Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Examination of Witness (Questions 489-499)

Mr Tony McNulty MP

17 JUNE 2008

  Q489  Chairman: Good afternoon and thank you for coming along. We, as a joint committee, are looking at a whole range of the constitutional renewal issues, but within those is the question of protests and the operation of SOCPA and the extent that some changes may or may not be needed. We are grateful in particular in your role in the Home Office for coming along to advise us on that. Can I first ask you what you consider the main problems with sections 132 to 138 of the Serious Organised Crime and Police Act 2005 may have been? Were any of them foreseeable?

  Mr McNulty: I think we are where we are now because of a range of other things above and beyond the legislation; principally, as I think everyone here will know, the security provision now outside the House, the Parliamentary estate, and I think that connected with a kind of growing concern, summoning a version on mythology that SOCPA was all about banning entirely any demonstrations remotely close to the House of Commons. The combination of those two principally, which I do not think were foreseen—I think SOCPA has broadly worked in its own terms very well—but we do feel and the Constitutional Renewal Bill was a chance to revisit this and consult in the end with the House authorities and then see what the appropriate way forward would be. I do not think it was a case of, as some would have it, SOCPA being some huge sledgehammer to crack a very small nut and now we have changed our mind or there is a massive government u-turn. I do not think things in those terms are appropriate at all. I think time has moved on and it is right and appropriate that we reflect on both the legislation and other circumstances, including the security provision now around the building and that is why we are here now. I do not like the notion of the mythology and I think the Government, as all these papers have made clear, do start very strongly from the presumption of freedom of expression in Parliament Square as well as everywhere else.

  Q490  Lord Norton of Louth: The 2005 Act was brought in to deal with what were perceived as problems and inadequacies in the existing situation. As the 2005 provisions go, presumably those problems will still be there, so to what extent will the police lack the powers to deal with those problems? The Home Office provided this very helpful memorandum on policing protests framework and there is clearly a lot of legislative provision extant that would deal apparently with most of the problems, so where would you say the gap remains?

  Mr McNulty: I am not sure there is a gap that remains save for the concerns that we do quite properly need to raise with the House authorities around noise and access to the House. In extremis in terms of a broad security threat the counter-terrorism legislation will suffice. As the memorandum tries to make clear, we think now that there has been this huge improvement, as everyone will know, in terms of the security paraphernalia around both Houses, that in that context all that is outlined in the memorandum around public order and everything else do prevail and we are on strong territory in terms of the legislative powers.

  Q491  Lord Norton of Louth: The gaps that are remaining from your point of view are relatively narrow gaps in legislative terms.

  Mr McNulty: I would say so but it is very important that in partly handing over the responsibilities encapsulated in SOCPA to the House authorities to review and partly through starting from a very strong premise, I think both the legislative powers and the security paraphernalia will work in future and with a third assumption in favour of rather than against freedom of expression and protest in the Square I think things will be pretty much covered, save for those two small points about noise and access that it is quite proper to raise directly with the House authorities.

  Q492  Chairman: Were the Procedure Committee wrong then in suggesting that there were gaps that needed to be filled by new legislation?

  Mr McNulty: No, I would not say entirely wrong because I have yet to take the view from the House authorities about whether they think there is still something lacking in terms of legislation around particularly those two issues of noise and access. I have my own personal view on that. I think it is probably premature to say they are entirely wrong in terms of something lacking, but quite properly we need to consult with them as part of this process having determined which way forward the Government wants to go.

  Q493  Chairman: Have you had the chance of seeing the evidence yet that was given to us by the House authorities just recently?

  Mr McNulty: I have had a summary of them but I have not read them in absolute detail. We obviously can, and we will, because the last element for us is quite properly to talk to the House authorities about what outstanding concerns they have.

  Q494  Chairman: If we were able to provide you with the transcript as soon as possible you would be happy to provide a written response to that?

  Mr McNulty: Absolutely.

  Q495  Lord Armstrong of Ilminster: I had the impression that the police thought that the Public Order Act 1986 gave them the powers they needed to police marches but did not give them the powers they need to police static demonstrations. The first paragraph of the Home Office memorandum seems to take a different view of that.

  Mr McNulty: I am not sure that that is entirely right. I think they think there are potentially more problems with static demos rather than marches, but I thought that revolved more around the power of arrest when the individual was known. Correct me if I am wrong, but I think that almost goes in part to the notion that you cannot continually arrest an individual having clearly established who that individual is save, for example, because he has been on a static demonstration for some time and that quite properly you can only arrest that individual on evidence or suspicion of an offence, whereas in the normal context in terms of demonstrations and processions, if you have a suspicion that someone may commit an offence, you can quite properly arrest them to ascertain name, address and other details. I thought their difficulty revolved around that rather than more generally.

  Q496  Lord Williamson of Horton: In this Committee we start from the position that the Government has simply proposed to repeal sections 132 to 138 and when I read that I was very pleased myself but that is en passant. Can I follow up two points: the first one is what about maintaining uninterrupted access for Members of Parliament to get into Parliament? It might be possible to get in but if it is very difficult for them to get in and in the mean time we have had to vote on something or something difficult has happened, that is a rather tricky point. My second point is that the Serjeant at Arms has proposed to us that there should be a ban on protests on the whole of the strip of pavement outside the main entrance to Parliament. I do not know if you would like to comment on that? That was a rather drastic solution I think but if you would like to comment on it?

  Mr McNulty: On the second point, if I may, we start from the premise of free expression of protest outside the immediate environs of the estate, so I am not sure that I would be at one with the Serjeant at Arms on that second point. On the first point, the last piece of the equation for us is that we do need to quite properly talk to the House and the House authorities about their view on quite what uninterrupted access means. I have only been here about ten or 11 years and I think even with the new paraphernalia in place we could still be afforded proper and full access. I know at the Lords' end there is provision to get in. Under normal circumstances you do not go in and out that way but that is certainly the way I used during one or two of the rather larger demonstrations that were taking place. I am sure the Countryside Alliance people are wonderful people but I just did not feel like walking through them to try and make my way in, so it is quite proper that we do have that engagement with the House authorities to see if we can establish, no doubt with the Metropolitan Police, what access there should be for particularly large demonstrations. I would say that they are relatively so few and far between that we do need to start from the premise of there being that clear right to demonstrate.

  Q497  Chairman: Do you think that the police have sufficient powers in their right to arrest for obstruction to ensure unimpeded access? Do you think that is a sufficient sanction or do you think more is required?

  Mr McNulty: I think there is an argument that I know the Metropolitan Police have put forward that some of that does rely on really rather antiquated legislation—back to the 1830s in one case—and I would be very happy in the broader sense, not specific to either the policing of demonstrations or in terms of Parliament Square, to look at that in further detail with the police to perhaps update all that. In the broad sweep of things I think the answer is yes.

  Q498  Lord Tyler: In your very helpful memorandum you differentiate between the Metropolitan Police Act 1839 and the Sessional Orders, but from what you were saying just now should we take it that you think access for parliamentarians is of critical importance and therefore that we should be differentiating between when either or both Houses are sitting, or whether, for example, there should be a different regime applying during the long recess, or for a march on a Saturday? Access, as you have emphasised, is something that we all take very seriously and you obviously do too.

  Mr McNulty: Access is important in both circumstances. Clearly there are others who will want to access the House during periods of recess, either to visit, or in many cases to carry on with their business. You will know that the Select Committee sit in September, et cetera, so recesses do vary, but I think the House authorities main concern will be around the uninterrupted access for Members and people employed gainfully to work here during times that the House is sitting. My comments were directed at both. I think there has been a mythology around Sessional Orders in the sense that they are struck and signed and this means that, come hell or high water, the Commissioner of the Metropolis must make sure there is unfettered access. The reality is not quite like that, either in legal terms or more generally, but I do think that the broad point about uninterrupted access, yes, matters in terms of recess, but clearly matters more in terms of when the House is sitting, but I would still start from the premise of trying to come up with a regime that did not differentiate the two because that goes to the broader point of differentiating this place from all other places in the context of policing protests. I do not think that is a way we want to go.

  Q499  Lord Tyler: As paragraph 10 in your memorandum makes clear, Sessional Orders are actually very limited, are they not?

  Mr McNulty: Absolutely.

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