Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Examination of Witnesses (Questions 260-278)

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

3 JUNE 2008

  Q260  Lord Morgan: That would mean with no limits, forever.

  Mr Rai: Can I add something from an organiser's point of view? I think the same thing could be said about marches, vigils or any other form of protest. It might be that a whole host of people would wish to carry out a protest at the same time or the same place. The fact is, permanent protests occur because there is something which a significant number of people feel is a very great social evil. It is not simply one person; one person cannot sustain a permanent encampment; there has to be a support structure for that and that support structure, inevitably, involves people rotating in and out. The reason why Brian Haw has been able to be there so long is because of a large number of people who have supported him, and the support of a broad movement, in fact, in many ways. It is because it is an issue of major significance to the nation and to a very large proportion of the nation that you have something like a permanent encampment. The question is, if there is such an issue then why should there not be a permanent expression of that concern?

  Q261  Lord Morgan: Not necessarily in one particular place or at one particular time. Those of us who are against the Iraq invasion could say that a different form of protest which would be quieter and less rooted in one spot might take place.

  Mr Rai: I do not disagree with you at all that there are alternatives, but the reason why it continues and it has the level of support that it does to enable it to continue is because a sufficient number of people feel that the enduring question, not only of the invasion but of the occupation, means that they sustain it. If there were many such issues then it would mean that there were many such issues on which a large number of people in this country felt that they would give their support to someone who was expressing their view to Parliamentarians on a permanent, day-by-day basis, and that is what Brian Haw does for very many people. If there were other people doing it on other issues it would mean that there were other issues which were as important to a large number of people in this country.

  Q262  Lord Morgan: We do not know how many people would support him. Would it not be the case, perhaps, whatever the figures were, that Mr Haw would continue there? He has a strong pull of conscience.

  Mr Rai: We did see that he did win the Channel 4 award, when he had a number of competitors, for political figure of the year.

  Q263  Martin Linton: How many votes did he get?

  Mr Schwarz: He got quite a significant number but in the Westminster area it is probably not as big as in other places.

  Chairman: I think we had better move on from that. Lord Campbell, did you want to add something to that? I know you had a question on that.

  Q264  Lord Campbell of Alloway: First of all, may I say, I wholly accept Lady Mallalieu's approach to this: the law is about as effective as it can be, and if you start tinkering with it it could probably make worse conditions. Can you not draw a distinction between a demonstration and permanent camping? It seems to me that if you cannot you have got a rather sort of disproportionate approach to the community as a whole, because every man's right has to be exercised with respect to other people's rights. It seems to me that a permanent camp outside Parliament, where the people come in and out to keep it going, is not really necessary for a demonstration about anything—about the Countryside Alliance, about Iraq or anything. What do you say to that? Is this absolutely essential and reasonable?

  Baroness Mallalieu: Of course, none of it is essential; it is not essential for people to be allowed into Parliament Square at all and cause inconvenience, but I do not think you can draw such an artificial distinction. If people feel strongly enough to come to Parliament and put their views in a lawful way, how they choose to do it and for how long they choose to do it, we say, should be a matter for them.

  Q265  Lord Campbell of Alloway: Yes, but I am suggesting that it is not a lawful way to demonstrate to be there as long as they want to be there. There are other interests—the pollution interest and all sorts of other interests.

  Baroness Mallalieu: Can I say that so far as the pollution interest is concerned, anybody having a demonstration in Parliament Square does require a considerable back-up of people who come and collect rubbish, people who make sure everything is cleared up and people who are providing food and drink and all that. So there has not, so far as I am aware, been any problem with that sort of difficulty. It is unsightly—the present one that is there at the moment is unsightly—but that is, as I have already said, a small price to pay for people being able to come and put their views directly to their House of Parliament in Parliament Square. I do not see that there is a distinction to be made. In one case you could say: "We can look the other way because it will all be gone next week" but I am not aware that Brian Haw's presence, or any of the other more permanent demonstrations that have taken place in Parliament Square, have ever caused conflict or prevented anybody who wanted to demonstrate doing so. If I can just go back to the pig, which I think was demonstrating about the state of the pig industry at the time, enormous care was taken to send barrow-loads of dung up to Downing Street for the garden, in order to make sure there was no pollution in the Square. Anybody who was infringing any of the local bylaws would, of course, fall foul of them and be liable to prosecution.

  Q266  Lord Campbell of Alloway: Thank you very much. We shall just have to disagree. It would not be the first time.

  Baroness Mallalieu: Indeed.

  Q267  Chairman: Before we leave this subject entirely, Mike Schwarz, perhaps I could ask you: do you think there is already provision, perhaps under the Highways Act or otherwise, to ban permanent demonstrations? If not, do you think there should be? Is there not in the Highways Act a provision that you cannot stand in one place for any period of time? Is that not already there?

  Mr Schwarz: The Highways Act does apply to protests on the pavement. Westminster Council brought civil proceedings against Brian Haw before SOCPA to try to move him on, and Mr Justice Gray said that there was no pressing social need to interfere with his right of protest because he was not significantly disrupting passers-by trying to exercise their right of passage along the pavement. That applied then; it applies now. Unless the pavement is obstructed, there is no need to intervene. If it does become excessive then the police have the power to intervene and people can be prosecuted, but if the site of the protest is not disruptive then there is no offence committed and one's right to protest under the Human Rights Act should be protected.

  Mr Grossman: I will be brief and make two short points. If I was to be asked: "What are the benefits of living in a common law country as opposed to a civil code country?" I would say one of the great things about a common law country is that you are free to do things unless laws are passed which say that you cannot do them. I think that Brian Haw's case, although laws were passed, is a very good example of the benefits of living in a common law country. The other quick comment I would make is that the framework under the Human Rights Act says that you have a right to assembly. That is a qualified right and it can be restricted, in a manner that is proportionate, in order to ensure compliance with other needs, which include preventing crime and disorder, national security and to protect the rights and interests of others. I do not think that the fact that Mr Haw's protest might be unsightly or people might not like it particularly falls into one of those legitimate restrictions.

  Q268  Chairman: You are aware of the proposals under the World Squares proposals to pedestrianise Parliament Square which would have up to 34 million people using it. If that goes ahead, would that change any of your views as to whether or not permanent demonstrations could fit in with that sort of proposal?

  Baroness Mallalieu: I think Parliament Square should be a living place and not a theme park for tourists. The answer is no.

  Q269  Sir George Young: Would it not be an obstruction, though?

  Baroness Mallalieu: If it is pedestrianised there is even more room for people to walk round Brian Haw and others.

  Q270  Lord Plant of Highfield: Under section 134 of SOCPA the police have a power to impose conditions to prevent a security risk or a risk to public safety. If this section were to be repealed those provisions would obviously go, along with the repeal. Do you think the police should continue to have a power to impose conditions to prevent a security risk or a risk to public safety?

  Baroness Mallalieu: They do already under the existing Public Order Act and under the existing bylaws.

  Mr Crossman: And, I presume, under section 44 of the Terrorism Act as well, which I presume the whole of Westminster is under a rolling authority for.

  Q271  Lord Plant of Highfield: Since that was a fairly quick answer I will come back on something. It is really about the status of Parliament Square. I am very much sympathetic to the points that Lady Mallalieu has made but there is another issue and I would be interested to know your view about this. You did say that at least three of you are a bunch of lawyers, so it is a lawyerly kind of question. Recently, in Parliament, the Minister for Justice said: "Having been Home Secretary I discovered that the legal ownership of that piece of land is a nightmare. There's different bits of it belong to different owners with different rights in respect of it, and, if I may make my own suggestion to my right honourable friend the Home Secretary, one of the things that we have to ensure is that any new legal framework in respect of demonstrations there takes proper account of those legal ownership issues." Do you see the issue of the property rights in various bits of Parliament Square as having anything to do with the scope of the right to demonstrate? After all, if I own the lawn at the back of my house, I can control who says what and when and why and for what purpose.

  Mr Schwarz: I do not think the ownership of the property is relevant except if the offence that is being considered relies on who owns the property. You can imagine two offences: one is the Highways Act—an offence can clearly be committed on the pavement or public road—and the other is aggravated trespass, which can only be committed on land which is not the highway or road. With Parliament Square, as elsewhere, it is either highway or it is private—so either Highways Act obstruction of the highway or it is aggravated trespass. Otherwise, the other public order criminal offences apply wherever the offences take place. I do not think, with respect, it is an issue.

  Mr Crossman: Can I add to that? I think Lord Plant has gone to the heart of the problem of what happens when you have privately owned public spaces, which is that the people who own private land can place restrictions upon that land which are greater than on publicly owned property, which is why the GLA is able to impose extremely severe restrictions upon those who wish to use its property. From our perspective, this goes to a much deeper problem which is that you have large public areas (and this is going slightly beyond the scope of this Committee), particularly shopping centres, and so on, and you are finding that because they are privately owned public spaces you are having extremely onerous conditions being legitimately (I use the world "legitimately" in a legal sense) placed upon those who wish to carry out demonstrations which would not be upheld if it was a public space. This goes to the heart of a much deeper problem of increasingly privately owned public space property.

  Baroness Mallalieu: I do not think there is any question of the restrictions which are available to be used by the GLA ever having been used in relation to any demonstration. When one reads through them they are extremely wide-ranging. The whole point about Parliament Square is, I think, that it has hitherto been policed sensitively, in that the various owners have, with one or two exceptions on one or two occasions, on the whole, been happy to see demonstrators behaving lawfully in that area. There is no reason to suppose that that is going to change. I think it would be a pity to try to look for difficulties where none have actually arisen.

  Q272  Emily Thornberry: If various provisions of SOCPA are repealed, we may find ourselves in a situation where it is no longer necessary for the police to be given notification of assembly. I think there has been a consultation about that, and I know that the Met Police are certainly in favour of being given prior notification of assemblies, and I think you will find that the Clerk of the House of Commons and the Serjeant at Arms are as well. I wonder if we could have your comments on whether or not you felt that it was important, for the management of assemblies outside of Parliament, to be giving notification in advance to the police. If so, what size of demonstration or anticipated demonstration and how much notice?

  Baroness Mallalieu: For practical purposes, with any sizeable demonstration of anything more than a few dozen the reality is any organiser would be extremely unwise not to give that notification, and any responsible organiser would. I do not think there should be a further strict liability. Are we trying to discourage people from spontaneous protest?

  Q273  Emily Thornberry: Or should we suggest it should be voluntary?

  Baroness Mallalieu: I suggest it should remain as it is for the present time, which is, in practical terms, that people do give that notice if it is anything other than a couple of people handing out leaflets. Those couple of people should still be entitled to come and do so if they feel strongly enough on that day to go and do it.

  Mr Rai: If I understand the question, it is about compulsory authorisation prior—

  Q274  Emily Thornberry: Not authorisation—notification. The police need to be notified that there will be an assembly of, perhaps, 20-plus outside Parliament in advance. Do you think that they should?

  Mr Rai: So three cases: compulsory prior authorisation; compulsory prior notification and voluntary prior notification.

  Q275  Emily Thornberry: Yes.

  Mr Rai: I am very reluctant to endorse the idea of making notification compulsory and criminalising the holding of spontaneous demonstrations. That makes me reluctant to endorse that idea. There are strong practical grounds for organisers of demonstrations to contact the police in advance to organise a demonstration of any size because if they do not they may clash with someone else or they may run into police hostility on the day, which stops them at square one. There is a very strong incentive for someone who is trying to organise anything of any scale to do that. The kind of people who are trying to organise something on a large scale who are opposed in principle to co-operation with the police are unlikely to co-operate with compulsory notification either. So I am not sure what would be achieved by that move.

  Mr Crossman: A couple of points. I think it is very easy to draw a distinction between a procession and an assembly. You can see the reasons why a procession needs to have prior notification because it is going to be moving, there is going to be traffic affected, the police will need to know routes, and so on. I do not think there is a particular issue over that. However, the need for some sort of legitimate restriction is apparent. This was actually considered recently by the European Court of Human Rights, who have said that the mere fact that prior notification has not been given is not in itself grounds to prevent an assembly taking place, and it is in the nature of the right to assembly that a spontaneous reaction to events is a legitimate and proportionate act in a democratic society. However, I would say that the reason why anyone should feel that they should notify and co-operate with the police (as well as just making life easier for everyone) is that if you do not give notification in advance then the police would be in a legitimate position to place small, onerous limitations under section 14 once it has happened than would have otherwise been the case, because the police are having to react to a situation where they have not been able to put prior mechanisms in place to ensure that things go in a lawful manner.

  Q276  Emily Thornberry: A restriction under section 14 of what?

  Mr Crossman: Of the Public Order Act. The reason why I am saying it is in your interests, if you are organising something, to notify and co-operate with the police is that when you are actually having your assembly on the day 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.

  Q277  Lord Norton of Louth: I was going to ask about police powers of arrest—whether they are adequate for dealing with breaches of public order—but I think, from what you have already said, the answer is that you clearly think the existing powers are adequate. Could I put a more specific question, following on from what you were saying, Mr Crossman, just to clarify the point about, particularly, loudspeakers, which is clearly part of the problem. Of course this is very hypothetical but let us say I am stood outside with a friend, I have a loudhailer and I am screaming at Parliament, and a police officer decides that I am causing harassment, and there are two of us—we are an assembly. As I understand what you are saying, under the Public Order Act the police officer could take action. If I told my friend to go away and I am still on my own and, therefore, there is not an assembly, am I right in thinking that the police officer then could not do anything about that?

  Mr Crossman: Not on your own description because you used the word "harassment", and the word "harassment" is an element of section 5 of the Public Order Act, which is an offence, and it does not matter if there is one of you, two of you or any more of you. You are right to say that it would need two of you to place conditions upon you as an assembly—if that clarifies.

  Q278  Lord Norton of Louth: That would only relate to the two of us in an assembly, where you can impose conditions, but if I am on my own making a noise which the police officer deems is sufficient to be harassment then the police could take action.

  Mr Crossman: Absolutely. And, of course, there is common law breach of the peace as well.

Lord Norton of Louth: Yes.

Chairman: Can we thank you very much for coming to give evidence today? We are grateful to you; you have informed us enormously of your views and, indeed, we are going to take them very much into account. I do have to say something formal, and that is I should have told you at the beginning that Members have declared their interests relevant to this inquiry (mainly because they are lawyers) and these are available today and on the Committee's website should you wish to read them. Thank you very much indeed.

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