Demonstrating respect for rights? A human rights approach to policing protest

Demonstrating respect for rights? A human rights approach to policing protest - Human Rights Joint Committee Contents

5 LEGAL REFORM: PROTEST AROUND PARLIAMENT

Background

110. Parliament is a focus for protest and nowhere is the question of how to balance competing rights more acute than in the streets around the Palace of Westminster. The Government said that "Parliament's status as the natural focus for the electorate to express its views" had been "very strongly articulated" in its recent consultation on the law applying to protest around Parliament.[201] The rights to peaceful assembly and to freedom of expression must, however, be balanced against the requirement of Members, staff and the public to gain access to the Houses of Parliament to go about their work; nor can one group exercise its right to protest to the exclusion of other groups.

111. The debate on the legal framework for protest around Parliament dates back to 2001, when Mr Brian Haw began his "permanent peace protest" in Parliament Square against US and UK military action in Afghanistan and Iraq.[202] His action attracted notice because of its duration, the development of a "peace camp" opposite Carriage Gates - the main vehicle entrance to the House of Commons - and the protracted use by Mr Haw and others of loudspeakers which were audible in some parliamentary buildings. In addition, a number of major demonstrations relating to the military action again raised the question of how access to Parliament could be maintained.

112. The House of Lords passes a "Stoppages Order" at the beginning of each parliamentary session which requires that the Metropolitan Police Commissioner "do take care that the passages through the streets leading to this House be kept free and open and that no obstruction is permitted to hinder the passage of Lords to and from this House during the sitting of Parliament."[203] It is communicated to the Commissioner by Black Rod and is intended to trigger police action under section 52 of the Metropolitan Police Act 1839.[204]

113. Until 2005, the Commons passed a similar Sessional Order. This practice was discontinued following an inquiry by the Procedure Committee in 2003 which concluded that the police lacked powers to enforce the 1839 Act and that, as a result, the Sessional Order was "misleading".[205] The Committee recommended that new legislative provision was required and this led to the introduction of new legislation on protest around Parliament in the Serious Organised Crime and Police Bill, which became law in 2005.

SOCPA in practice

114. Our predecessor Committee published two Reports on SOCPA during its passage through Parliament. The Committee described the clauses about protest around Parliament as "a sledgehammer to crack a nut" which would have been unjustifiable and disproportionate interferences with the Convention rights to freedom of expression and assembly.[206] Whilst the Government brought forward some concessions, the Committee remained concerned about this part of the Act.[207]

115. There have been a number of controversial prosecutions under SOCPA involving peaceful, low-key protestors who declined to provide advance notification of their activities. Perhaps the most notable were the prosecutions of Maya Evans and Milan Rai for undertaking an unauthorised protest in October 2005, which consisted of reading aloud at the Cenotaph the names of British soldiers and Iraqi civilians killed during the conflict in Iraq. In addition, attempts to use SOCPA to end Mr Haw's protest failed.[208] The difficulty with determining what constitutes a demonstration under the Act was illustrated in the evidence we received from the comedian, Mark Thomas. He said he was required to seek authorisation for "protests" involving standing in Parliament Square with a banner in support of the British Legion and, on another occasion, standing with a small group of friends wearing red noses in support of Comic Relief. He contrasted this with examples of protests which the police appeared to have defined as political "media events" or publicity stunts which had not required advance notification, although, in his view, they seemed little different from small-scale acts of protest which had led to prosecutions under SOCPA.[209] For example, Conservative Party campaigners organised an event outside Downing Street, where they dressed as Father Christmases wearing Gordon Brown masks.[210]

116. We drew some of the examples that we had heard about to the Minister's attention and asked him to explain the distinction between demonstrations in Parliament Square, to which SOCPA had been applied, and publicity stunts, which had not been subjected to SOCPA. The Minister responded:

The key difference is that Nelson Mandela and Gordon Brown, when they were unveiling the statue or whatever they were doing, were not demonstrating in Parliament Square. With others, even if it was a publicity stunt, people were looking as to whether they were demonstrating.

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117. The Home Office noted that the legislation on protest around Parliament has not been found by the courts to be incompatible with the Human Rights Act.[212] It also drew attention to a European Court of Human Rights case - Rassemblement Jurassien Unité v Switzerland - where the court ruled that "subjecting peaceful demonstrations to a prior authorisation procedure does not encroach upon the essence of the Article 11 right which can be regulated in its exercise".[213] However, the Court has also held that such regulation of protest should not represent a hidden obstacle to freedom of assembly.[214]

118. The evidence we received during our inquiry was overwhelmingly of the view that the SOCPA provisions relating to protest around Parliament should be repealed. This accorded with the responses to the Government's own consultation exercise, 95 per cent of which favoured repeal.[215] Baroness Mallalieu, President of the Countryside Alliance, said "unsightly as a protest may be, the right to protest must be protected … I am unpersuaded that the area round Parliament should be treated differently than anywhere else in the country".[216] Striking a different note, however, Richard D. North criticised protestors who tried to "trump" Parliament and the democratic process and described protest that invaded Parliament as "the very worst sort of protest".[217]

119. While generally supportive of the SOCPA powers,[218] the parliamentary authorities have commented on continuing problems with noise levels from protests in Parliament Square. The Serjeant at Arms told the Joint Committee on the draft Constitutional Renewal Bill that the police "do not have any powers to stop the noise" and that the process for tackling excessive noise levels with Westminster City Council was too slow: the police "are looking for some powers to be able to deal with the problem on the day".[219] Baroness Mallalieu, however, commented in her written evidence on the importance of using loudspeakers to communicate with the crowd in a major protest and the problems caused during a Countryside Alliance demonstration in 2004 by the prohibition on the use of loudspeakers in Parliament Square.[220]

Current proposals

120. The Government announced in July 2007 that it would review the current law on protest around Parliament and proposed in the draft Constitutional Renewal Bill to repeal sections 132 to 138 of SOCPA.[221] It invited Parliament to consider whether specific provisions, over and above those contained in the Public Order Act, were required to manage protest around Parliament.[222]

121. The Metropolitan Police acknowledged that the current legislative framework creates "some challenges" and called for "any new regime to provide clarity … that can be clearly understood by those who wish to protest, those who work in the area, and the police who have to manage the protest".[223] In oral evidence, AAC Allison argued that protest around Parliament should continue to require advance notification.[224] Other witnesses, however, questioned whether any additional provision was required, over and above the existing Public Order Act.[225]

122. In a written submission, the Mayor of London said he did not agree that "Parliament Square Garden should be used as a free campsite, creating an unsightly public health hazard of offence to thousands of Londoners and visitors who use this public space every day". He drew attention to the costs to the Greater London Authority in maintaining and cleaning up Parliament Square and argued in favour of limiting the duration of protest there, possibly using new byelaws passed under section 236A of the Local Government Act 1972 as amended by the Local Government and Public Involvement in Health Act 2007.[226]

123. Malcolm Jack, the Clerk of the House of Commons, and Jill Pay, Serjeant at Arms, in evidence to the Joint Committee on the draft Constitutional Renewal Bill, argued that prior notice of demonstrations in streets adjacent to parliamentary buildings (and on the Thames, adjacent to the Palace of Westminster) should be a legal requirement in order to guarantee unimpeded access to the parliamentary estate for Members, staff and the public and to control the use of intrusive sound systems. Mr Jack suggested that reliance on the Public Order Act alone would provide "little effective control" of these areas and no means of controlling the use of loudspeakers and related equipment. In addition, he suggested that protest on "pavements and roadways adjacent to Carriage Gates, St Stephen's Entrance, Peers Entrance and Black Rod's Garden Entrance" should be prohibited.[227] He also called for a ban on overnight or permanent demonstrations on Parliament Square, because they are unsightly and pose a security risk.[228] The Clerk of the Parliaments and Black Rod broadly supported the position of the Commons Clerk and Serjeant.

124. The Joint Committee on the draft bill came to the following conclusions:

Sections 132 to 138 of SOCPA should be repealed.
Members of Parliament, staff and the public should have unrestricted access to Parliament, via four key entry points: Black Rod's Garden and Portcullis House for pedestrians and Carriage Gates and Peers Entrance for vehicles.
The police might not have adequate powers to maintain this level of access. The police, Home Office and other interested parties should work together to resolve this but the Committee was not persuaded that an outright ban on protest on the pavement and roadway outside Parliament was necessary.
The legal framework relating to protest around Parliament should not distinguish between sitting and non-sitting days, but the rules could be interpreted more liberally on non-sitting days because protests would be likely to cause less disruption then.
The Home Office and parliamentary authorities should work together to develop a coherent framework for managing noise from protest, with a statutory power to move an individual or confiscate sound equipment as a minimum requirement.
There should be a "careful and comprehensive review of permanent protests, especially in light of the possible redevelopment of Parliament Square".
There should be no legal requirement to obtain prior authorisation from the police before protesting near Parliament.
The police should continue to have a power to impose conditions on demonstrations in Parliament Square to prevent a security risk but not to impose conditions on grounds of public safety, which should in future be dealt with under the Public Order Act.
The adequacy of police powers of arrest would be clarified as part of a review of the Police and Criminal Evidence Act 1984.[229]

Our recommendations

125. Articles 10 and 11 of the ECHR and well-established case law require that any restrictions on the rights to protest and to peaceful assembly must be both necessary and proportionate to a legitimate aim. This is a high threshold which does not permit restrictions which are merely convenient or helpful. If measures already exist (such as under the Public Order Act) which could adequately deal with protest around Parliament, this would significantly reduce the likelihood that additional restrictions would be considered to be both necessary and proportionate.[230] Measures for dealing with protest around Parliament must comply with the European Convention on Human Rights, including the need for the law to be predictable and certain so as not to be arbitrary.

126. In our view, the maintenance of access to Parliament is a persuasive reason to restrict the rights to protest and to freedom of assembly within the areas directly around the Palace of Westminster and Portcullis House. As the Clerk of the House of Commons pointed out, "Parliament is the sovereign body of the country and it is in a unique position".[231] Members must be able to access the building to participate in debates and vote and staff must be able to support their work. We also share the view of the parliamentary authorities that legislation on protest around Parliament should not differentiate between sitting and non-sitting days, in order to ensure that there is clarity and legal certainty for Members, the police and the public, although the way in which protest is policed should take account of the likely level of disruption to parliamentary activity.[232]

127. We share the view expressed by a range of witnesses that the Serious Organised Crime and Police Act 2005 provisions should be repealed, principally because they have proved too heavy-handed in practice, are difficult to police, and lack widespread acceptance by the public. Before considering whether fresh legislation is necessary, to supplement the Public Order Act, we consider four issues which lie at the heart of this debate.

ADVANCE NOTIFICATION OF PROTESTS

128. One of the innovations of SOCPA was the requirement for protests to be notified in advance to the police, so that they could then be authorised. A consequence of this approach has been the criminalisation of peaceful protestors, such as Ms Evans and Mr Rai, and the outlawing of spontaneous protest.[233] Elsewhere in this Report we set out the advantages of protestors and police engaging in dialogue, to ensure that protests run smoothly and safely. These benefits apply equally to protest around Parliament but we are not persuaded that a legal requirement to notify protests in advance is necessary or proportionate to maintain access to Parliament or to achieve any other legitimate aim. Advance notification of protest around Parliament should be encouraged by the Metropolitan Police, in order to facilitate safe protest, but should not be a legal requirement and no sanction should apply to those who choose not to notify the police of their intention to protest solely by reason of that choice.

ACCESS

129. Access to Parliament for Members has long been the central concern of parliamentarians and the police in the management of protest around Parliament. The Metropolitan Police called for "some clear, unequivocal directions about what access to this building means so that everybody understands".[234] The parliamentary authorities have indicated the four entrances which should be kept open at all times and raised the prospect of an outright ban on protest in their immediate vicinity.[235] Eric Metcalfe of Justice supported the idea of a cordon around specific entrances, "in times of very vigorous protests".[236]

130. We agree that access to Parliament must be maintained at all times, by means of the entrances specified by the parliamentary authorities. We are not persuaded, however, that this can and should be achieved by banning protest on specific areas of road and pavement. A legislative solution would run the risk of criminalising innocuous acts of peaceful protest - for example, an entirely peaceful protest on a non-sitting day outside Portcullis House - and could attract protestors who were keen to test the boundaries of the law, or who would welcome prosecution in order to publicise their cause. An outright ban would also be likely to breach the ECHR for being a disproportionate response to the problem of maintaining access.

131. We recommend that the parliamentary authorities work with the police to develop clear conditions which can be imposed on protestors under the Public Order Act, amended if necessary to achieve this aim, to ensure that access is maintained at all times. Conditions might include requiring protestors to keep clear of the vehicular access points, to permit access to Parliament and to ensure public safety around the gates. This would be a more flexible means of throwing a cordon around Parliament during times of vigorous protest than can be provided for in primary legislation and need not unduly restrict small scale protests or protest on non-sitting days. Such an approach would, in our view, be more likely to be accepted by protestors than another "sledgehammer to crack a nut". We consider possible problems with the Public Order Act below.

NOISE

132. Noise levels from the long-standing protest in Parliament Square are a continuing cause of concern to a significant number of Members of Parliament. For example, Julian Lewis MP raised the issue in Parliament earlier this year, noting that:

Westminster City Council has admitted that its permission to make broadcasts from the Square ran out almost a year yet [sic], in anticipation of a statement from the Government, it has done nothing about it.[

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133. The parliamentary authorities have stated that the police lack powers to intervene to deal with an excessively noisy protest.[238] One possible approach would be to regulate the use of loudspeakers in Parliament Square using conditions under the Public Order Act, backed up by an explicit power to confiscate equipment. There may be difficulties, however, in determining the appropriate maximum noise level from a protest and measuring if it has been exceeded. We recommend that the Home Office, the police, Westminster City Council and the parliamentary authorities should develop alternative arrangements to manage noise levels from protest in Parliament Square, including consideration of whether legislative change is necessary and whether maximum noise levels should be imposed and enforced effectively.

LONG-TERM PROTEST

134. The "peace camp" on Parliament Square may justifiably be described as unsightly but it in no way hinders the effective working of Parliament. We have heard no good argument in favour of introducing an arbitrary limit on the duration of protests around Parliament, although we note the potential security concerns associated with the existence of the camp. We share the view of the Joint Committee on the draft Constitutional Renewal Bill that the police power in the Serious Organised Crime and Police Act 2005 to impose conditions relating to security issues should be continued for the area around Parliament. We are also concerned to ensure that the existence of long-term protests does not prevent or deter other people from protesting in Parliament Square. The police should have the power to impose conditions on protests in order to facilitate protest by others - for example, where more than one protest takes place in Parliament Square on the same day.

135. We note that the Greater London Authority may consider creating new byelaws to manage protest in Parliament Square, including to limit the duration of protests. Given the potential significance of these new byelaws for the rights to freedom of expression and assembly, we recommend that section 236A of the Local Government Act 1972 be amended to set out the framework for balancing relevant interests.

136. We recommend that the Authority involve the police, Westminster City Council and the parliamentary authorities in discussions about any new byelaws; and that any new restrictions on the rights to freedom of assembly and expression are not disproportionate.

SUPPLEMENTING THE PUBLIC ORDER ACT

137. We consider that protest around Parliament should be governed by the Public Order Act, in particular the police power to impose conditions on protests under section 14. There is a case, however, for amending section 14 to deal with the specific circumstances of Parliament. Although the Public Order Act could be invoked if protestors sought to prevent people from entering Parliament, it is unlikely to be of assistance where there is doubt as to whether the "purpose" of the organisers is "to intimidate others". Consequently, we recommend that the Public Order Act should be amended to enable conditions to be placed on static protests where they seriously impede, or it is likely that they will seriously impede, access to Parliament. We set out an amendment to achieve this, below.

AMENDMENTS TO THE POLICING AND CRIME BILL

138. It is now four years since Parliament had the opportunity to debate the law on protest around Parliament, since which time the provisions passed in 2005 have been widely discredited. Debate on this issue now would ensure that the Government could hear and reflect on the views of both Houses while drawing up its own proposals and would encourage the Government to conclude its own consideration of the matter without undue delay.

139. We intend to table amendments on protest around Parliament to the Policing and Crime Bill in order to prompt debate in both Houses. The amendments we suggest below are essentially probing amendments, based on our recommendations, rather than a fully worked-out scheme for tackling the problems we have discussed. Crucially, we note that the onus is on the Government to bring forward the necessary reform which commands the support of the police, the parliamentary authorities and the local authorities.

Protest around Parliament: repeal of provisions in the Serious Organised Crime and Police Act 2005

To move the following clause:

"In the Serious Organised Crime and Police Bill 2005 (c. 15), sections 132 to 138 are repealed."