Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 2: protests

10._Parliament Square has a special significance as a place to express political views near the seat of our democratic system, as well as its UNESCO World Heritage setting. The task of balancing public protest against maintaining the proper functioning of Parliament has historically been addressed by Sessional Orders in the House of Commons, with equivalent Stoppages Orders in the House of Lords. They instruct the Metropolitan Police Commissioner to make sure that passageways to and from Parliament are kept free from obstruction and disorder on all sitting days. Although the Orders do not give the police additional powers, there has been a statutory framework aimed at regulating protests as far back as the Tumultuous Petitioning Act 1661. In more recent times, the Public Order Act 1986 has set out the main provisions regulating marches and assemblies across Great Britain.

11._In 2003, the House of Commons Procedure Committee carried out an inquiry into the adequacy of Sessional Orders and the police powers available to manage protests around Parliament. The Committee took into account the permanent protest of Mr Brian Haw directly opposite Parliament since 2001. It also heard evidence from the Metropolitan Police Commissioner, the Parliamentary Authorities and Members of Parliament. The Committee recommended the discontinuance of Sessional Orders and the introduction of new legislation to prohibit long-term demonstrations and to ensure access. It also recommended controlling disruption from loudspeakers either through existing regulation or, failing that, through the introduction of new legislative powers.[6] Following a consultation on police powers the Government concluded: "existing legislation has not provided the police with all the powers they need to control protests and demonstrations", including in relation to the security threat to Parliament.[7]

SERIOUS ORGANISED CRIME AND POLICE ACT 2005

12._The Government's conclusion led to the introduction of sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (SOCPA). The provisions require the organisers of any demonstration to obtain prior authorisation from the Metropolitan Police Commissioner, who can impose a range of conditions where necessary to meet objectives such as maintaining access and preventing a security risk. A protestor who knowingly fails either to obtain authorisation or to comply with a condition is guilty of a criminal offence. The Act also makes it a criminal offence to use a loudspeaker within the designated area, subject (in broad terms) to permission being granted by Westminster City Council. The House of Commons no longer passes Sessional Orders, following the introduction of these provisions, although the House of Lords has continued to pass its equivalent Stoppages Orders.

13._The SOCPA provisions have been strongly opposed for failing to achieve an appropriate balance between the right to protest and the proper functioning of Parliament. For instance, a series of mass lone demonstrations highlighted concerns about the law applying to lone protestors, together with the restriction on spontaneous protest resulting from the prior authorisation requirement. The need for prior authorisation has also led to widely publicised incidents such as the arrest of Miss Maya Evans and Mr Milan Rai outside Downing Street for reading out the names of civilians killed in Iraq. The level of police discretion in the interpretation of what constitutes a "demonstration" has also provoked concern. However Liberty's Legal Director, Mr James Welch, has stated that the single greatest "chilling effect" resulted from the introduction of a "criminal sanction as a penalty for getting it wrong" within a framework that was neither "understood" nor viewed as "justified".[8] Nor has SOCPA succeeded in its objective of banning long-term demonstrations. Baroness Miller of Chilthorne Domer introduced a Lords private member's bill in the 2006-07 session of Parliament to repeal the SOCPA provisions.

THE REVIEW OF SOCPA

14._In July 2007, The Governance of Britain Green Paper set out the Government's intention to review the current law "with a view to ensuring that people's right to protest is not subject to unnecessary restrictions".[9] The Government's subsequent consultation, Managing Protest around Parliament, produced 512 responses, of which a significant majority called for the SOCPA provisions to be repealed without any replacement provisions being introduced.

15._Clause 1 of the Draft Bill repeals sections 132 to 138 of SOCPA, with the effect that static demonstrations around Parliament will return to being governed by the Public Order Act 1986. The White Paper invites Parliament to consider whether additional provisions might be needed to ensure free and open access or to prevent, for example, excessive noise disrupting the workings of Parliament. This is subject to the presumption expressed by the Home Office Minister, Tony McNulty MP, that "there should be as free and unfettered right to protest and demonstrate in the Square as possible." (Q 502) The Metropolitan Police Service has also led calls for Parliament to articulate clearly the level of access that is required and the types of behaviour that are unacceptable in order to establish a framework that creates certainty for protestors, the police and Parliamentarians alike.[10]

16._The evidence that we have received consistently supported the repeal of the SOCPA provisions. For instance, Baroness Mallalieu QC, President of the Countryside Alliance, described them as "too restrictive" while also being "ill-defined and hard to implement on a practical level". (Ev13) JUSTICE stated that they had "proved contentious, disproportionate and all too susceptible to ridicule". (Ev45 para 3) Mr McNulty maintained that many of the criticisms were based on a misunderstanding of SOCPA, but he concluded that "time has moved on and it is both right and appropriate that we reflect on both the legislation and other circumstances, including the security provision now around [Parliament]". (Q 489)

17._The evidence to us has been much less consistent in relation to whether replacement provisions of any kind are necessary. The Metropolitan Police Service has called for a number of the key components of SOCPA to be carried forward into new legislation, failing which it argued that the police would be unable to manage protests effectively.[11] Others such as Liberty and Bindmans solicitors, who have previously represented Brian Haw, stated that existing non-SOCPA legislation gives the police and other authorities all the powers that are necessary. (QQ 225, 235, 250, 254)

GENERAL CONSIDERATIONS

18._Mr Andrew Dismore MP, Chairman of the Joint Committee on Human Rights, highlighted the importance of taking into account fundamental human rights, particularly the freedom of peaceful assembly under Article 11 of the European Convention on Human Rights. He referred us to a recent judgment of the European Court of Human Rights, stating that: "[i]n view of the essential nature of freedom of assembly and its close relationship with democracy, there must be convincing and compelling reasons to justify an interference with this right."[12] As Mr Dismore explains, "this is a high threshold and does not permit restrictions which are merely convenient or helpful". (Ev78)

19._Democratic Audit has warned that any special provisions applying to the area around Parliament would send a message that "the convenience of Parliament [takes] priority over basic human rights of speech and protest." (Ev04, para 69) In contrast, other witnesses such as Mark Ryan, a constitutional law lecturer, highlighted the special constitutional significance of Parliament as sufficient reason to introduce special measures where necessary. (Ev36, para 6) The Clerk of the House of Commons also made us aware of other jurisdictions where legislation had been introduced to protect the functioning of their Parliaments, including Canada, Australia and Germany. (Q 455, Ev2A, para 1)

20._Responsibility for managing the area around Parliament Square is divided. The Metropolitan Police Service has the broadest role, with overall responsibility for the policing of protests and the security of Parliament. The central part of the square is formally Crown property, but is managed by the Greater London Authority (GLA) under a byelaw that prohibits unauthorised protest, camping and the use of loudspeakers.[13] Westminster City Council (WCC) has the role of authorising the use of loudspeakers under the current arrangements. It is also responsible for the pavement to the south and east of the central part of the square, which is where the current permanent protest is taking place.

21._Plans have been announced to redevelop Parliament Square as part of the World Squares For All initiative which would impose new traffic management measures to pedestrianise the Square. However, there have been recent reports that these plans are being reviewed.[14] The GLA stated that the plans must be taken into account as part of the review of SOCPA, particularly given the estimated 34 million pedestrians per year who would visit the Square were the new traffic management measures in place. (Ev14, para 10) The GLA also raised the possibility of the byelaw being reviewed as part of the redevelopment exercise. (Ev14, para 15; Ev14a, para 6) The Campaign Against Criminalising Communities, amongst others, drew a link between the scope of the byelaw and the meaningful review of SOCPA: "If the police can rely on the local authority to impose the same type of restrictions, the repeal of SOCPA powers … will have little effect". (Ev37)

22._Finally, during our inquiry we also took into account the enduring amenity value of Parliament Square as a cultural and tourist attraction of international significance. We agree with the GLA that Parliament Square "should provide a symbolic and dignified setting for Parliament and the surrounding historic buildings, in keeping with its World Heritage setting. It should be both accessible and meaningful to Londoners and visitors". (Ev14, para 1)

23._The restrictions on protest around Parliament that were introduced by sections 132 to 138 of the Serious Organised Crime and Police Act 2005 have met widespread opposition. We agree that these provisions should be repealed. The Government has sought the views of Parliament about whether replacement provisions of any kind are necessary.

24._We strongly endorse the general presumption that protest must not be subject to unnecessary restrictions, particularly given the significance of Parliament Square as a place to express political views. At the same time, the right to protest must be balanced against ensuring that the police and other authorities have adequate powers to safeguard the proper functioning of Parliament and to protect the enduring amenity value of Parliament Square as a cultural site of international significance.

25._We acknowledge the need for Parliament to be clear about the level of access that is required, as well as the extent to which other considerations must be taken into account, including disruption from noise, and security.

26._If the redevelopment of Parliament Square proceeds, it could result in a major increase in the use of the site by the public and a possible extension of the Greater London Authority's byelaw that governs its use. We support improved pedestrian access to Parliament Square. However, we are concerned that the Government is viewing the potential redevelopment and the possible extension of the byelaw as an issue for the future rather than as a part of the current review. This is problematic since they both affect the right to protest in Parliament Square and they should be looked at together.

27._The following sections of this Chapter consider what, if any, additional provisions are viewed as necessary upon the repeal of sections 132 to 138 of SOCPA.

Access

28._Section 134 of SOCPA gives the police a power to impose conditions on demonstrators in order to prevent "hindrance to any person wishing to enter or leave the Palace of Westminster". If this provision is repealed the police will continue to have a number of powers, including:

to arrest individuals who wilfully obstruct the highway;[15]
to impose conditions on the place or duration of an assembly that risks causing a serious disruption to the life of the community;[16] and
to issue directions to protestors either to disperse or to stop causing an obstruction.[17]

29._Liberty and Bindmans, amongst others, maintained that these powers were adequate to ensure access, with particular emphasis being placed on the offence of obstruction. (QQ 225, 231, 236, 238, 239) Baroness Mallalieu highlighted the range of entrances to Parliament that could be used during the "very rare occasions" on which access was disrupted, while Milan Rai added that in practical terms there was no type of power that could address situations where "a section of a demonstration has formed the state of mind to create an incident". (Ev13, Q 243)

30._However, the Metropolitan Police Service stated that its powers were "very limited", based on its view that conditions could only be imposed in "extreme circumstances" and a general concern that the power to issue directions, drawn from an Act of 1839, was potentially open to challenge as being incompatible with human rights legislation. (Ev61, QQ 334, 339) The offence of wilful obstruction was also considered to be ineffective:

"an obstruction of the highway must be not only wilful but also unreasonable before it will be unlawful. By way of example, it could be said that a march of 50,000 protestors going past Parliament to protest about an issue that is being debated in the House, is not an offence, as although it is causing an obstruction, it is reasonable in the circumstances … A better legislative framework is required so that police can effectively and proportionately balance the competing interests in the planning stage of a protest, as well as during the event." (Ev61)

31._The Clerk of the House of Commons favoured the introduction of new powers to ensure "pavements and roadways adjacent to Carriage Gates, St. Stephen's Entrance, Peers Entrance and Black Rod's Garden Entrance" were kept clear of demonstrators. (Ev02, para 18) The Serjeant at Arms and Black Rod proposed an outright ban on protest along the strip of pavement and roadway running along the front of the Houses of Parliament and Portcullis House, as identified in Appendix 4. (Q 475) This followed a cautionary warning from Deputy Assistant Commissioner Chris Allison that "If Parliament does not decide that, the reality is there will be occasions when there will be protests there because there will not be reasons for me or my colleagues to be able to say no to that particular protest". (Q 309)

32._The proposal was opposed by Tony McNulty as being inconsistent with the general presumption in favour of free protest around Parliament. (Q 496) He stated that access could be ensured by "a simple power for police to impose conditions on demonstrations to prevent obstruction".(Ev79) Professor David Feldman, Rouse Ball Professor of English Law at Cambridge University, was also cautious about a blanket ban, but considered that it might be compatible with human rights legislation provided the entrances were carefully selected to address real problems with access and that there were sufficient remaining areas in which to protest. (Ev66, paras 12-16) Dr Eric Metcalfe, Director of Human Rights Policy at JUSTICE, favoured the police being given a power "in times of very vigorous protest, for example, to establish a cordon to ensure that the driveways around Parliament and the public access, the footpath on the Parliamentary side of Parliament Square, remains open" with at least "one viable route" of access at all times.[18]

33._A majority of witnesses accepted that Sessional Orders and Stoppages Orders should be abandoned as a way of ensuring access and regulating protests. While a minority considered that it might be possible to update the language of the Sessional Orders, the Clerk of the House of Commons told us that, if the police had adequate powers, the Orders were "otiose", but if the police did not, they were "misleading". (Ev2a, para 7) Professor Feldman doubted whether the Orders provide a "sufficiently solid legal basis" to regulate protests in a way that was compatible with the European Convention on Human Rights. (Ev66, para 4) The Home Office also argued that they had "no effect beyond the walls of Parliament". (Ev57, para 12)

34._There was also opposition to days when Parliament was sitting being treated in a different way to non-sitting days, given the continuous use of Parliament and the need to create a consistent framework that was clear for all concerned. For instance, Mr McNulty stated: "there are [individuals] who will want to access the House during periods of recess, either to visit, or in many cases to carry on with their work". (Q 498)

35._As a general rule there should be unrestricted access to the Houses of Parliament for Members, staff and the public, but there must also be a willingness to accept some disruption during large scale protests. As a minimum, there should be one point of entry at each end of the Houses of Parliament open to both pedestrians and vehicles, particularly to enable disabled users to gain access. Our provisional view is that Black Rod's Garden entrance and the main entrance to Portcullis House are best suited to accommodate pedestrian access, while Carriage Gates and Peers Entrance are the most appropriate for vehicles.

36._In light of the conflicting evidence that we have received during our inquiry, we are concerned that the police may not have adequate powers upon the repeal of SOCPA to maintain the level of access that we call for above. We urge the Home Office to work with the police and other interested parties to resolve this issue. However, we are not persuaded that it requires an outright ban on protest along the strip of pavement and roadway outside all the main entrances of Parliament.

37._The legal framework regulating access should apply to sitting days and non-sitting days equally, given the continuous use of Parliament and the need to create certainty for all concerned. At the same time we recognise that protests are less likely to cause disruption to the proper functioning of Parliament at weekends or during recesses, and this should be taken into account in the practical application of any resulting legislation. The Sessional Orders do nothing to enhance police powers and we recommend that the House of Lords Stoppages Orders should be discontinued and that the House of Commons Sessional Orders should not be reintroduced.

Noise

38._Section 137 of SOCPA prohibits demonstrators from using loudspeakers, subject to prior authorisation from Westminster City Council. Section 134 gives the police an additional power to impose conditions on the maximum level of noise to prevent "hindrance to the proper operation of Parliament". If these provisions are repealed there will be no prohibition on the use of loudspeakers, other than the general restriction that applies nationally between the hours of 9pm and 8am under the Control of Pollution Act 1974. Nor does the general framework that, in most circumstances, would be used to address "statutory nuisances", apply in relation to noise from political demonstrations.[19]

39._The majority of responses to the Government's consultation, Managing Protest around Parliament, stated that the current limits on loudspeaker use were too restrictive and undermined the ability of protestors to co-ordinate themselves.[20] Baroness Mallalieu also highlighted the value of being able to use loudspeakers as part of orderly demonstrations, while Professor Feldman stated that their use is part of the right to free speech. (Q 246, Ev66, para 23)

40._In contrast, strong concerns have been expressed within Parliament about the level of disruption caused by loudspeakers, particularly for Members of Parliament and staff with offices facing onto Parliament Square. For instance, the Serjeant at Arms told us that there were "a lot of complaints from Members obviously in 1 Parliament Street, in meetings in Westminster Hall, in the Chamber sometimes, and in committee rooms, and it is more about the persistent offender with the loudhailer than it is for a two-hour demonstration in the afternoon where there is a message being got across". (Q 462) In addition, Dr Julian Lewis MP submitted a response to the Government's consultation attaching complaints from 52 other Members of Parliament and staff:

"it cannot be justifiable for [rights] of democratically-elected Parliamentarians and their staff to be overridden by the determination of groups who disagree with them, no matter how passionately, to promote their cause by creating incessant din and disturbance".[21]

NON-SOCPA NOISE POWERS

41._We have been made aware of a variety of legal provisions that might apply in the event that the noise control powers under SOCPA are repealed:

the power to impose conditions on the place or duration of an assembly that risks causing a serious disruption to the life of the community;[22]
the offence of causing "harassment, alarm or distress" together with other similar offences under trade union legislation;[23] and
the power to issue directions to protestors who are using "noisy instruments".[24]

42._Liberty, Bindmans and the Countryside Alliance stated that these powers were adequate, particularly given their view that police should only have the power to intervene where the level of disruption was "serious" or otherwise constituted "harassment". (Ev13, QQ 250, 251, 254)

43._Other witnesses were not persuaded that the non-SOCPA provisions were adequate. Professor Feldman stated that the power to impose conditions under the Public Order Act 1986 would not provide "a reliable or comprehensive" means of controlling noise. (Ev66, paras 16-20) The Home Office told us that where there was an assembly with a minority of individuals causing noise, "the only option would be to tolerate the loudspeaker, or to limit the whole assembly. There may be questions about whether limiting the whole assembly is a proportionate response to loudspeaker noise". (Ev57, para 54) We are also aware that conditions cannot be imposed to regulate loudspeakers used by a collection of individuals protesting separately, since the power is limited to assemblies of two or more people. (Q 278) In addition the police and, to a lesser extent, the Home Office have highlighted the legal and practical challenges of relying upon harassment provisions. (Q 353; Ev57, paras 29-31) The police also expressed concern that the power in the Metropolitan Police Act 1839 to issue directions was open to challenge on human rights grounds. (QQ 334, 339)

44._Mr McNulty described the non-SOCPA powers as "not terribly strong" but sufficient, given his view that noise was an "irritant but no more than that". (QQ 502, 504) He explained that the University of Oxford has taken out injunctions relating to the use of loudspeakers and that they have "worked well". (Ev79, Ev80) He also acknowledged the depth of concern about disruption from noise and expressed his commitment to work with the Parliamentary Authorities in relation to this issue. (QQ 493, 496, 504)

POSSIBLE LEGAL FRAMEWORKS

45._We heard a number of suggestions for a new legal framework to control noise around Parliament. Westminster City Council supported an outright ban on loudspeaker use, although Professor Feldman stated that this would "face problems in relation to the proportionality of a necessity for the interference with freedom of expression". (Ev66, para 23) As an alternative, Westminster City Council and others have suggested that the police be given a power to limit maximum noise levels, accompanied by a power to confiscate sound equipment. Professor Feldman told us that an upper noise limit would present "no serious difficulty" from a human rights perspective, but he acknowledged "the practical difficulties involved both in selecting an appropriate level and in policing it". (Ev66, para 24) Those practical difficulties were also highlighted by Deputy Assistant Commissioner Allison and Mr Dean Ingledew, Director of Community Protection, Westminster City Council. (QQ 337, 338)

46._The Metropolitan Police Service proposed a statutory noise limit "monitored by … Westminster City Council" which would need "powers of seizure for those found exceeding this limit". (Ev61) Mike Schwarz, of Bindmans, told us that a power of confiscation would mark a "serious inroad into human rights" particularly without "due process" for the individual concerned. (Q 251) However, Professor Feldman considered that such a power was likely to be compatible with human rights legislation, provided the individual was given an opportunity to review "the legality of the confiscation before an independent and impartial tribunal" and provided that the failure to authorise the use of the loudspeaker was itself lawful. (Ev66, para 26)

47._The Serjeant at Arms proposed that, where there was "repeated complaint by people being disrupted and harassed" the police should have power to "seize the loudhailer after due warning or to move the person away. I do not think it is the noise level that should bring those powers into action; I think it is when there is sufficient complaint". (Q 463) However, Mr McNulty stated that it was best left to the Home Office to work with the police and Parliamentary authorities to develop a "coherent framework". (Q 509)

48._We accept that all demonstrations have the potential to create noise and that the reasonable use of loudspeakers should be allowed in the area around Parliament. Depending, however, upon the time of day and the level of background noise from traffic, there are exceptional occasions during which the duration and volume of noise from loudspeakers causes serious disruption to large numbers of Members, staff and others within Parliament. There is a need either to develop or make better use of existing powers to ensure that in those exceptional cases the police or other authorities can control noise, including the use of loudspeakers by both groups and individuals. While a range of approaches have been suggested to us, we welcome the Home Office Minister's commitment to work with the Parliamentary authorities and others to develop a "coherent framework". As a minimum, there should be a statutory power to move an individual, or to confiscate sound equipment.

Permanent protests

49._As we noted above, Brian Haw has staged a permanent protest opposite the Houses of Parliament since 2001. An unsuccessful attempt was made by Westminster City Council in 2002 to remove him on the grounds that he was causing an unlawful obstruction of the highway.[25]

GENERAL CONSIDERATIONS

50._The 2003 Commons Procedure Committee report recommended the introduction of new legislation to prohibit "long-term demonstrations", on the grounds that they "limit the number of demonstrations and undermine the aesthetic and environmental value of Parliament Square as an important heritage square".[26] SOCPA has not resulted in such a prohibition. Deputy Assistant Commissioner Chris Allison told us that there was no justification for using existing SOCPA powers to limit the duration of demonstrations, and added that he was "certainly not asking for" such a power. (Q 318)

51._The presence of the permanent protest has divided opinion within Parliament, although there appears to be a majority against. For instance, in 2003 43 MPs backed an amendment to the Anti-Social Behaviour Bill, tabled by Graham Allen MP, to give the Secretary of State a power to require individuals "forming part of any permanent or semi-permanent group on Parliament Square should be dispersed".[27] In response, 24 MPs signed an Early Day Motion in support of Brian Haw's permanent protest.[28]

52._Mr McNulty told us that an outright ban on permanent protest was unlikely to be lawful: "there is almost, to use the planning lexicon, an established use there; for instance, the particular individual has been there for some time". However, he added: "I am not sure I would want 15 static long term demonstrations in the Square". (QQ 510-512, 515) Professor Feldman argued that ensuring access to Parliament and preventing disturbance from noise could be a legitimate basis for a ban, but "there appears to be no evidence that a permanent protest is disrupting, or is likely to disrupt, the efforts of the two Houses of Parliament and their Members to exercise their democratic functions". (Ev66, para 8)

53._Mr McNulty also noted the potential impact of the proposals, which we have described above, to redevelop Parliament Square and re-configure the traffic: "Until we do get some sort of reconfiguration of the public highway and the traffic around the Square, we are stuck with [the current encampment] … I do not think much is going to change unless the configuration of the whole Square is going to change". (QQ 510-511) But he noted the practical difficulties of differentiating between "consecutive temporary demonstrations" and a permanent protest. (Ev 79)

54._We also heard evidence on three specific aspects of permanent protests: their visual impact, the extent to which they prevent other demonstrations taking place, and the security risks they created.

VISUAL IMPACT

55._The Clerk of the House of Commons called permanent and overnight protests "unsightly" and said they "may cause additional difficulties as more pedestrians are attracted to Parliament Square as a result of proposals on World Squares". (Ev02, para 20)

56._We acknowledge the deep concerns that have been expressed that the unsightly appearance of semi-permanent encampments detracts from the visual aspect of Parliament Square. However, the Joint Committee on Human Rights has concluded that this would not be a legitimate basis for introducing a ban on permanent protests.[29] Deputy Assistant Commissioner Chris Allison also told us that it should not be for the police to make "arbitrary decisions" about the appearance of a protest: "I do not see that role for the police at all". (Q 312)

IMPACT ON OTHER DEMONSTRATIONS

57._There has been some comment to the effect that a permanent protest can restrict other demonstrations. For instance, Dr Julian Lewis MP told the Government's consultation that he was opposed to individuals "seeking permanently to colonise a public place and to deny the use of it as an amenity to other members of society—or for that matter to other would-be protesters."[30] Mr McNulty thought that a static demonstration "may well conflict" with other demonstrations, noting that it was important "to balance all these competing rights and responsibilities that go with them". (Q 512) He also felt there was a need to "seriously reflect" on the possible conflict between a static permanent demonstration and other demonstrations. (Q 511)

58._However, Baroness Mallalieu told us that she was not aware of any other individuals having been prevented from demonstrating as a result of Mr Haw's permanent protest, while Mr Schwarz noted that there was no evidence of a "conflict in terms of time or space or politics between protesters". (QQ 256, 265) We note that the Chairman of the Joint Committee on Human Rights, Andrew Dismore MP, raised one example of such a conflict during a recent evidence session of the Joint Committee.[31] In response, Mr Welsh of Liberty described this as a "one off case".[32]

SECURITY RISK FROM PERMANENT PROTESTS

59._The Serjeant at Arms argued that permanent protests, and the use of tents in particular, represented a security risk: "the police would really have to check it every hour all through the night [to ensure] that nothing has happened, so I would be more comfortable not to have permanent encampments and permanent overnight demonstrations". (Q 469, Ev2A, para 9) Mr McNulty stated that permanent protests do not cause a security concern, save for the presence of "semi-permanent structures". (Ev 79) He added that the GLA's byelaw, rather than primary legislation, was the most appropriate way of addressing such encampments and structures. (Ev80) Professor Feldman also noted the evidence of Deputy Assistant Commissioner Allison that security and other risks could be satisfactorily addressed by imposing conditions on a demonstration instead of introducing a ban. He concluded that it was "very possible that a court, in this country or in Strasbourg, would consider [a ban] … to be disproportionate and so not necessary in a democratic society". (Ev66, para 10, 11)

60._We note that opinion is divided in relation to whether permanent and overnight protests should be allowed to continue outside the Houses of Parliament, although there appears to be a majority against within Parliament. We see merit in distinguishing between permanent protests on the one hand, and the more traditional one day marches and demonstrations on the other. We call for a careful and comprehensive review of permanent protests, especially in light of the possible redevelopment of Parliament Square.

The power to impose conditions on grounds of security risk

61._Section 134 of SOCPA gives the police a power to impose conditions on demonstrators to prevent a security risk. Lord Carlile of Berriew, Independent Reviewer of Terrorism Legislation, has stated that existing security arrangements around Parliament and the available powers under counter terrorism legislation make the provisions in SOCPA unnecessary.[33] Mr McNulty agreed, while adding that the barriers and other security apparatus installed since the introduction of SOCPA provided a further reason to repeal the power. (QQ 490, 491, 516) The majority of responses to the Government's consultation, Managing protest around Parliament, were also opposed to continuing the power in the future for a wide range of reasons.[34]

62._However, the Metropolitan Police Service told us that, despite being used sparingly, "the ability to place conditions has ensured that we have been able to put in place effective controls on some of our most challenging demonstrations" without which the risks would be "far higher". (Ev61) For instance, "a condition limiting the size of Mr Haw's protest has reduced the possibility of his demonstration being used as a place in which another could hide a terrorist device. It has also meant a massive reduction in the number of officers having to be deployed on a daily basis to look through Mr Haw's demonstration to check that nothing had been left." (Q 61)

63._We accept the Metropolitan Police Service's evidence that the police should continue to have a power to impose conditions on demonstrations in Parliament Square to prevent a security risk in the future, including in relation to lone protestors.

Imposing conditions on grounds of public safety

64._Section 134 of SOCPA also gives the police a power to impose conditions on demonstrators where necessary to prevent a public safety threat. The Metropolitan Police Service maintains that this power is important and has helped, for instance, to prevent individuals from burning flags under circumstances where it could have led to injury. (Ev61) However, the Home Office has stated that the police can adequately address public safety in future by imposing conditions under sections 12 to 14 of the Public Order Act 1986. (Ev57, para 40)

65._We do not accept that there is a need for the police to be able to impose conditions over and above those currently available under the Public Order Act 1986 to prevent a public safety risk in the future.

Prior authorisation

66._Sections 132 to 134 of SOCPA make it an offence to demonstrate around Parliament without the prior authorisation of the Metropolitan Police Commissioner. In order to obtain authorisation the organisers of a demonstration must give the police at least 24 hours' notice in writing. Where "reasonably practicable", six days' notice is required.

67._The introduction of an authorisation requirement under SOCPA was described by Milan Rai as a "very serious change" empowering police to "effectively neuter political protest". (Q 217) He also highlighted the complex administrative process involved for protestors and the police alike. (Q 217) Mr McNulty told us that the requirement for prior authorisation was "anti-democratic and runs against the vein of spontaneous protest". (Q 517)

68._Deputy Assistant Commissioner Allison stated that he understood the concerns about prior authorisation. (Q 308) He accepted that authorisation should be dropped in future, but that the Metropolitan Police Service has requested a compulsory prior notification scheme for groups of two or more individuals to support the effective management of protests around Parliament:

"Prior to the [SOCPA] scheme coming into force, emergency police reserves had to be called in to manage assemblies around Parliament on a regular basis. While the MPS does not believe that prior notification should exist for all assemblies across the country, it does believe that prior notification should be required for assemblies that take place in the close proximity of Downing Street and Parliament itself. The MPS believes that prior notification is necessary to allow it to effectively manage the very large number of protests that take place in a small area."[35]

69._This was supported by the Serjeant at Arms, who stated that a notification requirement should apply to a smaller area than that covered by the present authorisation requirement. (Ev02, paras 16 to 17) Some kind of prior notification requirement was supported by approximately 10% of those individuals who responded to the Government's consultation. This included a number of responses that favoured a requirement applying only to larger groups with suggested figures ranging from 20 to 500 or more individuals as the trigger level.[36]

70._The Government is opposed to any form of compulsory notification. Upon the publication of the Draft Bill and White Paper, the Ministry of Justice released a press statement making it clear that: "The Home Secretary Jacqui Smith will remove the legal requirement to give notice of demonstrations around Parliament and obtain the authorisation of the Metropolitan Police Commissioner".[37] Mr McNulty, and others, have doubted whether there were serious problems with the policing of protest before the authorisation requirement was introduced. (Q 72)

71._The Government's consultation also produced responses that match the evidence we received: "prior notification would stifle spontaneous protest, that notification should be encouraged as best practice and that in practice large groups of demonstrators would inform the police of their intentions".[38] Gareth Crossman of Liberty also stated that there were clear practical benefits to giving notice to the police on a voluntary basis because "you do not want the police turning around and placing restrictions upon you there and then. That is far more likely to happen if you have not previously notified the police. So it is really in everyone's interests to notify, but there should not be a requirement to notify". (Q 276)

72._We support the removal of the legal requirement to obtain prior authorisation from the Metropolitan Police Commissioner before protesting in the vicinity of Parliament. We note the clear practical benefits of giving prior notification to the police and we encourage the practice of doing so. We do not, however, believe that there should be a legal requirement to do so.

Enforcement

73._The Metropolitan Police Service has stated that police powers of arrest in relation to SOCPA were inadequate:

"the MPS has dealt with a number of individuals who have chosen to deliberately commit offences under SOCPA. A power of arrest has existed in some of these cases, an example being where a protestor refused to provide any details. However, the MPS is increasingly having to deal with those who choose to protest in the SOCPA area in situations where a power of arrest does not exist and despite being formally reported for an offence, they continue to commit that offence. In those cases, the MPS is powerless to prevent a continuance of the offence and those committing the offence continue to break the law, so undermining it. The MPS believes that a power to arrest should exist to prevent individuals continuing to commit an offence after they have been formally reported for it. This could be achieved by an amendment to s24(5) PACE [the Police and Criminal Evidence Act 1984]."[39]

74._This position was supported by the Clerk of the House of Commons, who told us that without such powers "there would be little effective control of these areas, nor would there be any means of controlling excessive noise from loudspeakers". (Ev02, para 19) Professor Feldman told us that the power of arrest was "very properly limited to ensure that it is used to interfere with people's fundamental rights only when necessary". He expressed particular concerns about extending the power of arrest to target minor protest offences that are closely tied to the right to free assembly. He concluded that the case for increased powers in this area "falls somewhere between the unpersuasive and the fanciful", in light of the evidence that he had reviewed. (Ev66, para 34) Liberty and Bindmans have also expressed doubts about whether the current power of arrest is inadequate. (Q 240, 251)

75._Mr McNulty acknowledged the "confusion" around whether the police had power to arrest an individual who continues to commit an offence after an officer has issued a warning, while stating his belief that the power of arrest can be exercised in those circumstances. (Ev 79) He explained that the issue would be addressed as part of Home Office's ongoing review of the Police and Criminal Evidence Act. (QQ 525-527; Ev79)

76._We note the differences of opinion about the adequacy of police powers of arrest. We welcome the commitment by the Home Office Minister to remove any "confusion" as part of the review of the Police and Criminal Evidence Act 1984 that is being carried out by the Home Office. Had we been given further time for our inquiry, we might have obtained further evidence that would have enabled us to provide a more useful assessment of the adequacy of existing powers.

6 Procedure Committee, 3rd Report (2002-03), Sessional Orders and Resolutions (HC 855) Back

7 HC Deb, 7 February 2005, Col 1287 (Caroline Flint MP, Parliamentary Under-Secretary of State, Home Office) Back

8 Joint Committee on Human Rights, Policing and Protest, HC 826-i, 24 June 2008 uncorrected transcript of evidence, Q 35, available at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/uc826-i/uc82601.htm Back

9 Paragraph 166 Back

10 Metropolitan Police Service Response to Government Consultation on Managing Protest around Parliament, available at http://www.met.police.uk/foi/pdfs/other_information/corporate/mps_response_on_managing_protest_around_parliament.pdf Back

11 Metropolitan Police Service Response to Government Consultation on Managing Protest around Parliament, available at http://www.met.police.uk/foi/pdfs/other_information/corporate/mps_response_on_managing_protest_around_parliament.pdf Back

12 Makhmaduv v Russia App. No. 35082/04, 26 July 2004, para 64. Back

13 Trafalgar Square and Parliament Square Garden (Amendment No 1) Byelaws 2002 Back

14 Evening Standard, 11 July 2008; see also HL Deb, 14 July 2008, Cols 1049-1059 Back

15 Highways Act 1980, section 137. Back

16 Public Order Act 1986, section 14. Back

17 Metropolitan Police Act 1839, section 52. Back