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Lord Cope of Berkeley: My Lords, the Minister is being extremely helpful, even when he does not agree with us, in the sense that he is hinting what we may do on Third Reading or perhaps in another place to improve our amendment.
The noble Lord made a shrewd point, particularly at the end of his remarks, in relation to the possibility that if the amendments are included in the Bill they may produce an effect opposite to that desired. It would therefore be better for me to withdraw the amendment and I beg leave to do so.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 7:
The noble Lord said: My Lords, in moving the previous amendment I referred to changes in the threshold which must be reached before the Secretary of State bans a procession. The threshold provided in the Public Order order was that the Secretary of State had to consider whether it was likely that there would be serious disorder if the procession took place, serious damage to property, serious disruption to the life of the community and so forth. But when the provision was redrafted so that it could be included in Clause 11, the word "serious" was omitted throughout.
As the Bill is drafted the Secretary of State must have regard to,
To lower the threshold which has to be reached before the Secretary of State can impose a ban is a mistake. It implies--probably wrongly--that the Secretary of State will ban parades more frequently on less evidence of less trouble in the future than has been done in the past. That is not the signal the Government wish to send. On the contrary, it would be better to maintain the word "serious" in the various subsections and that is what this set of amendments seeks to do.
I am speaking primarily to Amendment No. 7. Amendments Nos. 8, 10, 12 and 14 insert the word "serious"--or in one case "undue"--in the relevant parts so as to achieve the changes I wish to achieve and I commend them to the House. I beg to move.
Lord Molyneaux of Killead: My Lords, the question for me in this modest set of amendments was to maintain and respect the terminology currently used in the legislation now in force. It does not seem to be helpful to omit words which have a great deal of significance. I strongly support the amendments.
Lord Monson: My Lords, as the noble Lords, Lord Cope and Lord Molyneaux, explained, these amendments would ensure that the Bill conforms to the words of the existing 1987 Public Order order. The wording in that order was surely wisely chosen. If the words "serious" and "undue" are not included, there is a danger that a parade which has been taking place for 100 years or more may be banned on the grounds that a couple of youths might throw empty lager cans at the parade as it passes or it requires the attendance of an extra constable. That surely would not be acceptable.
Lord Dubs: My Lords, I fully support the thinking behind these amendments. Clause 11 sets out the Secretary of State's power to ban public processions. We have already discussed the proposal that this clause should be extended also to cover counter-demonstrations. It has, however, been noticeable in discussion in Committee that many believe the change in wording between the Public Order order and the Bill is a sign that the Government are intent on lowering the threshold at which parades can be banned. In some eyes that may seem to confirm the impression some appear to have that this Bill is intended to be "anti-parades". I can assure your Lordships that that impression is mistaken, and perhaps it would be worth explaining in a little more detail than I have done so far why there have been changes in the language since the Public Order order.
Article 5 of the Public Order order sets out the Secretary of State's current powers to ban both public processions and open-air public meetings. Under Article 5, if the Secretary of State is of the opinion that,
she may make an order prohibiting such a procession. Your Lordships will notice that those criteria are overwhelmingly public-order based. A high threshold of disruption, disorder etc. is set, but after that threshold has been reached, the Secretary of State may make an order.
One of the main insights of the North Report was that the exclusive reliance on public order factors in the current legislation has provided a perverse incentive to disorder to both sides. The North Report calls instead for public order factors to be balanced against the wider community relations picture, both in deciding whether or not to impose conditions and whether to impose bans on public processions. What the report proposed was that the authorities should be able to take all the factors into account and balance them one against the other. That meant, however, that the current provisions in the Public Order order needed to be restructured. As they are set out at the moment, they are effectively criteria. If any one of the criteria, for example, serious disruption, serious disorder and so on is fulfilled, the condition imposing or banning provisions can immediately be activated. What the report recognised, however, is that there may be circumstances in which the various factors point in different directions. It would be for the parades commission and, in the case of the banning power, the Secretary of State, to balance those various factors and come up with whatever decision is best overall in the public interest.
Accordingly, we thought it would be better for the Secretary of State to be able to take into account all of the factors, even when they are relatively insignificant. All disruption might be relevant, not just serious disruption, although if the disruption is not serious clearly as a factor it will not weigh very heavily in the Secretary of State's thinking. What Clause 11 does not do, however, is reduce the threshold for which the banning power comes into force. After all, in the Public Order order, if any of the criteria applies the Secretary of State is immediately empowered to take action. In Clause 11, however, the factors of disorder, disruption and so forth, are not in themselves enough. The Secretary of State must believe, having regard to all of those factors, that it is necessary in the public interest to impose a ban. That is wholly in line with procedure in Strasbourg when measures are challenged under the European convention. The Government need to demonstrate that any infringement of civil liberty, of which banning a parade is a clear example, must be demonstrated to be necessary and proportionate to the circumstances of the case.
We recognise that banning parades is an emotive subject. As I made clear in Committee, the power to ban parades is serious, raising fundamental questions of civil liberties and rights. The banning powers have only been needed in exceptional circumstances in the past, and I can assure noble Lords that that will remain the case and nothing in the drafting of Clause 11 was intended to detract from it.
We do, however, recognise that Clause 11 as drafted is open to misunderstanding. We want there to be no doubt in anyone's mind, whether they be organisers, objectors or indeed those applying the law, that the Bill is not seeking to make the banning power an everyday tool to deal with contested parades. Indeed, the whole purpose of the Bill is to put structures in place to avoid our ever needing to use last resort powers such as banning. I am therefore happy to accept this amendment in principle. We will look once again at the wording to see whether that proposed in this amendment is the most appropriate, and bring forward government amendments, preferably on Third Reading.
Lord Cope of Berkeley: My Lords, I am most grateful to the Minister for accepting once again the wording that we have suggested. I was slightly surprised by some of the arguments that he used, because he said that, as a result of the insights in the North Report, it was thought wise to take all the factors into account, not merely public order factors, when considering what action to take in connection with a parade. I accept that entirely. That is what has been put in place as regards the commission, and the decisions that it has to make about rerouting, and so on.
However, when, in Committee, I sought to move another amendment, which I have not pursued at this stage of the Bill, to add "traditionality" as one of the conditions in this part of the Bill for the Secretary of State to take into account in deciding whether to ban a parade, the Minister rejected it on the grounds that one should not look at "traditionality" when considering whether to ban a parade; it was such a serious decision that one should look only at what I can summarise as being public order matters. That is the opposite argument to the one that he has just been using. However, as he agrees with the amendments, I had better not quibble about that, at least at this stage. I do not claim that the drafting is necessarily perfect, and I am happy to leave the Minister to reorganise it, if he so wishes. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 14 not moved.]
Clause 13 [Control of alcohol at public processions]:
Page 6, line 35, after ("any") insert ("serious").
"any public disorder or damage to property ... any disruption to the life of the community ... any impact which the procession may have on relationships within the community; and any demands which the procession may cause to be made on the police or military forces".
"the holding in any area of place of any public procession or any open-air public meeting is likely to cause: (i) serious public disorder, (ii) serious disruption to the life of the community or, (iii) undue demands to be made of the police or military forces"
4.30 p.m.
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