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
18
Transcript of evidence heard by the Joint Committee on Human Rights,
Policing and Protest, HC 826-i, 24 June 2008, available at http://www.publications.parliament.uk/pa/jt/jtrights.htm
Back
19
Environmental Protection Act 1990, s.79 Back
20
The Governance of Britain, Analysis of Consultation Responses,
Cm 7342-III, at paragraph 39; see also comments made by Baroness
Mallalieu, Ev13. Back
21
Not printed (but available in the House of Lords Record Office) Back
22
Public Order Act 1986, section 14. Back
23
Public Order Act 1986, section 5; Trade Union and Labour Relations
(Consolidation) Act 1992. Back
24
Metropolitan Police Act 1839, section 54. Back
25
Westminster City Council v Brian Haw [2002] EWHC 2073 (QB) (Gray
J) Back
26
Procedure Committee, Third Report (2002-03), Sessional Orders
and Resolutions (HC 855), paras 21-22. Back
27
Procedure Committee Third Report (2002-03), para 20. Back
28
EDM (No 1452) dated 20 June 2003; see also EDM (No 1483) dated
8 July 2004 Back
29
Scrutiny: First Progress Report, 4th Report of Session
2004-05, at paragraph 1.137, available at http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/jtrights.htm
Back
30
Not printed (but available in the House of Lords Record Office) Back
31
Joint Committee on Human Rights, Policing and Protest, HC
826-i, uncorrected transcript of evidence, Q 19, available
at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/uc826-i/uc82601.htm
Back
32
Joint Committee on Human Rights, Policing and Protest, HC
826-i, uncorrected transcript of evidence, Q 20, available
at http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/uc826-i/uc82601.htm
Back
33
HL Deb, 26 January 2007, Col 1378 Back
34
The Governance of Britain, Analysis of Consultations, Cm
7342-III, paras 26, 36 Back
35
The Metropolitan Police Service's response to the Government consultation,
Managing Protests around Parliament Back
36
Analysis of Consultation Responses, para 33. Back
37
25 March 2008, available at http://www.justice.gov.uk/news/newsrelease250308a.htm
Back
38
Analysis of Consultation Responses, para 34. Back
39
The Metropolitan Police Service's response to the Government consultation,
Managing Protests around Parliament Back