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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