Memorandum by Kiron Reid, School of Law,
University of Liverpool (Ev 22)
The consultation paper Managing Protest around
Parliament followed the Governance of Britain Green
Paper (Cm 7170) in which the Government committed to consulting
on the sections of SOCPA covering demonstrations near Parliament.
This was one of the first acts of the Gordon Brown Government
in July 2007. The White Paper, The Governance of Britain: Constitutional
Renewal, (Cm 7342-1) in March 2008 followed the consultation.
It is apparent from this process that the consultation was a genuine
consultation where the Government and civil servants listened
to the submissions relating to restrictions on protest and proposed
action that was consistent with the consultation response. This
in itself is a significant change in emphasis from the way in
which much legislation on criminal justice has been passed from
1994 to the present.
The Analysis of Consultations document
gave a clear impression of submissions on managing protest around
Parliament. The Ministry of Justice press release was unequivocal
that the Government had accepted the overwhelming sentiment expressed
in the consultation exercise:
"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". 25 March 2008.
This is a fundamental change in attitude from
previous Government announcements on criminal justice measures
which often seemed to pursue stated policy with little regard
to consultation or evidence.[42]
Indeed it is evident that sensible and rational
suggestions in the consultation paper to revise the law about
conditions on processions and assemblies were overlooked because
of the strength of feeling of respondents who supported repealing
the restrictions and did not consider the detailed suggestions
for amendments to the regulation in Part II Public Order Act 1986.
Specifically the suggestion that the conditions that can be imposed
on assemblies and marches should be harmonised (question 2), subject
to appropriate modifications, it is submitted would give the police
more flexibility in deciding the appropriate steps to take in
a public order situation. Arguably the senior police officer should
be given a greater degree of discretion to impose such conditions
as are reasonable and proportionate in the circumstances while
promoting the right of freedom of assembly and association and
the right of freedom of expression. In relation to assemblies
it is probably not helpful if the current list in the Public Order
Act 1986 is seen as being an exhaustive one rather than examples.
Although I am not aware of any caselaw regarding this others may
know if this has caused difficulties for protesters or police
in practice. Section 14 Public Order Act could simply be amended
to make it clear that the conditions imposed can include but are
not limited to those listed.
Section 12 states that the senior police officer
"may give directions imposing on the persons organising or
taking part in the procession such conditions as appear to him
necessary to prevent such disorder, damage, disruption or intimidation,
including conditions as to the route of the procession or prohibiting
it from entering any public place specified in the directions".
Whereas s 14 states that the senior police officer
"may give directions imposing on the persons organising or
taking part in the assembly such conditions as to the place at
which the assembly may be (or continue to be) held, its maximum
duration, or the maximum number of persons who may constitute
it, as appear to him necessary to prevent such disorder, damage,
disruption or intimidation".
(The relevant parts of ss 12 and 14 are included
at the end of this paper).
It might be clearer if the wording of s 14 was
amended to give consistency with s 12. Amended the wording might
be that the senior police officer "may give directions imposing
on the persons organising or taking part in the assembly such
conditions as appear to him necessary to prevent such disorder,
damage, disruption or intimidation, including conditions as to
the place at which the assembly may be (or continue to be) held,
its maximum duration, or the maximum number of persons who may
constitute it". I believe this would make clear that the
list was not intended to be exhaustive but a statement that the
conditions are including but not limited to those listed could
be included if thought necessary by the draughtsman.
Arguably SOCPA gave the Commissioner no ability
to add conditions on protesters that is not already covered by
existing pre-2005 legal powers. However there was possible ambiguity
about noise nuisance and further thought is needed about unreasonable
use of noise to disrupt the business of those working in and around
Westminster on a more than temporary basis. If time-limited noise
nuisance generally were to be penalised this would surely remove
politicians from the necessity of being always able to deal with
hecklers, which surely is a part of the skill of the job. (The
issue of noise is covered specifically in s 134(4)(f) and s 137
on use of loudspeakers in designated area). Section 3 of the consultation
considered whether there should be a different position around
Parliament than in other locations. The concerns about Members
of Parliament not being obstructed and allowing the business of
Parliament to proceed unhindered (paras 3.2 and 3.3) are both
important. The same issues though apply to every local Council
up and down the land and it would be a self-obsessed and out of
touch local council that called in the police to resolve such
matters. They would look out of touch and elitist and as if they
did not care about the views of their residents. It is noticeable
though that noise nuisance is not covered by breach of the peace
or except by possible inference by Public Order Act powers and
even the breathtakingly broad section 54 para 14 of the Metropolitan
Police Act 1839 appears to omit protests from this offence (nor
is there an equivalent provision for other areas in the eclectic
s 28 Town Police Clauses Act 1847). Clearly while banning many
other forms of nuisance and disturbance of the day, one might
term it "anti-social behaviour", the Victorians were
not as concerned about noise nuisance in cities as people and
politicians are today.
It is right that there should not be a criminal
offence for a person to use a loudspeaker in the designated area
(with repeal of the 2005 Act provisions). The Explanatory Notes
to the Draft Constitutional Renewal Bill tell us that "the
use of loudspeakers will continue to be governed by section 62
of the Control of Pollution Act 1974 and section 8 of the Noise
and Statutory Nuisance Act 1993".
Section 62 "Noise in streets" generally
prohibits operation of a loudspeaker in a street between the hours
of nine in the evening and eight in the following morning (and
for commercial purposes not relevant here).[43]
SOCPA used the same wording relating to certain exceptions which
include the proviso that the equipment "is so operated as
not to give reasonable cause for annoyance to persons in the vicinity".
It is possible that this wording could be incorporated into a
condition that police could impose on users of loudspeakers at
processions and assemblies under the POA. However I would assert
that any such provision (in this case condition) should be subject
to a warning before any escalation—and that escalation thereafter
be initially by means of a fixed penalty. Alternatively if it
was felt that restriction was only needed near Parliament because
of its unique status then amendment could be made by way of an
amendment to the Metropolitan Police Act 1839. This might cover
actual disruption rather than simply annoyance. How this might
be done is considered below. Officers would also it is suggested
need a power to confiscate equipment if reasonable and this is
also noted.
The clearest explanation of the penalty notice
system that I am aware of is that on the Home Office website:
"Once a penalty notice has been issued
the recipient must either pay the amount shown on the notice or
request a court hearing. This must be done within the 21 days
of the date of issue.
Payment of the penalty by the recipient discharges
their liability to conviction of the offence for which the notice
is issued. Payment involves no admission of guilt and removes
both the liability to conviction and a record of criminal conviction."
(http://police.homeoffice.gov.uk/operational-policing/crime-disorder/index.html/
).
It is suggested that any provisions considered here
be subject to the lower tier penalty.
Another specific concern raised was Parliament
as an obvious terrorist target. It must be noted that police and
Government interpretation of what is a security risk has been
highly discriminatory, particularly in the Metropolitan Police
area—peace campaigners and protesters have generally been
held to be a security risk necessitating high levels of policing
but sporting-related processions or large crowds related to film
and pop stars or alleged "celebrities" have not. The
distinction appears to be that legal powers are used where there
is a political motive but not on large crowds without political
background, ignoring the same or possibly greater security risks
obvious in relation to groups that would not otherwise come to
any particular attention of the police and may not (though they
may) be organised by professional or experienced stewards. (The
warnings about terrorist risk associated with the George Bush
visit to London on 20 November 2003 can be contrasted with the
much more low key policing of the England Ruby World Cup victory
procession less than one month later, 8 December 2003).[44]
The argument of Parliament as a particular security risk could
apply to Premiership football grounds, mainline railway stations
and many other particularly symbolic locations in the life of
Britain as well as strategic ones. (The Counter-Terrorism Bill
2008 highlights policing at gas facilities, clauses. 77-82). Security
and vigilance by the authorities, employees and the public at
all of these locations is vitally important but restricting protest
is not the same as security and vigilance.
Parliament is of course not a local Council
office and the consultation paper and occasionally Government
ministers as well as opposing MPs and Lords have highlighted that
it correctly is a focus for protest by a wide range of people
wanting to exercise their freedom of expression. If there really
is a specific issue in relation to obstruction this merits further
consideration though existing police powers are probably adequate.
In part the Sessional Orders should be revised so that they directly
cover the area around Parliament and the language modernised so
that it reflects the Human Rights Act era language rather than
apparently the antiquated language of the pre-Victorian era. A
specific and limited legal provision relating to access to Parliament
could be included here if necessary however police powers relating
to both obstruction of highways and obstruction of officers probably
give them sufficient powers at present. A specific power to deal
with this and related offence if required could be included in
an amendment to the Metropolitan Police Act 1839. It is interesting
to note that this may not have been a significant issue before
the modernisation of public order law 20 years ago. Card suggested
that in London informal agreements usually worked in the past
prior to the Public Order Act 1986.[45]
It was certainly the case by contrast that on stop and search
weak and informal controls did not work prior to the safeguards
introduced in PACE at about the same time.
CONCLUSION.
Specific recommendations.
(1) Repeal the restrictions on protest around
Parliament as included in the Bill.
(2) Keep the Sessional Orders but modernise
the language—if thought necessary add a specific new clause
to s 54 para 14 Metropolitan Police Act 1839 to cover obstruction
of access to Parliament. This should initially include a requirement
of a warning before an officer or CSO can take any further action.
Escalation should then be by means of a fixed penalty with arrest
only if necessary. Keeping the Sessional Orders is suggested because
Parliament is of particular significance in the life of our democracy
and that should be recognised.
(3) Regarding use of loudspeakers. The above
clause could include a specific provision regarding use near Parliament.
On complaint received if a police officer or CSO reasonably believes
that noise from a loudhailer is excessive and hindering the work
of any person in Parliament they may warn the user to reduce the
volume. If the user does not do so within a reasonable time the
officer must tell them that if they fail to do so they will be
subject to a penalty notice and the equipment liable to confiscation.
If the user still persists then the officer or CSO can give a
penalty notice and/or confiscate the equipment. The notice should
initially be a civil matter unless not paid and the equipment
should be returned by the police in a reasonable time after application
in writing by the user and payment of an administrative fee. Alternatively
there could be a general amendment to the Public Order Act conditions.
(4) The Public Order Act 1986. As suggested
in the original consultation paper the conditions that can be
imposed if reasonable and proportionate should be standardised
for conditions and assemblies. Rather than an exhaustive list
it is suggested that the current lists be regarded as examples
and the senior police officer given greater discretion, always
subject to protection of the right to peaceful protest and freedom
of assembly and association, the application of the Human Rights
Act and the rule of law in general.
Public Order Act 1986 (extract).
12.—Imposing conditions on public processions.
(1)
If the senior police officer, having regard to the
time or place at which and the circumstances in which any public
procession is being held or is intended to be held and to its
route or proposed route, reasonably believes that—
(a)
it may result in serious public disorder, serious
damage to property or serious disruption to the life of the community,
or
(b)
the purpose of the persons organising it is the intimidation
of others with a view to compelling them not to do an act they
have a right to do, or to do an act they have a right not to do,
he may give directions imposing on
the persons organising or taking part in the procession such conditions
as appear to him necessary to prevent such disorder, damage, disruption
or intimidation, including conditions as to the route of the procession
or prohibiting it from entering any public place specified in
the directions.
14.—Imposing conditions on public assemblies.
(1)
If the senior police officer, having regard to the
time or place at which and the circumstances in which any public
assembly is being held or is intended to be held, reasonably believes
that—
(a)
it may result in serious public disorder, serious
damage to property or serious disruption to the life of the community,
or
(b)
the purpose of the persons organising it is the intimidation
of others with a view to compelling them not to do an act they
have a right to do, or to do an act they have a right not to do,
he may give directions imposing on
the persons organising or taking part in the assembly such conditions
as to the place at which the assembly may be (or continue to be)
held, its maximum duration, or the maximum number of persons who
may constitute it, as appear to him necessary to prevent such
disorder, damage, disruption or intimidation.
June 2008
This is based on a shorter extract from a detailed
draft paper on protest and police powers in England and Wales
in the last decade. I have amended and expanded the section on
this topic with additional legal detail and some references added
on the specific questions of interest to the Committee. (Most
background references omitted dealing with points which the Committee
will be familiar with).
42 Discussed by Reid, "Law and Disorder: Victorian
Restraint and Modern Panic" ch. 5 in Behaving Badly: Visible
crime, social panics and legal responses-Victorian and modern
parallels, ed. J. Rowbotham & K. Stephenson (Aldershot: Ashgate,
2003), pp. 83-4, 93. Back
43
Section 8 and Sch. 2 of the 1993 Act covers consent of local authorities
to the operation of loudspeakers in streets or roads. Paras. 214-216
of the commentary on the draft bill considers the ECHR implications
of the provisions relating to noise. Back
44
See "England 750,000, Australia nil" A. Anthony, The
Guardian 9/12/2003; cf "Thousands protest against Bush"
BBC News online, 21/11/2003. Back
45
R Card, Public Order: the New Law, (Butterworths, London, 1987),
para. 4.5. Back
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