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2 Mar 2010 : Column 875

Mr. Swire: My hon. Friend, who is being very indulgent in giving way, makes an extremely good point: many who might like to protest here over a particular issue are effectively debarred from doing so because of the almost permanent campsite in Parliament square. Might not one approach be to say that any demonstration in future should be an accompanied demonstration and that people should not just be allowed to set up camp and disappear, effectively leaving the site unmanned?

Mrs. Laing: My hon. Friend is absolutely correct. That is one possible solution. Good ideas are now coming forward-I am sure that there will be more from other parts of the House-and it is a great pity that we did not have the opportunity in Committee to explore the matter further. That would also have given the Minister a chance to put the Government's point of view. I am sure that we could have achieved a consensus. It is still my hope that we will achieve a consensus this evening because the vast majority of people who work and live in and around Parliament square want to see the current chaos removed and order put in its place. I want to see freedom of speech and the opportunity for freedom of speech for every citizen in this country, not just those who now monopolise Parliament square.

David Howarth: I am sorry to disappoint the hon. Lady, but I do not think there is consensus on the issue, and the more she spoke, the more I realised why there is not. I do not think that there is chaos outside; far from it. I have seen chaos and that is not chaos. It is untidy and annoying for people who like everything to be neat, tidy and orderly, but it is not chaos. I oppose the amendment, first, because I do not think that there is much of a problem and, secondly, to the extent that there is a problem, the means already exist for dealing with it.

Parliament is situated in the middle of a city; it is not in the middle of the countryside. One cannot expect total silence in the middle of a city. The evidence of the noise that we hear-it was accepted by the Government in their consultation exercise-showed that it was no more annoying than traffic noise. [ Laughter . ] It might be that I have lived a more urban life than members of the Conservative party; I am almost certain that I have. The idea that one cannot work in a city that is somewhat noisy would come as a great surprise to most of the inhabitants of London and all our great cities, and certainly to the inhabitants of New York. The idea that one cannot work except in total silence is extraordinary. If I think of occasions when my own work and that of my office in the precincts of the Palace has been disrupted, it has not been by protests outside but by the helicopter that we sometimes hear-whether it is a police or MOD helicopter, I am not sure-or by noise from the river traffic, which is the kind of thing that one expects if one lives and works in a major city.

To the extent that there is a problem, I cannot see why we need special protection in this House, and why we cannot use the general law. I cannot see why we should give ourselves some kind of special position legally. There are three obvious existing legal methods for dealing with any problem that arises. First, there is statutory nuisance-environmental health legislation.

Dr. Julian Lewis (New Forest, East) (Con): I wish that the hon. Gentleman were right-I really do-but that does not apply to political protests.

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David Howarth: It applies in the sense that if noise gets entirely out of hand, environmental health standards come in. If it does not apply, it will be for human rights reasons, in which case there is nothing that the amendment can do about it as it would violate the Human Rights Act and the European convention on human rights. Either way, the hon. Gentleman cannot go down that route.

Even if the statute does not apply, there is the common law of public nuisance, which has been applied to demonstrations for centuries.

Dr. Lewis: Can I tell the hon. Gentleman-not in a partisan, spiteful or exasperated way-that all these alternative remedies have been explored with Westminster council and the police, and none of them applies? None of them works. The only sanction that could ever be imposed would be to report the matter to the courts. If at the end of that there were a judgment, a fine would be paid by someone else. Nothing can be done to stop the noise other than a right of confiscation of equipment.

David Howarth: First, the hon. Gentleman seems unwilling to accept the rule of law; he wants to exempt himself from the ordinary courts. I do not see how that is acceptable. Secondly, there is already a right of confiscation of noise-making equipment-stereos and so on-under environmental health law. Many of us have been local councillors and have seen the police use this power in conjunction with environmental health officers. If it turns out that Westminster council is not very efficient, I suggest that Conservative Members should address themselves to their fellow party members who run that council.

There is a third way in which demonstrations can be brought to an end; it is if they cause serious disruption to the life of the community, as contained in section 14 of the Public Order Act. If the hon. Gentleman wants to tell me that that cannot be used, I can tell him that I have seen it myself being used at the G20 demonstration. It is not the case that there is no remedy.

I find the details of the amendment even more extraordinary. Confiscating all amplified noise equipment seems to me to amount to banning speeches at any demonstration in the vicinity of Parliament. Anyone who has tried to make a speech outside in a noisy city will know how difficult it is to make oneself heard. This seems to be a direct attempt to make sure that people cannot have their voice heard at organised demonstrations. Also, the Government picked up in their consultation that in a demonstration it is quite important for the stewards and organisers to be able to get their point across to keep order within their demonstration. Having to do that without the assistance of any amplification would make demonstrations more dangerous for the people taking part.

There is a further point. It is often said-I have heard it said from the Conservative Front Bench as well as my party's-that any power we grant will end up being abused. A power is being granted here to seize any device designed to make a noise. That could cover almost anything-buckets, balloons or party poppers, for instance. [Interruption.] The hon. Member for Epping Forest (Mrs. Laing) is looking amazed, but all those things were seized by the police in the Kingsnorth demonstration in Kent, on the grounds that they were going to be used in illegal ways. [Interruption.] The
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hon. Member for Hendon (Mr. Dismore) has reminded me of the other things that were seized. I will not recount them all, but they included clown suits. The point here is that if one grants the police a power in respect of policing protest, experience shows that that power will be abused to interfere in the right to protest. I therefore cannot go down the route the hon. Lady proposes at all; I am sorry to have to tell her that she will not find consensus in support of her proposals from my party, or, I hope, from the Labour party.

I shall now turn to the other 18 amendments in this group that were tabled by me and my hon. Friend the Member for Somerton and Frome (Mr. Heath). [Interruption.] I apologise to the hon. Member for Hendon for forgetting about his amendments-which are very moderate, I might add. The purpose of our amendments is to go in the opposite direction from the amendments tabled by Conservative Front Benchers. Our amendments would further protect the right to protest and freedom of speech.

Amendments 8 and 9 would simply remove from the Bill the whole replacement regime for the Serious Organised Crime and Police Act 2005 regime. There is no obvious need for extra powers against demonstrations in the vicinity of Parliament. However, I accept that we had a vote on that in Committee-there was no debate, but there was a vote-so instead of trying to explain why I think there is no need for this replacement legislation, I want to make a case for amendment 10, which offers a compromise between our view and the Government's.

The Government propose a system of prior restraint under which the authorities can take pre-emptive action, where they think there might be interference with access to this House. We think that it would be perfectly adequate to have no prior restraint, but instead to have powers that allow the police to ensure that access to the House is preserved-we do not think that that is absolutely necessary, but we are assuming for the purposes of this amendment that we are wrong about that. Amendment 10 removes the pre-emptive powers and replaces them with provisions for what could happen, if it turns out that access to this House is being interfered with by protest. A senior police officer would be able, but only in circumstances where the Speaker decides that reasonable access to the Palace is being prevented, to give directions to anyone organising or taking part in the demonstration to do whatever is necessary to restore order.

Mr. Andrew Dismore (Hendon) (Lab): I recall that when we discussed policing and protest in Westminster Hall on the basis of my Committee's report, the hon. Gentleman endorsed the consensus view that there should be no surprises in respect of policing and protest. Is not what he is proposing here likely to lead to that very problem of surprise action by the police? It does not encourage what he and I would like to see-negotiations between police and protestors to deal with any problems.

David Howarth: I do not agree with that, because the existence of the power would be known to both sides. The point about there being no surprises is not to do with the law; it is to do with contact, negotiation and talks between protestors and police, so that both sides know where the other stands. A power of that sort would not interfere with that process. In fact, it might encourage more contact, because it would not be a
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pre-emptive power that protestors might think would be used against them any way. It is my view that we can move forward in this area with a proportionate power to deal with any real problems that might arise, not a power that can be used pre-emptively without any real problem having yet occurred.

7.45 pm

Dr. McCrea: Why would a senior police officer be needed to protect the right of access to this House?

David Howarth: Actually, under amendment 10 it is the Speaker who decides that reasonable access has been prevented, which is a rather more traditional way of doing things, and then the Speaker gives the authorisation through a senior police officer. The senior police officer simply gets to say precisely what it is the demonstrators have to do in order to restore access. I think that ought to be a senior police officer, because this is an important interference with an important right and, as we have learned from many examples of policing protest, giving that kind of discretion to junior police officers is simply asking for trouble.

I do not want to go through the 17 other amendments, but I want to ask the Government about a particular problem that is raised in our amendments 19, 20, 30 and 31. The problem has arisen because the Government amended their own Bill in Committee without any debate. They extended by a very great extent the area around Parliament that is covered by the replacement regime. Westminster bridge is now covered, as is a large section of Whitehall. Victoria Tower gardens is covered, too, in a way that it was not covered before. I am not sure why it was thought necessary to increase the area by so much.

The Minister for Policing, Crime and Counter-Terrorism (Mr. David Hanson): That was undertaken after discussion with the House authorities, to ensure that we have appropriate access to the House in the event of a demonstration.

David Howarth: That is an interesting reply. Westminster bridge is included, as I have said. Is the idea to be able to clear that bridge in a way that was not done in the Tamil demonstration? I wonder whether the Minister's definition of access includes a very broad notion of what one needs in order to get access to the House. I have to say that during the Tamil demonstration, I did not have any difficulty getting into the House, because I came by tube, and the tube station was never blocked.

Mr. Heath: My hon. Friend may not recall this, as I do not think that he was a Member of the House at the time, but during the debates on the Serious Organised Crime and Police Act 2005, the Government's original contention involved a radius of 1 mile around the Houses of Parliament, which was excessive. That was another point on which the Conservatives and the Liberal Democrats were at one in criticising the Government, although it seems that a different view now prevails among the Conservatives.

David Howarth: Yes, it will be interesting to see whether they still hold that view. The problem for me is whether the purpose is really to maintain access to the House itself, or instead to stop demonstrations that simply annoy people to some extent.

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Let me explain one final query, which is raised by our amendment 21. Schedule 9 includes provision for the Bill's regulations to be extended beyond Parliament itself to any building that Parliament is using-I suppose an example would be a building in which a Regional Committee is meeting off site. The regulation of demonstrations that the schedule creates would exist for a week around such a building. Why opt for a week? Why not just opt for the day on which Parliament is proposing to use the building?

This approach raises a more general issue about proportionality, which is addressed in the amendments tabled by the hon. Member for Hendon, because this is another example of a power being sought that is disproportionate to the problem at hand. Why is it necessary to control demonstrations for a week when Parliament or a parliamentary Committee is meeting in a building for only one day? This debate is about the untidiness of democracy. I know that it offends some people and that some people find it difficult to cope with, but that is democracy-democracy means an untidy populace who will have their say. I do not think that we should do any more to get in their way.

Mr. Dismore: I wish to discuss amendments 24, 25 and 26, which stand in my name on behalf of the Joint Committee on Human Rights, and I draw the attention of hon. Members to our report that has been tagged for this debate. Not only were the amendments part of our scrutiny report on this Bill, but they give effect in large part to what we had to say in our report on policing and protest.

First, I shall deal with the good news from the Minister's point of view. My Committee very much welcomes the Government's decision to legislate to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 and, in particular, their decision to amend the Public Order Act 1986 to deal with protest around Parliament. Such an approach is consistent with much of the evidence we received during our policing and protest inquiry and gives effect to the recommendations that we made in our reports on this issue. As we have stated, sections 132 to 138 have proved too heavy-handed in practice, are difficult to police and lack widespread acceptance by the public. I shall not go into the detail now, because we have dealt with the matter at great length in our Westminster Hall debate on the report on policing and protest. I know that he was not able to be there because of his duties upstairs, but I am sure that he has followed the debate.

My Committee also welcomes the decision to reduce the area around Parliament in which special requirements will apply, but I, too, have concerns about the extension from 250 metres to 300 metres. What has been proposed is a more proportionate response, which is less intrusive on individual rights to freedom of association and expression than the existing arrangements. However, the overall thrust of my amendments seeks to deal with the fact that some of the proposed replacement provisions give us cause for concern as they are widely drafted and could result in legal uncertainty. One of the main thrusts of all the Committee's work on this issue over the past 18 months or so has been the importance of creating legal certainty for protestors, protestees and the police in order to create that "no surprises" environment so that everybody knows where they stand.

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The new section 14ZA (2) proposed in schedule 9 empowers a police officer to impose conditions if

they are "necessary". That is a very broad power. We understand that the intention is to issue a circular to the Metropolitan police and others containing guidance. According to a previous ministerial reply, it will state that

It was explained that the guidance will contain the considerations that the police will need to take into account before giving directions that are reasonably believed to be necessary. We know from the other work we have been doing recently that the Association of Chief Police Officers manual is being revised, so perhaps when the Minister replies he will be able to say what progress has been made on that revision, because it is urgently needed.

The Committee agrees with the Minister that it is vital that the police, parliamentarians and protestors are clear about the level of access that is envisaged, but our concern is that the "reasonable opinion" of an officer is a subjective test. That raises the risk of uncertainty as to what an individual officer will or will not deem to be "reasonable" in the circumstances, and that is a recipe for problems. It can lead to confusion for protestors, police officers and those seeking access. Again, this goes back to the point about trying to eliminate the risk of surprises, either from the demonstrators or the police, as that is what inevitably leads to some of the problems that we have seen. Our approach very much chimes with the recommendations made by the chief inspector of constabulary in "Adapting to Protest-Nurturing the British model of Policing" following the G20 meeting.

The Committee welcomes the Minister's commitment to publishing guidance, but it is important that the guidance makes clear the kind of conditions that are reasonable for an officer to impose. We desperately need there to be up-to-date and accurate guidance on policing protest in a wide variety of circumstances for police throughout the country and we urge ACPO and the Home Office to ensure that the various manuals are rapidly updated to take account of the proposed new powers in the Bill.

The second general point I wish to make concerns the order-making powers of the Secretary of State. He would be given a power to specify requirements that must be met to maintain access. One of the Committee's concerns is that proposed new section 14ZA(7) represents a non-exhaustive list. We believe that it would be far better to have a restricted list in the Bill to ensure legal certainty. Thus, my amendment 26 would remove the word "include" before

to say that those conditions should be "limited to" that route

That would create the legal certainty that we think is missing from the order-making power as it stands. As I have mentioned, we are concerned about the general power being given in this Bill to the senior police officer.

The other particular point that I wish to make concerns the distinction drawn in the Bill between public procession and public assembly. On public processions, the Bill
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contains a non-exhaustive list of conditions that can be imposed, for example on the route of the procession or which prohibit it from entering a public place. On public assemblies, however, the list of conditions that can be imposed is exhaustive-they relate to the place, the maximum duration and the number of persons that can attend. The human rights section of the explanatory notes states that

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