened down. There is a lot to be learned from Northern Ireland, where senior officers led by example in policing at the front in ordinary uniform. They proved that it could be done by taking a well-considered risk in trying to avoid confrontation. I particularly commend Assistant Chief Constable Duncan McCausland of the Police Service of Northern Ireland, whom we found very impressive.
Mr. David Ruffley (Bury St. Edmunds) (Con): If I read the hon. Gentleman correctly, he is suggesting that on the mainland, not in Northern Ireland, all riot situations should be policed by uniformed officers without riot gear. Is that correct?
Mr. Dismore: No, that is not what I am saying. My position on that will become clear later in my speech. In short, the real problem at present is that there is no gradation; we either have police officers in ordinary uniform or police officers in full riot gear. There is no gradual change up or down in the policing of demonstrations. We have complete escalation and very little de-escalation. I shall describe all that in a little more detail later.
I was commending Assistant Chief Constable McCausland of the PSNI, who very much embraces the approach I am describing and demonstrated it himself to his own officers. He wrote:
"Human rights sit at the very heart of the conception, planning, execution and control of every aspect of the operations of the Police Service of Northern Ireland...Human rights is a critical benchmark by which the PSNI measures the impact of its actions."
Pre-emptive action-for example, to stop protesters reaching a target-was also criticised. All these issues are consistent with the concerns expressed by the HMIC about the need to reinforce the traditional British model of policing by consent, rather than drifting towards what it described as a paramilitary model that is more familiar overseas. I entirely share its view that an approachable, impartial and accountable style of policing by consent that is based on minimum force is preferable, and is more consistent with the human rights of those involved in protests.
Part of the problem is escalation. We see police in ordinary uniform or full riot gear-there is nothing in between to give tactical options for either a gradual increase in firmer policing, or, more importantly, for de-escalating from confrontation. HMIC called on the Home Office to "actively support" the traditional policing model based on the minimum use of force. I hope that the Minister will be able to reassure us that the Home Office fully shares HMIC's view.
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