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.
| 
