4. Letter to the Chair, from Rt Hon Nick
Herbert MP, Minister of State for Policing and Criminal Justice,
Home Office, January 2011|
Thank you for the letter of 12 January to the Home
Secretary regarding the Police Reform and Social Responsibility
Bill. As the Minister responsible for the Bill, the Home Secretary
has asked me to reply. I am grateful for the points you have
raised and have responded to each in turn.
1. Why are these measures necessary and limited
to the area of Parliament Square Gardens?
The Government considers that these measures are
necessary in the area of Parliament Square Garden because of the
unique characteristics of this area. Parliament Square Garden
is a World Heritage Site, situated directly opposite the Houses
of Parliament, Westminster Abbey and the Supreme Court. Visitors
and members of the public have varying reasons to wish to visit
this site - whether as tourists, to see the Houses of Parliament
and Big Ben; as a cultural experience, by visiting a World Heritage
Site; as an individual interested in the democratic process, by
seeing where Parliament is situated; or as someone who wants to
express their point of view within sight and earshot of Parliament.
This means that we need to balance competing and
legitimate needs of members of the public with members of Parliament
who need to be able to carry out their daily work.
As this is a popular place, it is reasonable to ensure
a level of control over the use of this space in order to ensure
that no one particular person or group of persons can take over
the area to the detriment of others.
For example, at present, there is an ongoing encampment
in Parliament Square that many people find unsightly. This has
the ability to spoil the public enjoyment of this unique location
and even deter people from visiting this unique spot.
The Greater London Authority (GLA) has a statutory
duty to keep Parliament Square Garden in good order and condition.
It has powers to make such byelaws, to be observed by persons
using Parliament Square Garden, as it considers necessary for
securing the proper management of Parliament Square Garden, the
preservation of order and the prevention of abuses there. There
is evidence to show that byelaws have been breached. The Government's
measures support the GLA in maintaining Parliament Square Garden's
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
The Government does not consider that the existing
measures in sections 12 and 14 of the Public Order Act are inadequate
to regulate protest around Parliament. The Government agrees with
the predecessor Committee (JCHR 7th Report, 2008-09 Demonstrating
Respect for Rights, paragraph 137) that protest around Parliament
should be governed by the Public Order Act, in particular through
police powers to impose conditions under section 14. I am not
able to provide examples of when Section 14 has been inadequate
to protect against public disorder in the area around Parliament
as it was specifically disapplied when sections 132 to 138 of
the Serious Organised Crime and Police Act (SOCPA) came in to
force. On repeal of SOCPA, section 14 will apply to demonstrations
in the area around Parliament.
SOCPA powers have proved inadequate to deal with
public disorder, which is why the Government is repealing themrecent
examples include the Tamil demonstrations in 2009.
The byelaws in place, to secure the proper management
of Parliament Square Garden, were shown to be unenforceable during
the occupation of Parliament Square Garden by the Democracy Village
The Government's proposals are intended to prevent
encampments and other disruptive activity on Parliament Square.
The provisions apply to everyonenot just protestors.
The area around Parliament is understandably one of the most protested
areas in the country and space is limited for those wishing to
protest or simply enjoy the amenities of the Square. The Government
is seeking to preserve that space for everyone.
It is also important to note that the predecessor
JCHR recognised there may be something different required in relation
to Parliament Square, something more than the Public Order Act
can currently provide:
"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." (JCHR 7th Report, 2008-09
Demonstrating Respect for Rights, paragraph 133)
The conditions that can be imposed in relation to
public assemblies (i.e. static demonstrations) under section 14
of the Public Order Act are limited to those about the place of
the assembly, the maximum duration of the assembly and the maximum
number of participants. The tests for imposing conditions include
the need to prevent serious public disorder, serious disruption
to the life of the community and serious damage to property.
Section 14 does not give the police specific powers
to limit encampments or noise equipment for public assemblies
(irrespective of whether such encampments are related to protest
or not) and, therefore, it is not possible to address these current
issues in Parliament Square by using only the existing powers
under the 1986 Act.
3. Explanation of reasons and proportionality
of proposed measures, particularly in relation to the use of sleeping
equipment or amplified noise equipment.
The Government considers that the unique situation
of Parliament, as described above, means that it is justified
to have a special regime in place for this small area. The evidence
that the predecessor Committee heard, both from members of Parliament
and those who work in the Houses of Parliament, about the disruption
that encampments outside Parliament have caused to the work of
Parliament (JCHR 7th Report, 2008-09 Demonstrating Respect for
Rights Chapter 5), provides further justification. It is important
to stress that this regime applies to all and not just to protestors.
It is accordingly focused on promoting the use of Parliament
Square and is not about regulating protest per se. The Government
wants to ensure that the area in which the new regime applies
is as small as possible so that it targets the problem of the
unique situation of Parliament Square, without extending any further
The Committee will be aware of both the tents and
loudhailer issues from its daily work in Parliament. The Committee
will therefore be aware that Parliament Square Garden is not a
suitable area to be used for any sort of encampment and that the
Democracy Village encampment caused significant damage to the
Garden that has required considerable remedial works, during which
time nobody could enjoy this unique space.
The Committee will also be aware that Mr Justice
Williams in Mayor of London -v- Rebecca Hall and Others
 EWHC 1613 held, at paragraph 48, that "I am satisfied
that PSG [Parliament Square Garden] is wholly unsuited for camping;
there is no sanitation [
] no running water [
] no public
toilets open 24 hours daily in the immediate area
means for cooking; a camp site is wholly incompatible with the
location; it would deprive the public of the use of the total
area of well-maintained lawn and gardens at the heard of British
democracy and government and a world renowned WHS [World Heritage
I understand that the Metropolitan Police Service
is no longer authorising demonstrations on the footway opposite
Carriage Gates due to concerns about the limited space available.
In effect, people who wish to demonstrate here are not able to
do so due to the presence of the encampment.
The predecessor Committee recognised the concerns
about the long term presence of encampments (JCHR 7th Report,
2008-09 Demonstrating Respect for Rights paragraph 134), "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 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 current encampment is preventing others from
exercising their right to protest on the footways around Parliament
Square Garden. Additionally, Mr Justice Williams in Mayor
of London -v- Rebecca Hall and Others  EWHC 1613 held,
at paragraph 133 " I am satisfied [
] the use of Parliament
Square Garden by tourists and visitors, by local workers by those
who want to take advantage of its world renowned setting and by
others who want to protest lawfully, is being prevented."
Prohibiting tents and other sleeping equipment in this limited
area will ensure that everyone has equal rights to enjoy that
The Government takes the view that there is no legitimate
reason why Parliament Square Garden should become a campsite and
that the restrictions that apply to anyone (not just protestors)
erecting tents or having sleeping equipment are a proportionate
manner in which to ensure that it does not become a campsite.
Limiting the period for which anyone could erect tents or use
sleeping equipment would not solve this since one person could
simply replace another person, leading to a permanent encampment
manned by different people. The damage to the Garden would remain,
as would the problem of the area then being inaccessible to other
members of the public.
The Government does not consider that this is a disproportionate
interference with either Article 10 or 11, because the restriction
in place for the legitimate aims of "the protection of the
rights and freedoms of others" to access Parliament Square
Garden, but also the protection of health and the prevention of
crime (as noted in paragraph 133 of the HC judgment in Hall and
Others). The Government considers that, although some individuals
or groups may wish to use tents or sleeping equipment as part
of a protest, the limitation on this should not prevent the protest
itself. On that basis, although it is accepted that it may interfere
with Article 10 and 11 rights, the Government considers that,
because of the very small geographical area in which this takes
place and the fact that this provision does not prevent protest
itself (rather it perhaps limits the way in which a protest can
be carried out), this is proportionate to the legitimate aims.
In relation to the loudspeakers and other amplified
noise equipment, the Government considers that restrictions along
the lines proposed are required in order to ensure that the rights
and freedoms of others are adequately protected. The Government
is concerned for members of the public who should be able to enjoy
Parliament Square Garden peacefully; members of the public who
wish to demonstrate or protest, either with or without using a
loudhailer; and members of the public who wish to go about their
lawful business without disturbance, including Members of Parliament.
The Government accepts that this restriction can go more directly
to individuals' Article 10 and 11 rights as there is a stronger
argument to say that using a loudhailer, or something similar,
is more commonly a scenario used in exercising Article 10 and
11 rights than setting up a tent. With this in mind, as the Government
has no wish to prevent protest around Parliament, the Government
has set up an authorisation scheme which enables loudhailers and
the like to be authorised. This is considered necessary in order
to ensure that that one or two individuals cannot usurp the rights
of many others and it does not seem disproportionate for authorities
to place limits on duration of use of a loudhailer. The details
of this authorisation scheme are set out on the face of the Bill
in order to ensure that this is clear and accessible to all.
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.
The Government is satisfied that the prohibited activities
are clearly set out on the face of the Bill and readily accessible
to anyone who may be in the controlled area. In addition, the
Government considers it is more proportionate to ensure that,
before anyone can commit an offence under these provisions, they
must first be directed to remove the tent or stop using the loudhailer.
This means that the person, before committing the offence, is
warned that what they are doing is prohibited and therefore has
the opportunity to stop doing it before any criminal liability
attaches. The Government believes this ensures that the offences
are both proportionate and enforceable, as they require a police
officer or authorised officer of the Greater London Authority
(GLA) or Westminster City Council (WCC) to be present at the scene.
It also ensures that any particular circumstances of the individual
can be taken into consideration, as appropriate in two ways -
firstly, it is not mandatory for the authorised officer to issue
a direction and, secondly, there is a defence of "reasonable
excuse" for failure to comply. The Government considers
it appropriate for the provisions to be structured in this way
to ensure that they are properly enforced.
5. Statutory power to use reasonable force for
employees of the GLA and Westminster City Council to seize sleeping
equipment or to remove any individual who appears to be breaching
the prohibition on sleeping equipment or intends to breach those
The power to use reasonable force attaches only to
the power of seizurethere is not a power in the provisions
for GLA or Westminster City Council employees to remove an individual
(whether using force or not). The Government considers that a
power to use reasonable force is necessary and proportionate in
order to ensure that the seizure powers are actually enforceable.
Otherwise, it is unlikely that the seizure powers could be used
unless the particular items were left unattended. The Government
considers that it is right for these powers to be available to
all those who are able to issue a direction, otherwise this would
require more than one authority to be present for the duration
of the direction and any seizure which seems unnecessary, costly
6. Safeguards 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 and the
right to physical integrity.
This power is only available when exercising a power
of seizure. In turn, the power of seizure is only available in
relation to an item which appears to have been used (or is being
used) in connection with an offence under clause 141. The offence
under clause 141 can only be committed if a person, without reasonable
excuse, fails to comply with a direction given under clause141.
In other words, there are several steps that must be taken before
any power to use reasonable force can be used. Therefore, the
legislation itself ensures that this power can only used in limited
circumstances and protects against the disproportionate use of
As for the disproportionate use of force, there are
two safeguards against this in the provision itself. Firstly
the provision makes it clear that the power is to use reasonable
force; any disproportionate force is very unlikely to be "reasonable"
and therefore not authorised by this provision. Secondly, the
provisions make it clear that force can only be used if necessary.
Again, this safeguards against the arbitrary use of force. All
those who can use the power must abide by the safeguards on the
face of the Bill and otherwise risk legal claims for an unlawful
use of force. In addition, all those authorised to use the power
are public authorities under section 6 of the HRA 1998 and are
therefore obliged to act in a manner which is compatible with
On this basis, the Government is satisfied that the
way in which the provisions are drafted mean that the provisions
themselves guard against any disproportionate interference with
both Article 2 and Article 8.
Arrest warrants for universal jurisdiction
7. 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) Purpose of the proposed restriction on
the power of the magistrate to issue a warrant and reasons that
the proposed restriction is proportionate and justified.
The proposed departure from the usual procedure is
modest, affecting a very few cases of crimes under the law of
England and Wales committed elsewhere. Unlike the proposal canvassed
by the previous Government, it does not abrogate the right of
private prosecution in universal jurisdiction casesprivate
prosecutors will still be able to apply for the issue of a warrant.
Moreover, the power of the Police and Crown Prosecution Service
(CPS) to investigate and prosecute alleged offences is entirely
The Government considers it unsatisfactory that a
warrant might be issued in a case where there is no realistic
prospect of a viable prosecution taking place, especially in relation
to a grave crime alleged to have been committed outside the United
Kingdom by a person whose sole connection with this country might
be his presence here as a visitor. The proposed change is designed
to obviate that risk and is proportionate.
(b) Explanation of the decision that these
provisions are necessary now, rather than when the offences were
incorporated into domestic law.
The problem is that the test applied by the court
is much less onerous than that applied by the CPS in deciding
whether a case should proceed. It was only after a warrant was
issued in a universal jurisdiction case, some years ago, that
the implications of that discrepancy became apparent.
(c) 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.
Information about applications of this kind is not
recorded, but staff at the City of Westminster Magistrates' Court,
where such applications are generally heard, are aware of
ten applications for arrest warrants in respect of universal jurisdiction
offences in the last ten years. It is public knowledge that two
of these applications were granted. However, the Government's
argument is not about the number of warrants that have been issued,
nor that warrants have been issued improperly. The Government's
concern is that warrants are capable of being issued in respect
of grave offences in circumstances where there is no real prospect
that a viable prosecution will ensue.
8. How an applicant will secure the consent of
DPP in an ordinary case and safeguards to ensure that the decision
of the DPP is taken in a timely way.
The arrangements for securing consent will be a matter
for the independent DPP, who could be expected to be mindful of
time constraints in making the decision.
9. The continuing role of the Attorney General
in relation to the prosecution of international crimes in the
The Government does not currently propose to change
the requirement for the Attorney General's consent to prosecutions
for certain offences under our law which are committed elsewhere.
When granting consent to any prosecution, it is the well-established
constitutional position that the Attorney acts independently
of Government, applying prosecutorial principles. In cases where
he decides to seek the views of Ministerial colleagues on relevant
public interest considerations that may legitimately inform his
consent decision, such as (if this arose in an individual case)
the implications for national security of prosecuting or
not prosecuting, the decision is and remains his alone. These
are extremely grave crimes of international importance.
As a professional lawyer with a constitutional role at the
heart of Government in maintaining the rule of law,
the Attorney General is well placed to take these decisions with
10 and 11. Use of this Bill to rationalise the
role of the DPP in relation to these offences, ensuring that any
prosecution decisions in relation to international crimes are
taken by the DPP acting as the UK independent prosecuting authority.
For the reasons set out above, the Government does
not consider that it would be appropriate to transfer the consent
function in relation to prosecution of these offences to the DPP.
I hope this response provides the further information
required by the Committee for consideration of the Bill. Should
you have any further queries, please do not hesitate to contact