Facilitating Peaceful Protest - Human Rights Joint Committee Contents

3. Letter from the Chair, to Rt Hon Theresa May MP, Home Secretary, 12 January 2011

The Joint Committee on Human Rights is conducting its scrutiny of the Police Reform and Social Responsibility Bill for compatibility with the human rights obligations of the UK. I would be grateful if you could provide us with some additional information.

(a) Protests in Parliament Square (Part 3)

Part 3 of the Bill proposes to repeal Sections 132-138, Serious Organised Crime and Police Act 2005 (SOCPA). These provisions place a prohibition on protests within around 1mile of Parliament without prior notification and authorisation on application to the police. These provisions were repeatedly criticised by the predecessor JCHR, which criticised their introduction as a likely disproportionate interference with the right to freedom of assembly (Article 11 ECHR) and called for repeal of these provisions on a number of occasions.

The Government proposes to replace these provisions with new limitations on the means of protest permitted within Parliament Square Gardens and the surrounding areas. The Bill will create new "prohibited activities" in this area. These will include:

Operating amplified noise equipment (including loudspeakers or loudhailers);

Erecting, keeping erect or using a tent or another structure for the purposes of sleeping or staying in that area for any period;

Placing, keeping or using any sleeping equipment (which includes any sleeping bag, mattress or other similar item) for the purposes of sleeping overnight in that area.

Performing a prohibited activity—without reasonable excuse—after being directed to cease by an authorised officer (including police, employees of GLA or Westminster City Council) will be an offence. Any constable or authorised officer may seize or remove any offending items, including through the use of reasonable force.

These limitations must be justified as necessary to meet a legitimate aim and proportionate to the proposed interference with the rights protected by Articles 10 and 11 ECHR, the right to freedom of expression and assembly. The Explanatory Notes explain the Government's view that these provisions are proportionate in very broad terms.

In relation to the proposals relating to tents and sleeping equipment, the Government relies on the decision of the High Court in the eviction of the "Democracy Village" protesters earlier in 2010. In that decision, the judge considered eviction was proportionate in light of the rights and freedoms of others to access the square, the protection of health and the prevention of crime. While this assessment was relevant to the decision in this case, we are concerned that this does not provide justification specific to these proposals, including an indication of why the blanket restriction on the use of tents and sleeping materials is appropriate, necessary and justified.

In relation to loud speakers and loud hailers, the Explanatory Notes take a similarly broad approach:

"The Government considers that the legitimate aim pursued these provisions is the protection of the rights and freedoms of others—partly those members of the public who should be able to enjoy Parliament Square peacefully, partly those members of the public who wish to protest either with or without using a loudhailer and partly those members of the public who wish to go about their lawful business without disturbance."

The predecessor JCHR accepted that some measures to control disturbances to parliamentary business might be justifiable but called on the Government to consider the proportionality of any measures.[16] I would be grateful if you could provide further information:

1. In light of the justification provided in the Explanatory Notes, why are these measures necessary and limited to the area of Parliament Square Gardens? (Please provide a further explanation of why the reasons for the restrictions in the Bill in the Explanatory Notes justify these specific provisions in the vicinity of Parliament Square, as opposed to anywhere else in the UK)

2. Why are existing measures in the Public Order Act 1986, including the ability of police to impose conditions on marches and demonstrations that become violent or which pose a serious threat to public order, inadequate to regulate protest around Parliament? Please give examples of circumstances when the existing powers have been applied and proved inadequate to protect against public disorder.

3. If there are specific reasons for regulating protest around Parliament, particularly in relation to the use of sleeping equipment or amplified noise equipment, we would be grateful for a fuller explanation of the Government's views of these reasons and the proportionality of the proposed measures, including evidence to support those views;

4. We would be grateful if the Government would explain why it considers that the breadth of the discretion which it is proposed that GLA, Westminster City Council and the police will have in practice is appropriate and legally certain enough to satisfy the requirement that any restriction on protest be prescribed by law; and

5. Please explain why the Government considers that it is appropriate for employees of GLA and Westminster City Council to have the statutory power to use reasonable force against individual protesters in order to seize sleeping equipment or to remove any individual who appears to be breaching the prohibition on sleeping equipment or intends to breach those provisions.

6. We would be grateful if you could explain what safeguards will be in place to ensure that this power will be applied in a way which protects individuals from the disproportionate use of force and respects the individual right to life (Article 2 ECHR); and the right to physical integrity (as protected by Article 8 ECHR).

(b) Private prosecutions for crimes of universal jurisdiction (Clause 151)

Clause 151 removes the power of 'private prosecutors' to seek an arrest warrant from a Magistrates Court without first getting the consent of the DPP, in relation to selected offences alleged to have been committed overseas. The prosecution of the majority of these offences have implications for the implementation international human rights obligations of the UK. For example, the UK has free-standing obligations in relation to the prosecution of offences of torture, under the UN Convention against Torture (UNCAT). Equally, the right to life requires the UK to take measures to provide for the prosecution of offences which endanger life. It is clear that public prosecutions - and prosecutions subject to the authorisation of the DPP - will remain possible. However, we have some concern that these provisions are a retrograde step in the UK's ability to meet its international obligations. The right to bring private prosecutions has been described as "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law."[17]

We consider that where there is an international obligation on the UK to provide for prosecution, any proposed departure from the ordinary criminal procedure should by justified and fully explained by the Government by reference to evidence to support their reasons for action.

This issue is not addressed in the Explanatory Notes. However, during the second reading debate on this Bill in the House of Commons, you explained:

"The Bill addresses another important area of law that is not currently working-the   whole issue of how we apply universal jurisdiction, which is a key principle of   international justice that enables some of the gravest offences to be prosecuted   here, regardless of the state in which the offences were committed.


We are not changing the law because a foreign country has put pressure on us. In   relation to this law, the evidential requirement that is needed in order for somebody to go and get an arrest warrant is significantly less than that required for a successful prosecution."

Prior to the Bill's introduction, the Secretary of State for Justice said:

"[I]t is important...that universal jurisdiction cases should be proceeded with in this country only on the basis of solid evidence that is likely to lead to a successful prosecution—otherwise there is a risk of damaging our ability to help in conflict resolution or to pursue a coherent foreign policy."[18]

At present, on laying of information in connection with an offence, Magistrates can issue as summons or issue a warrant for arrest in order to bring a person before the court to answer the allegation. Under the proposals, the DPP would have to consent before an arrest warrant were issued in any case brought by a person who was not a public prosecutor. Unfortunately, the Bill and the Explanatory Notes provide very little guidance on the test to be applied by the DPP or the procedure that will apply in order to secure the consent of the DPP in order to allow a prosecution to proceed.

7. We would be grateful if you could provide us with a full explanation of the Government's view that a departure from ordinary criminal procedure is required in relation to the offences covered by Clause 151. In particular:

(a)  Please explain what purpose the proposed restriction on the power of the magistrate to issue a warrant will serve, and provide the reasons for the Government's view that the proposed restriction is proportionate and justified.

(b)  In light of the decision to introduce a separate procedure relating to offences of universal jurisdiction, we would be grateful to have a further explanation of the decision that these provisions are necessary now, rather than when the offences were incorporated into domestic law.

(c)  Please provide any evidence relating to the Government's position, including any statistics on the use of the power of arrest in connection with crimes of universal jurisdiction or details of any cases where the Government considers that the existing magistrates' power has been used inappropriately

8. Please provide details on how an applicant will secure the consent of DPP in an ordinary case, including details of any safeguards to ensure that the decision of the DPP is taken in a timely way, in order to ensure that any planned prosecution is able to proceed without delay.

During the last parliamentary session, our predecessor Committee conducted an inquiry on the application of international crimes and international criminal law in the UK. The inquiry focused on gaps and inconsistencies in the implementation of these offences in UK law. Taking evidence from the former DPP, Sir Ken MacDonald, he asked whether the prosecution of offences pursuant to the International Criminal Court Act 2001 (ICC Act) should be subject to the supervision of the DPP rather than the Attorney General. These offences are not subject to universal jurisdiction, but extraterritorial jurisdiction based on the residence of a defendant in the UK. Currently, "proceedings" may not be "instituted" in relation to the offences in the ICC Act and in s1, Geneva Conventions Act 1957 (after amendments by the ICC Act in 2001) without the consent of the Attorney General (Section 53, ICC Act; Section 70, 1957 Act). The former DPP said:

"My view while I was DPP was that all decisions about prosecutions should be taken by an independent prosecuting authority, but that is a slightly broader point. At the moment, the Attorney General's consent is required for these offences, no doubt because of their international elements. For my own part, I would support a regime in which consent is required from the Director of Public Prosecutions rather than the Attorney General."

9. I would be grateful if you could explain the Government's view on the continuing role of the Attorney General in relation to the prosecution of international crimes in the UK.

10. Please explain whether the Government has considered whether to use this Bill to rationalise the role of the DPP in relation to these offences, including by ensuring that any prosecution decisions in relation to international crimes are taken by the DPP acting as the UK independent prosecuting authority.

11. If not, we would be grateful if you could explain the Government's view whether this would be appropriate or not.

It would be helpful if we could receive your reply by 28 January 2011. I would also be grateful if your officials could provide the Committee secretariat with a copy of your response in Word format, to aid publication.

I look forward to hearing from you.

12 January 2011

16   Seventh Report of 2008-09, Chapter 5: http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/4708.htm  Back

17   Gouriet v Union of Post Office Workers [1977] 3 All ER 70. Back

18   HC Deb 22 July 2010 c47WS; Ministry of Justice, News Release, New rules of universal jurisdiction, 22 July 2010. Back

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