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4 Feb 2010 : Column 154WH—continued

The Committee also raised the issue of quasi-public spaces such as shopping malls, which the public would see as public spaces but are, in fact, privately owned
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property. This is a grey area. For example, how can we ensure respect for the rights of animal welfare activists who wish to protest outside a shop selling furs in a large, now private-formerly public-shopping area, or for the right of peaceful assembly by protesters who wish to use a council park? I saw that myself last year when a protest march against Conservative Barnet council's plan to axe sheltered accommodation wardens had to rally outside the council-owned park's gates because we were not allowed to go inside.

There can also be difficulty in differentiating quasi-public from private property. The Association of Electricity Producers strongly argued that private property such as power stations needs to be better protected from protest activity through new legislation. We were pleased to hear that the Government are working with ACPO to clarify issues around quasi-public spaces. I would be grateful if the Minister told us what work is being done on that and when we will hear more about it.

On policing proper, the police starting point seems to have been that any protest is almost certainly unlawful, to some degree. At the minimum, it will usually cause obstruction of the highway, for example. The problem is that the police, in some cases, assume that this unlawfulness should be prevented, per se, without balancing that unlawfulness with the corresponding rights to freedom of assembly and expression guaranteed by articles 10 and 11, as I mentioned earlier.

Police officers are trained to use their discretion when conducting ordinary police work-whether to arrest someone or just give them a telling off, for example-but that does not seem to apply in matters relating to demonstrations. The basic discretion of the police officer needs to be used better in policing protest. A good example of this was the Tamil protest last year. There was a lot of obstruction, but little trouble. That indication of a change of approach was welcome. Of course, that protest created great inconvenience, including to people in the House, but in the end it was dealt with fairly.

On the general legal policing framework, our main concern is that there are too many broadly defined powers available to the police that can be used to restrict protest unfairly and unnecessarily. In scrutinising legislation, we have often been critical of the Government for relying on the argument that broad powers are consistent with the Human Rights Act because all public authorities must act compatibly with it.

I will argue later that police training in human rights has clearly been inadequate. In addition, the Government's approach puts the onus on those whose rights have been infringed to pursue matters in the courts. This is the wrong way round; legislation should be drafted in precise terms to make the parameters of police powers clear, both to the police and the public.

Mr. Ruffley: What does the hon. Gentleman think the optimal amount of hours for training on human rights should be for police officers?

Mr. Dismore: The hon. Gentleman approaches the matter from the wrong direction. There is an assumption, in relation not only to policing, but to the public services in general, that human rights training is some compartmentalised thing that should be taught separately. That is the wrong approach.

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Human rights training should be part of the ordinary training, instruction and education of anybody in public services. It should be a theme running through existing training and education, and should not be taught separately. If it is to have an impact it has to be in the right context. The context is where a particular issue arises. So when we talk about public order training, about which I will say a little more later, we should stress that human rights should not be taught separately from that, but should be part of it.

I should like to mention the abuse of counter-terrorism powers, which is of particular concern to our Committee. During our inquiry, the use of section 44 of the Terrorism Act 2000 was already subject to review because of widespread concerns that the power was being overused. Although there might be circumstances in which a protest could conceivably be used to mask a terrorist attack or be a target of terrorism, we received no evidence at all to suggest that that had happened or was even likely. In our view, counter-terrorism powers should not be used against peaceful protesters. That view was also expressed on a number of occasions by successive Ministers and senior police officers when appearing before the Committee. Nevertheless, section 44 was still being misused.

Last month, the European Court of Human Rights ruled in the Gillan case that the section 44 power was incompatible with the European convention. In that case, a protester and a journalist were stopped and searched outside an arms fair at the ExCeL centre. Neither could reasonably have been considered terrorists.

The Walter Wolfgang case is another example. I have known Walter Wolfgang for decades and I do not think that anyone could ever consider him to be, in any way, shape or form, a terrorist-[Interruption.] A bit of a nuisance, yes; but a terrorist, no.

The Government are appealing and I would be interested to know from the Minister what legal grounds there are for appeal and why she thinks the appeal might succeed. In my view, the appeal has little chance and she will need to reform the law when she returns to office after the election.

We also heard evidence that the new offence of taking and publishing a photograph of a police officer, under section 76 of the Counter-Terrorism Act 2008, is being abused. The offence is meant to relate to people committing or preparing an act of terrorism, but we have all heard examples of journalists and others being prevented from taking photographs of police officers or buildings and asked to hand over equipment, even though the current guidance makes clear that section 76 is

and does not prevent the legitimate taking of photos.

Harassing Japanese tourists taking photos of Parliament from across the river does little to enhance the image of the police or our country as a holiday destination. ACPO is agreeing new guidance with the National Union of Journalists. Perhaps the Minister will inform us about how the Home Office will monitor whether the new guidance proves effective.

Going beyond section 44, stop and search is also a key issue. Kent police have now admitted to misusing the PACE stop and search power in dealing with the Kingsnorth protest. Children as young as 11 were subject
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to stop and search, and it is difficult to see what the grounds for "reasonable suspicion" might have been in those cases.

We heard numerous reports of personal data being recorded unnecessarily in an unlawful fishing expedition to gather intelligence about protesters' identities and we heard about items-ranging from a walking stick to a camp chair and including, most bizarrely of all, a clown suit-being confiscated from peaceful protesters. I find it hard to visualise a protester who has misbehaved successfully running away from the police, perhaps squirting water at a police officer from a fake flower buttonhole, wearing oversized giant clown shoes.

A similar abuse of power is the taking and retention of photographs. Last year, the Court of Appeal ruled that that was contrary to the Human Rights Act if the person photographed is not suspected of committing an offence. HMIC also raised concerns about the role of forward intelligence teams, which are increasingly used to photograph protesters.

All the cases that I have mentioned provide evidence that police forces are cavalier in their use of these broadly defined powers, with disregard of individuals' human rights as a consequence.

One of the most important legislative defects that we identified concerns the policing of protest around Parliament, a subject with which all hon. Members are familiar. When the Serious Organised Crime and Police Act 2005 was passed, it was intended to give teeth to the sessional resolutions passed in both Houses about maintaining access to the parliamentary estate at all times and to provide the police with the power to remove Brian Haw from Parliament square. It has manifestly failed on both counts.

Nevertheless, the 2005 Act succeeded in criminalising far too many peaceful protesters who refused to give advance notification of their protests to the police. That was counter-productive and disproportionate. It is not possible to force people to talk to the police and some who may otherwise have done so now refuse to do so under compulsion, on principle. This bad law led to confrontation and the criminalisation of peaceful protests.

The most notorious such case was that of Maya Evans and Milan Rai, who were prosecuted for reading aloud at the Cenotaph the names of British soldiers and Iraqi civilians killed during the conflict in Iraq. Moreover, the law was not applied consistently. The police had discretion if certain things were, in their view, a publicity stunt. For example, a gang of Tories dressed as Father Christmases with Gordon Brown masks was allowed to picket without notice at Downing street without being arrested. I suggest that the police got things the wrong way round. What those Tories did sounds far more like a demonstration to me than the reading out of the names, which sounds more like a publicity stunt to draw attention to the 2005 Act and its shortcomings.

Dr. Harris: The illegal war.

Mr. Dismore: Putting aside the question of the legality of the war altogether, the Tamil protest is another example. The police had to tolerate it because the protesters' tactics gave them little real operational choice. We recommended that the relevant clauses of the 2005 Act should be repealed and replaced with amendments
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to the 1986 Act intended to ensure that the police had powers to deal with anyone seriously impeding access to Parliament. We were pleased that the Government accepted this recommendation and introduced amendments to the 1986 Act in the Constitutional Reform and Governance Bill. We made some detailed comments on the Government's proposals in our report on the Bill and I tabled amendments on behalf of the Joint Committee to be debated during the Public Bill Committee. The Government also tabled amendments which specified the entrances to Parliament to which the police must maintain access and increased the area in which the new regime is planned to operate.

Although this issue has been extremely controversial outside Parliament and has been debated on numerous occasions inside the House in recent years, has been the subject of several Select Committee reports, and directly affects Members of Parliament and everyone else involved with this building, the programme motion prevented there being any debate whatsoever on the Government's new proposals or our amendments, or amendments tabled by other hon. Members in the Public Bill Committee. It is completely unacceptable for contentious legislation on such an important issue to be made in this way.

David Howarth: The hon. Gentleman makes a good point, especially in light of the fact that the Government previously explained their failure to make progress on the issue by saying that they needed time to ensure proper parliamentary scrutiny, which they then proceeded to prevent.

Mr. Dismore: The hon. Gentleman makes his point. I hope that the Minister will explain the rationale behind the amendments, because we had no explanation on the Floor of the House, and perhaps she will reassure us that time to debate these matters will be found on Report. Given that we are weeks away from Dissolution, is she confident that these provisions will reach the statute book before then?

Dr. Harris: The hon. Gentleman has drawn attention to a real problem to do with debating laws such as this: we do not have time to debate them and are not given the chance to do so on Report in the House of Commons. The Minister knows that this matter was dealt with in the Wright Committee report. The solution to this matter-it is within the scope of the issues that we are discussing-is to accept and support the recommendations of that Committee. The Minister should say that her job would be made easier if the powers that be allowed the House to debate fully and endorse those recommendations.

Mr. Dismore: I will not be drawn down that byway.

Mr. Ruffley: You should.

Mr. Dismore: Not today. The point is clear. When we talk about important provisions covering protests around Parliament, which go to the core of our democracy, it is not fair or appropriate to have no debate on the Floor of the House, or in Committee. That can be rectified on Report, and I hope that it will be. We spent a whole day in Committee arguing about ratification of treaties, which is an important matter, and the net result was that we had no time to deal with this matter, yet the debate went short the following day. It was bizarre that we could not debate it then.

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On police tactics and training, it is now generally accepted that public order training and guidance does not adequately take account of the human rights issues associated with policing. We were pleased to hear that ACPO guidance is being redrafted, that the Home Office is producing a code of practice and that there is to be specific training not just for officers in riot control, but-of equal, if not greater, importance-for police commanders at all levels. Command training is essential.

I agree with the general plea from the police that the guidance must be a workable, easy-to-use document with clear principles, not a telephone directory or a manual prescribing precisely for every conceivable circumstance. The police need discretion, but that discretion needs clear and user-friendly guidance if it is to work. The Home Office has talked of publishing guidance for consultation in the spring; perhaps the Minister will tell us how the election will affect that timetable, and assure us that time will be found for parliamentary engagement on this important issue.

On particular aspects of police practice, we yet again saw evidence during the G20 protests of some police officers not displaying their identification numbers, and refusing to identify themselves when asked. Identifying police officers is essential to ensure that they are accountable for their actions. We recommended that displaying identification numbers or providing identification on request should be a legal requirement for police officers. The Government's response was to agree with our view on the importance of police identification, but to maintain the current position-that identification is a disciplinary rather than a legal matter. We remain unpersuaded. Making identification a legal requirement would send a strong signal to officers about the importance of this issue.

The Home Office suggested that failure to provide identification was a rare problem, and that may be so, but when it occurs, or is reported, it is in the most controversial and extreme circumstances, such as the fatal incident at G20 or the Countryside Alliance protest outside Parliament, going right back to the death of Blair Peach. Will the Minister provide us with some figures on the frequency of complaints and consequent disciplinary action on this issue, and update us on the long-awaited and now promised publication of the Cass report on the death of Blair Peach?

I have mentioned journalists on a number of occasions. Individual officers often seem to be unaware of the special position of journalists in reporting rather than participating in protests. I hope that the new guidance will tackle that problem better than the existing ACPO police-media guidelines. The NUJ said that they were

Journalists complain of police surveillance, denial of access to protests to report them, being pushed into demonstrations as protesters, which they are not, being refused permission to leave, being caught in the kettle and failure to recognise their press cards. They have been refused permission to photograph police officers under the erroneous interpretation of section 76 of the Counter-Terrorism Act 2008, which I previously described. Intensive media reporting is a challenge to the police, and we commented in our second report on how the
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media had talked up the prospect of violence at the G20 protests. The police need better media relationships and strategies for major protests, and a good start is to recognise the legitimate role of journalists in reporting them.

Finally, the containment tactic, kettling, has been the subject of much debate. We concluded, and were criticised for this, that it could be a useful tactic, but only if used proportionately, when absolutely necessary, and in accordance with human rights principles; for example, to stop violent protesters from dispersing through a city. So far, however, the tactic has been deployed without regard to the rights of contained individuals, who have included not just peaceful protesters, but bystanders, such as Ian Tomlinson, with fatal results.

At G20, we heard of a diabetic who was not released when he needed insulin. The carer of his 83-year-old mother was held in the kettle and not allowed to go. Someone with a broken arm was allowed out only unaccompanied. There were many other cases. We heard of the crowd being charged and pushed back by police, but with nowhere to go back to. The root of the problem seems to be that the police see the crowd as an amorphous mass of trouble, rather than as a gathering of individuals, each with his or her own separate human rights, and for whom different considerations may apply from person to person.

We share the views of the HMIC that police commanders must be trained to use containment flexibly as a crowd control tactic; there must be a strategy for releasing people who do not pose a threat of violence; and facilities such as water, toilets and medical assistance must be provided to those contained for several hours. I accept that that creates immense challenges for the police, so I would like to hear the Minister's view on how kettling can be operated while respecting individual rights.

Mr. Ruffley: Does the hon. Gentleman believe that word "kettling", which is in the public domain, is pejorative and not greatly to the police's advantage when they try to explain what they do? Does he agree that we should try to avoid that term of art?

Mr. Dismore: The hon. Gentleman will be aware that the police use the word "containment" and that protesters use the word "kettling". Part of the problem is communication and people using different language. It would be hard to persuade protesters to use the word "containment" instead of "kettling". If the hon. Gentleman reads my speech in Hansard, he will see that I have used both words, not quite 50:50, but not far short. I hope that my communication will get through to both sides.

In conclusion, the police have a difficult job in handling major public order incidents.

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