Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence


Examination of Witnesses (Questions 220-239)

Mr Gareth Crossman, Mr Mike Schwarz, Baroness Mallalieu QC and Mr Milan Rai

3 JUNE 2008

  Q220  Chairman: Would you accept that that is somewhat speculation? Again, do you have any evidence that the police have so changed the nature of a demonstration as to make it inoperable or ineffective?

  Mr Rai: Not at all. I have not come across any evidence that the police have exercised the powers which they now enjoy.

  Q221  Lord Campbell of Alloway: You were a co-founder of Voices of the Wilderness.

  Mr Rai: That is correct.

  Q222  Lord Campbell of Alloway: What is the object of that? Is that to organise demonstrations? What is the purpose of Voices of the Wilderness?

  Mr Rai: I regret to take up the Committee's time on disentangling my political allegiances.

  Q223  Lord Campbell of Alloway: No, it is a straight question. Is it yes or no?

  Mr Rai: I did co-found Voices in the Wilderness ten years ago. Five years ago, and therefore pre-dating this particular involvement with the Serious organised Crime and Police Act—

  Q224  Lord Campbell of Alloway: Forgive me, sir. I am not concerned with this involvement at the moment. It is a simple, straightforward question. The answer is yes or no, was it founded so as to organise demonstrations?

  Mr Rai: What I was trying to say was that I was not actually involved in Voices in the Wilderness at the time of this demonstration. However, Voices in the Wilderness does carry out demonstrations and that is one of its purposes, yes, but that is not relevant to my involvement in that particular incident.

  Mr Crossman: Just turning back to the original question, which I think was relating to what is problematic about SOCPA as well as all the generally well known concerns that have been raised about the onerous nature of it and the ability to place extremely restrictive conditions on demonstrations, there are a couple of other points that I think are relevant. The first is the gestation of SOCPA itself. I think part of the problem with the broad nature of the restrictions comes from the fact that when the Serious Organised Crime and Police Bill was originally published in the House of Commons it was a very different set of proposals. It was far more specific and, to put it bluntly, it seemed to be just targeted towards Brian Haw and there was a considerable amount of criticism at the time saying that it was ridiculous to have an Act of Parliament which seemed to be targeted on a particular individual, so this was redrafted and the consequence of that was that you had a Bill coming back which was far more broad in terms. It was clearly not just about Brian Haw but now was about everyone else as well, so the fact that this was not the original draft and it was done in response to criticism in the hurly-burly of politics I think is part of the problem. Another brief point I would make is that, of course, the problem with this part of the Act is that it does not exist in a vacuum and generally it has to exist alongside the restrictions that can be imposed either by the Greater London Authority which in themselves can be extremely onerous or, in the case of demonstrations in College Green and elsewhere, within the rules that are set down by the Houses of Parliament themselves, so they can increase and multiply the concerns and difficulties faced by anyone trying to organise demonstrations.

  Q225  Chairman: I take it that you think that the present provisions are unreasonable. What would be reasonable provisions to replace what currently exists?

  Mr Crossman: I would have to say that I do not think there is any justification for this to continue at all. I think that this part of SOCPA should be done away with. On top of that I would say that the restrictions imposed by the GLA, and I am not sure whether this would be considered a matter for the Committee, in themselves are in our view excessive and disproportionate and can make it extremely difficult for anyone to organise a demonstration. We are actually doing this ourselves at the moment. We are trying, in relation to the Anti-Terrorism Bill which is going through, to organise an event to coincide with the report stage and finding it an absolute headache and we are a bunch of lawyers. Of course there is a need to have a framework to ensure that reasonable and proportionate restrictions can be made but most of those are found within the existing law. We have a considerable amount of public order law that exists but that tends to be targeted towards demonstrations where problems arise. We have a lot of law that can deal with that sort of situation, so I would say that the framework for allowing them to take place needs to be far more relaxed.

  Baroness Mallalieu: Can I say on behalf of the Countryside Alliance, of which I am the President, that we have no experience of trying to organise either a demonstration or a march which passes through Parliament Square since this legislation came into force, but we very warmly welcome the Government's current intention to repeal the relevant sections for what I suppose would be a lay reason, that prosecutions to conviction of people in circumstances such as Milan Rai in our view bring the law into disrepute and make it look as if Parliament, far from encouraging people to engage in the parliamentary process and express their views openly, is trying to place the Houses of Parliament out of bounds to members of the public and to prevent them expressing their views to Members of Parliament who they have elected. That part I strongly support. In our view the existing powers to properly control either a march or a demonstration are already contained in the existing law in the Public Order Act of 1986, in the byelaws relating to Parliament Square and also in the Sessional Orders. Our view is that there is no need for any further supplement to those pieces of legislation which would enable the authorities to deal with all the problems that have arisen and currently arise. We are further concerned if there is any suggestion that there should be what I see is referred to in the consultation document as "harmonisation" in relation to assemblies and marches because that would inevitably result in further restrictions being placed on what is already a difficult business of organising an assembly. Essentially we welcome what the Government is proposing to do but are concerned that it should not become a cover for in effect making life more difficult for people who want lawfully to demonstrate.

  Mr Schwarz: Can I just echo what has been said about the existing law being perfectly adequate? I think there are serious problems about applying it in Parliament but I think it is all there already—the Public Order Act, the Highways Act, the byelaws, aggravated trespass, the Trade Union and Labour Relations Act. It is all there already. I think the key issue here is policing because the trouble with creating a special law which potentially trivialises protest is that it puts the seed in the police's mind that those people around Parliament who are protesting have fewer rights than tourists, than drivers, than parliamentarians, than other people carrying out non-governmental business here. That I think is the problem. It is the impact on the police. They think, "Parliament has said this about protests. We must enforce the law", and they assume as a default position that there may be something criminal about protest. My view is that not only is the existing non-SOCPA law sufficient, but so far as policing is concerned the police ought to attach greater weight than they do now and did pre-SOCPA to the right to protest, and you know this better than I do, respectfully. There are different ways of influencing Parliament. There are people who have the "in" on Parliament, who have the ear of MPs. Protest is the key form for people without special access to Parliament to express their views and potentially criminalising ordinary protesters outside Parliament Parliament is reducing the civil standing of ordinary citizens.

  Q226  Emily Thornberry: Can I ask a question to follow that because I was interested to hear you say that you did not think that we should harmonise the law, that essentially you are saying, "Get rid of SOCPA and then we will be happy", and that seemed to be what the lawyers on this panel were saying. Are you telling us that you do not think we should go further and try and harmonise because you are suspicious that we will simply restrict people's rights? Is that really your evidence?

  Baroness Mallalieu: No. I am saying that there are particular difficulties which relate to a march, for example, as opposed to an assembly and there are particular features which obviously the authorities have to take into account, in particular traffic and danger and so on, and therefore there are particular requirements involved in relation to a march, in relation to notice and in relation to the powers which the authorities can exercise, but it would, I think, be unfortunate if, in taking away what I see as a draconian measure that somehow slipped by into the legislative process when perhaps eyes were elsewhere, we were to replace it with a measure which would further restrict what I think is an essential right of people to come and assemble in Parliament Square lawfully to express their views. My reasons are that I think there is a distinction to be made in relation to the powers that are required for the two sorts of demonstration and in my view they are adequately balanced at the present time with the differing restrictions.

  Q227  Emily Thornberry: Is that the view of the rest of you?

  Mr Crossman: Could I just clarify something on the comment that you made about, "Get rid of SOCPA and everything will be fine". That is not our position at all. We think that SOCPA adds to the problem that already exists from an excessive and disproportionate restriction placed by the GLA. There is a small L-shaped strip where Brian Haw's demonstration is which is covered by Westminster Council. The rest of Parliament Square is subject to control by the GLA. For example, when we inquired we were informed—this is the GLA, nothing to do with SOCPA at all—that applications must be five working days in advance, no more than one public meeting allowed on the same day, it cannot last for over three hours, it must be in daylight hours, the real killer—public liability insurance of £5 million required, which for many people would make it impossible to do anything anyway because they are simply not in a position to take out that sort of insurance, and not to attach banners to any part of the square. If you are trying to organise a demonstration and you come up against that as a set of requirements it is going to be very persuasive in making you think that you want to look elsewhere for your demonstration, so SOCPA on its own is not the end of the problem from our perspective.

  Mr Schwarz: Can I also respond to your question, which was about whether the existing law itself is a satisfactory status quo. I do not think it is. There are obviously issues about how it is applied generally across the country but so far as Parliament is concerned I think the issue the Committee ought to be considering is the number of people protesting. If, for example, one looks at the rules on assemblies, assemblies are defined as groups of two or more people. I think the concern ought to be about numbers, so if you are looking at existing legislation what sort of numbers would cause a problem—20, 30, 40? It is not going to be one person as under SOCPA, it is not going to be two under assemblies, or 20 which is in the Public Order Act; it has to be significantly higher than that, particularly bearing in mind, as I said, the numbers of coach loads of tourists who come along without needing a licence or passing traffic, all of which could be carrying suicide bombers, as well as everything else that is going on. Why apply potentially criminal conditions to protesters who appear in that number?

  Q228  Emily Thornberry: The question I ought to ask at this stage though is do any of you know about other jurisdictions and what it is that other parliaments do? There must be other parliaments that have demonstrations and laws applying to them, so do any of you have any experience of that or know any lessons that we can learn from elsewhere?

  Mr Schwarz: If you look at, say, the European human rights law, and Gareth can also deal with this, and at the way the European Court has examined different jurisdictions' protests, they say yes, that conditions and prior authority as a condition to protest can be sought but it must be reasonable and proportionate, as you know, proportionate with the aim of allowing protest as well, and that those rights of protest should not be interfered with without a pressing social need. Interestingly, when Westminster Council took Brian Haw to court before SOCPA, the High Court said, "No, we are not going to stop him protesting because there is no pressing social need to interfere with his rights of protest". I think that is the key question for the UK, for other jurisdictions and obviously for the European Court when this Committee, for example, is looking at the human rights implications of SOCPA or its replacement—is there a pressing social need? I say no.

  Q229  Martin Linton: I am going to ask about additional powers but can I first clarify the answer to the first question because it leads on to this? If you are saying that the present Act is impossibly bureaucratic, and I agree with you, would you prefer a return to the old system of Sessional Orders which have not been read for the last two years? If it was a straight choice between SOCPA and Sessional Orders which would you prefer?

  Mr Rai: Having been arrested under the Sessional Orders as well in the past, I am not sure I am in a good position to make a choice between the two. Unfortunately, my experience of Sessional Orders is that I have encountered police officers who, in the way that Mike Schwarz has been indicating, have been under the impression that Parliament has asked them basically to stop protests occurring and they have used Sessional Orders as a way of intimidating protesters and occasionally arresting them. I was involved in a case that was won on appeal at Southwark Crown Court which helped to put Sessional Orders into something of disrepute, so if you ask me to choose between the two systems I think that there is a very grave step forward with the demand for compulsory authorisation and that marks the distinction between the two systems. However, if you said would I actively choose one, I would respectfully decline to make a choice.

  Q230  Martin Linton: Baroness Mallalieu?

  Baroness Mallalieu: I would go back to the Sessional Orders and the status quo as before.

  Q231  Martin Linton: Mr Crossman and Mr Schwarz?

  Mr Schwarz: I do not know if the Sessional Orders are appropriate. I think existing criminal law applied impartially and independently by the police where appropriate is adequate. I am concerned about Sessional Orders because it is another message from Parliament to the police saying, "We do not like protests around us".

  Q232  Martin Linton: We are not looking at protests or demonstrations in general. We are just looking at the law as it applies or should apply to protests outside Parliament. It is a very specific small point.

  Mr Schwarz: But the Sessional Orders are a message to Charing Cross police station, "This is our view of protests around Parliament". Legislation is the worst. Sessional Orders I think are pretty bad. Why not let the police, applying the primary legislation, form their own views and policies on when it is appropriate to intervene? Obviously, if they get a call at 10.30 at night from Parliament saying, "We have got a bit of a problem outside. There are too many protesters", they may come along.

  Mr Crossman: All I would add is that while the straight answer to that, if there had to be one, would be Sessional Orders rather than SOCPA, the flip side of that is that, for all that I believe that those provisions should be done away with, at least they provide a legislative framework which is easily accessible and where people can see what the parameters of the law are. I do not think the same applies when we are talking about Sessional Orders where they seem to be far more broadly open to interpretation.

  Baroness Mallalieu: I wonder if I might just add, if I may be allowed, Chairman, that the thrust of Sessional Orders seems to me to recognise the importance of Members of Parliament being able to get into the building, and indeed the other way, Members of Parliament being able to get out of the building to see their constituents outside. I think that is not necessarily recognised by the other aspects of the law and I think it is a particular feature of Parliament which needs to be in some way preserved.

  Q233  Martin Linton: I understood your answer, Mr Crossman. Can I lead you on now to, if we do not have SOCPA and we do not have Sessional Orders, as some of you advocate, would the police still need additional powers to ensure that, as Baroness Mallalieu says, parliamentarians can access Parliament and leave Parliament during protests?

  Mr Crossman: I have to say that my belief is that the Sessional Orders were probably more relevant to a time when there was not the system we have now under which those of us who are not possessors of parliamentary passes wish we could find our way in and out of Parliament in the way that those who do hold them can.

  Q234  Martin Linton: You do know that several parts of the building are open to the public?

  Mr Crossman: Well, yes, sorry. What I meant was that if there was a significant sized demonstration out in Parliament Square and I was holding a parliamentary pass I would be able to get in underground without any problem whatsoever because I could get access via the subway. If the purpose of Sessional Orders was to ensure that Members of Parliament were able to enter and exit Parliament, I imagine that was at a time when that method of access was not a possibility. You will know better than I. It just appears to me that if you hold a parliamentary pass getting in and out of Parliament is not a significant issue.

  Q235  Martin Linton: So you do not think there would be any need for the police to have powers to keep Carriage Gates open to access?

  Mr Crossman: Under the common law the police, if they need to open access onto the carriageway for a particular need, they are able to do so. I do not think there is any need for any particular extension of the common law on that.

  Q236  Martin Linton: If you can just cast your mind back to before 2005, do you think there were occasions when the police had difficulty maintaining access to Parliament?

  Mr Crossman: I do not know the answer to that. There may have been occasions. What I can say is that I do not believe that that was the policy driver behind the introduction of SOCPA because if it had been the original draft of SOCPA would have reflected that and it did not.

  Mr Schwarz: There is a very straightforward answer to this, which is the Highways Act. It is an offence to obstruct the highway and if you are stopping people from using the pavement, getting in and out of places, that is an offence. The police can enforce it. It applies at Parliament, it applies everywhere. That is part of my view, which is that there is no need for special powers or special legislation, SOCPA, Sessional Orders or otherwise.

  Q237  Martin Linton: I do not know if any of you were present at the Countryside Alliance demonstration in Parliament Square. I forget when it was but I am sure Baroness Mallalieu would know.

  Baroness Mallalieu: September 2004.

  Q238  Martin Linton: I was there, not as a demonstrator but I observed what was happening, and there was a very ugly situation that developed with the crowds surging forward and the police having to hold the line, and indeed several people got injured, not I think through any intent by the police but simply because they had to prevent the demonstration from storming Carriage Gates, effectively. I do not think one could prove either way whether the demonstrators intended to rush through Carriage Gates but the point is that if the police line had broken they could have done and there were several of them behaving in a way that looked as though they were trying to break through, and presumably they were not just trying to cross the road peacefully; they were hoping to go further. Was that not a situation where you had a demonstration on Parliament Square pushing at police lines and where you could get a mass invasion of Parliament?

  Mr Crossman: Is that not the point of section 14 of the Public Order Act, that in that situation the police can take action, can impose restrictions as they see appropriate?

  Mr Schwarz: I agree. There is a raft of legislation that applies across the country that can apply there. What you are describing is a policing issue—do the police have resources to deal with this?

  Q239  Martin Linton: I am asking a specific question, not about the law in general. Outside a legislature is there a case for the police to have additional powers to prevent people from rushing into the legislature?

  Mr Crossman: They do have powers to do it. That is precisely the point of the additional powers under the Public Order Act that exist as a consequence of section 14. The police can make a judgment to say, "We are imposing restrictions. We are requiring people to act or not act in a certain way and if they fail to do that they have committed a criminal offence". It allows the police to react appropriately to the sort of situation that you are talking about when things look like they might get out of hand.


 
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