Joint Committee on the Draft Constitutional Renewal Bill Minutes of Evidence

Supplementary memorandum by the Minister of State (Ev 79)

  When giving evidence to the Joint Committee on repeal of sections 132-138 of the Serious Organised Crime and Police Act 2005 (SOCPA) on 17 June, I gave an undertaking to respond in writing to the evidence of the House Authorities, and to look at the Police and Criminal Evidence Act to see if more could be done about addressing the issue of police powers to stop noise nuisance associated with demonstrations.

  Before commenting in detail on the House Authorities' evidence I would like to reiterate the Government's commitment, set out in my oral evidence to the Committee, to work with the House Authorities—as well as members of Parliament and Peers—to establish what, if anything, is necessary to secure the proper operation of Parliament in terms of managing access and noise.

  I also refer the Joint Committee to the memorandum provided to the Committee setting out the main relevant legislation that would apply to policing protests around Parliament were SOCPA repealed (Ev 57).


  The oral evidence from the House Authorities is helpful in clarifying what they think is required in terms of the areas that need to be secured to guarantee access. And I would agree with them that if special provision is required it should apply to a much smaller area than that currently set out in SOCPA.

  The House Authorities' position that special provision is needed has to be balanced against the point repeatedly made by respondents to our Consultation, and the point teased out by Lord Norton in the House Authorities' evidence session, which is what distinguishes Parliament from other public buildings? It seems that this is the key question that needs to run through consideration of the issue of managing protest around Parliament.

  Evidence from the House Authorities mentioned the sheer volume of visitors to Parliament Square. I am not sure footfall is grounds enough for a distinct regime; a more powerful argument, submitted in the House Authorities evidence, is the need to secure Parliament's exercise of its sovereign functions.

  I do not necessarily think this means that different regimes should apply at different times depending on whether the House is in session. The argument for one system which provides clarity for police, protestors and users of Parliament about the boundaries of lawful protest, put forward by the House Authorities and the police, is a strong one. This could be achieved through, for example, a simple power for police to impose conditions on demonstrations to prevent obstruction of access to Parliament.

  Such a power would be far more proportionate, and I think acceptable, than the idea of an exclusion zone advanced by the House Authorities. An exclusion zone in effect amounts to a ban on demonstrations in a certain area which is far more draconian than anything in SOCPA. Two people conducting themselves peacefully at carriage gates would not impact on access; two hundred people could.

  There is of course the wider issue on whether the police already have the powers to secure access. Again, I would agree with the House Authorities that Sessional Orders are not a source of legal authority for the control of access to Parliament—they are a statement of the House's expectations on the Commissioner and do not confer any powers on the police. However the Metropolitan Police Act 1839, I think, does provide relevant powers when considered alongside powers to prevent unlawful obstruction of the highway.


  The issue of noise is more complicated but it is important not to lose sight of the issue continually raised in responses to our consultation of what is special about Parliament? Again we will listen to House Authorities, and to MPs and Peers on whether noise really does disrupt the business of the House or whether it is simply an annoyance.

  I do think that generally evidence to the Committee has confused offences with police powers of arrest to prevent or stop a person committing those offences. This applies to noise in particular. Section 137 of SOCAP creates a very explicit offence of using a loudspeaker within the designated area around Parliament (subject to a number of exceptions). But the existence of that offence has not been effective in dealing with the House Authorities' concerns about noise since SOCPA was introduced.

  What I think the House Authorities are concerned about is not so much the absence of an offence, but that the police do not have a power of arrest (in certain circumstances) if people persist in using the loudhailer. This centres on the far wider issue of the purpose of an arrest power which I will deal with separately under our proposed review of PACE.

  Repeal of section 137 will remove the general offence for using a loudspeaker in a designated area. However, if action involving use of a loudhailer amounted to harassment, alarm or distress then the police may consider that an offence under section 5 the Public Order Act 1986 had been committed. And of course bye-laws pertaining to noise would also continue to apply.

  Lord Armstrong raised the issue of civil injunctions in respect of noise. All I would say in that regard is that the University of Oxford has taken out injunctions which relate to use of loudspeakers which have worked well.


  On the issue permanent demonstrations, I would argue that it is not the permanence per se that is a potential issue, but rather the paraphernalia associated with a particular permanent demonstration. So to disagree slightly with the House Authorities' evidence, it is not a permanent or overnight demonstration that causes a security concern but rather the presence of semi-permanent structures in the immediate vicinity of Parliament. The question then is should semi-permanent structures be permitted as opposed to should permanent demonstrations be permitted? My position is that there are adequate bye-laws to deal with encampments, and that as a point of principle demonstrations should not be limited simply on the basis of their duration. Quite apart from ECHR concerns, from a practical policing perspective I am not sure how a series of consecutive temporary demonstrations that amounted to a permanent demonstration could be prevented.

  And we again have to address the central issue that runs through this exercise—why should the position in Parliament Square be different with regards to permanent demonstrations than anywhere else in the UK?


  The House Authorities consider that prior notification would be helpful to allow the police to plan more effectively for demonstrations around Parliament. The Government looked at this option in considering responses to our Consultation and the majority view was that prior notification could not be justified around Parliament.

  The corollary of having a compulsory notification system is that you create an offence for protesting without notification thereby potentially criminalising protest. Once again we need to be conscious that the central aim of this Bill is the reinvigoration of democracy.

  Evidence to the Committee has noted that it is in everyone's interest to notify in advance—protestors, police and public. Working with police and campaign groups to promote the advantages of advance notification, and pursuing a voluntary notification scheme, would seem to strike the right balance.

  There is of course the additional safeguard that a prior notification system would continue to exist for the garden area of Parliament Square under GLA byelaws—as for Trafalgar Square. This would allow advance planning for any large demonstration which would necessarily encroach on the garden.

  The Committee will want to note that under the Public Order Act 1986 the number of people that constituted a publc assembly on which, in certain circumstances, conditions can be imposed was formerly 20. Protest groups made a point of demonstrating in groups of 19 to get around this limitation and as a result the Government reduced the number of people who constitute a public assembly in the Public Order Act to 2.

  Those groups who want to work with the police will voluntarily notify. Those groups who don't want to work with the police could easily work around such a restriction on numbers by claiming, if the limit for notification was 20 people, that they constituted say five different protests of 19 people.

  There is a risk that a prior notification scheme of any sort is likely to increase the numbers of protestors unwilling to work with the police so that the provision becomes counter-productive.


  To return to the issue of arrest powers, I think it is important to be clear about the purpose of arrest powers:

  Under PACE a lawful arrest requires two elements:

    —  A person's involvement, suspected involvement or attempted involvement in the commission of a criminal offence.

    —  Reasonable grounds for believing that the person's arrest is necessary. Under s24(5) PACE.

  The necessity criteria is set out in paragraph 2.9 of the PACE Code of Practice on arrest.

  The criteria provides for arrest in order to enable the prompt and effective investigation of the offence or of the conduct of the person, to prevent the person or others suffering harm or property being damaged, to enable the person's name and/ or address to be ascertained and to protect a child or other vulnerable person.

  In applying the criteria, the arresting officer has to be satisfied that at least one of the reasons supporting the need for arrest is satisfied.

  Paragraph 1.3 of PACE Code G also states that "the use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used.

  The issue of so called "ongoing offences" has been raised in the current PACE Review. There is confusion around whether an officer can apply the arrest powers where an individual continues or persists with the breach after an officer has issued a warning.

  Whilst we believe that the officer can exercise his or her power of arrest, we intend to remove that confusion by putting forward proposals as part of the PACE Review consultation paper that the necessity criteria includes dealing with person who failed to comply with a request or warning by a constable. This should directly address a number of the concerns raised in the evidence sessions to the Committee.

Rt Hon Tony McNulty MP

July 2008

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