Moved by Lord Dubs
293: Before Clause 55, insert the following new Clause—“The right to protest(1) The Public Order Act 1986 Part II (Processions and Assemblies) is amended as follows.(2) Before section 11 insert—The right to protest(1) Everyone has the right to engage in peaceful protest, both alone and with others.(2) Public authorities have a duty to—(a) respect the right to protest;(b) protect the right to protest; and(c) facilitate the right to protest.(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to—(a) protect national security or public safety,(b) prevent disorder or crime, or(c) protect public health, or the rights and freedoms of others.(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (acts of public authorities).””Member’s explanatory statementThis amendment would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities while recognising that the right to protest may need to be limited to protect other legitimate public interests.
My Lords, I am privileged to be a member of the Joint Committee on Human Rights, and these amendments—there are at least seven in my name—are based on its reports, so the Government have been fully warned of what we are going to say, because they have had those reports before them. This group of amendments is probably the substance of a whole Bill in themselves and it is very difficult to keep one’s remarks short. I should just say that I picked up a message about us on my phone, saying “Everyone looks knackered”. I just pass on that comment from the wider public.
Before I get to the substance of the amendment, I should make it clear that I have been on a large number of demos and protests over the years, even against Labour Governments. The most recent ones have been on child refugees in Parliament Square, and outside the Foreign Office in support of Richard Ratcliffe, who was on a hunger strike to try to get his wife out of imprisonment in Iran. I should add that, when I was a Minister in Northern Ireland, there were demos against me for what I was doing or failing to do. So I have had some experience of demos on all sides. I do not know whether that gives me much authority to speak, but at least I have had the experience. When I talk about not making noise on demos, I speak from the experience of having made a lot of noise on demos, because it is the thing that keeps one going and that attracts attention.
Let me get to the substance of this. I repeat that I am speaking to at least seven amendments, but I will try to be as brief as possible. The first is to do with the trigger for imposing conditions on processions and assemblies in England and Wales. A lot of what I want to say is about the trigger and the adverse effect that it will have. Articles 10 and 11 of the ECHR guarantee the right to peaceful protest, and any interference with non-violent protest is therefore an interference with those convention rights. That is absolutely clear and it is why the Joint Committee has taken such a firm stand.
Any restriction on the right to protest that targets noise is a particular concern, as it strikes at the heart of why people gather to protest. Larger and well-supported demos are much more likely to be louder. Therefore, restrictions on noise could disproportionately impact demonstrations that have the greatest public backing, which would be a perverse outcome.
The Joint Committee on Human Rights heard from witnesses who suggested that restrictions on protests based on the noise they produce pose
“an existential threat to the right to protest.”
One witness told us that protests
“lack value and are pointless if they cannot be heard and seen”.
I speak from experience. Perhaps not the demo outside the Foreign Office recently in support of Richard Ratcliffe’s hunger strike, but every other demo that I have been on has been about noise and having our voice heard, whether it is has been on marches or in Parliament Square when we have talked about child refugees. This is absolutely fundamental.
The second aspect is that the new noise trigger proposed in the Bill would allow for restrictions on peaceful protest to prevent the intimidation or harassment of “persons in the vicinity” suffering
“serious unease, alarm or distress”.
That is significant. Preventing intimidation and harassment, which are already criminal offences, would fall within the legitimate aim of preventing crime and disorder. However, the inference with Articles 10 and 11 of the ECHR, which refer to people being involved in making noise that causes alarm or distress—particularly noise that causes “serious unease”—can reasonably be justified only on the basis of
“the protection of the rights and freedoms of others.”
The proposed new noise trigger also puts considerable responsibility on the police officers responsible for the decision whether to impose conditions. The conditions on public processions and assemblies represent a restriction on the right to protest that is not necessary in a democratic society. The amendment would remove the proposed new trigger.
I also refer to the effect of the trigger on a protest by a single person, as is specifically itemised in the Bill. Clause 61 extends the proposed new trigger based on noise generated by protest to cover protest by a single person, in addition to assemblies of two or more or processions. What can a single person do to disrupt good order? A single person would still be exercising their right to free expression under Article 10 of the ECHR. For the reasons given above in respect of Clauses 55 and 56, the Joint Committee on Human Rights opposes the introduction of the new trigger as an unjustified interference with this right. We also noted in our report that
“a single protester has less ability to produce seriously disruptive noise than a large assembly or procession.”
That is pretty evident, is it not? It should be added that existing criminal offences dealing with whether the noise crosses the line and becomes harassment or a threat to public order are available and easy to use against a single protester.
I turn to the question of awareness about the conditions that may be imposed and how they will impact on demonstrators. The Bill seeks to prevent demonstrators who breach conditions imposed on processions and assemblies avoiding prosecution on the basis that they did not know that such conditions were in place. However, it goes too far, sweeping up those who breach conditions of which they were genuinely and innocently unaware.
Amendments 309 and 312 would prevent this, ensuring that only those who know that conditions have been imposed on a demonstration or avoid gaining knowledge of the conditions deliberately and recklessly can be prosecuted for breaching them. A breach of conditions imposed by the police may justify a prosecution, but the potential penalty for a non-violent offence of this kind must not be disproportionate. An overly severe penalty may have a chilling effect on those considering exercising their right to protest. For this reason, Amendments 311 and 312 would remove the increased sentences proposed in the Bill, which seems a moderate suggestion indeed.
I will move on to the proposal to penalise people who “intentionally or recklessly” cause “public nuisance”. The Bill introduces a new statutory offence of
“intentionally or recklessly causing public nuisance”, which was previously an offence under common law. The committee reported:
“We are seriously concerned that, as currently drafted, the public nuisance offence may be used to criminalise non-violent protest that would be protected by Articles 10 and 11 of the ECHR. The offence would catch not only individuals who cause ‘serious annoyance’ or ‘serious inconvenience’ to the public but also those who create a risk of causing serious annoyance or serious inconvenience.”
It went on:
“It is not entirely clear what behaviour the Government and police are trying to tackle with the new offence” that would not already be tackled by existing legislation. That runs through a lot of the difficulties we have had: the existing legislation is there, but the Government simply want to take it further.
The report says the new offence runs the risk of being
“used as a catch-all offence because of the wide range of conduct it covers.”
The JCHR has
“serious concerns about the new offence being included in Part 3 of the PCSC Bill, especially given the broad drafting which would catch non-violent protest. Protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating in peaceful protest.”
A protest must make an impact; it must be heard and seen, otherwise what is the point of a protest? Yet the Government seek to penalise what is a legitimate democratic activity. Under the current law, as I have said, there are a plethora of offences already available to the police.
The report says:
“The essence of the public nuisance offence is causing harm to the public or a section of the public. However, as drafted, the offence is confusing and could be read as meaning the offence is committed where serious harm is caused to one person rather than the public or a section of the public. This does not achieve clarity for either the police or protesters. The current drafting also risks the offence being broader than the common law offence it replaces.”
I am going to move on quickly. There needs to be a balance of rights between protesters and the public. I think that is accepted in the European Convention on Human Rights but is not something that runs through the drafting of the Bill. The report says:
“Current rhetoric around protest … focuses on discussions about ‘balancing’ the rights of protesters against the rights of members of the public … Whilst protests may cause inconvenience”— and I fully accept that they may—
“they are also fundamental in a democratic society to facilitate debate and discussions on contentious issues and this is of value to the public generally … Whilst the ECHR provides that protests can be limited in order to protect the rights of others, any restriction of the right is only lawful if it is both proportionate and necessary.”
It is my contention that, throughout the Bill, the measures are not proportionate and many of them are not necessary.
Public authorities, including the police, are under a negative obligation not to interfere with the right to protest lawfully and a positive obligation to facilitate peaceful protest. This amendment would introduce a specific statutory protection for the right to protest and sets out the negative and positive obligations of the state in relation to protest. I beg to move the amendment—and I hope we are not all looking knackered.
My Lords, I am not a lawyer, and I have not been briefed to speak; I am only following my instinct. I have not intervened earlier in these proceedings because it is difficult remotely to pick up on the cut and thrust of a debate on issues that command strongly held views. This debate will inevitably draw on strong feelings this evening.
I will concentrate my remarks on one amendment, Amendment 293, moved by my noble friend Lord Dubs, who has spent a lifetime promoting issues of freedom and liberty. The amendment as currently worded, along with associated amendments, is an attempt to weaken provisions in parts of the Public Order Act 1986. My noble friend is well aware of my reservations, in that while Amendment 293 would further restrict a public authority’s power to limit the right to protest, it would still leave the door open for the prevention in advance of disorder, as referred to in subsection (3)(b) in the proposed new clause in the amendment. As I understand it, both would remain in breach, chargeable under highways and public order legislation.
It is at that point that I part company on the amendments. For me, liberty and freedom in this context must stand at the heart of the law. I am talking of the freedom to demonstrate, to object and to peacefully oppose—indeed, simply to say, “No, not in my name”. Under the provisions proposed for the Bill, they are all to be further subject to the approval of a statutory authority in the form of a mere mortal police officer acting on behalf of the state. As I understand it, it is a police officer who would be deciding on whether a liberty, in the form of a demonstration, could be deemed to be excessively disruptive potentially—yes, potentially. I can never accept that.
There are times when, unless people are prepared to challenge authorities and institutions, nothing will change. I am of a fairly moderate political disposition, so what I am about to say may seem out of character, but so be it. We now face an environmental crisis of immeasurable proportions, and I am not convinced that our political institutions have the wherewithal to take up the challenge without being pushed, particularly as our emissions, although lower than some, are among the highest in the world.
I find it hard to condemn those who, in a spirit of peace, seek to disrupt. We are talking of a liberty which once fired up a whole generation of young women—the suffragettes—to fight for the right to be heard and to vote. These women felt so strongly that they were prepared to go on hunger strike and undergo imprisonment, humiliation and division in their families, to break the law and face the wrath of wider society—in the case of Emily Davison, to lay down her life in the pursuit of that liberty and freedom. I liken the whole debate and struggle on climate change to that of the suffragettes. I see no difference. They are one and the same, and we condemn them at our peril.
If I were a young man and in good health, I confess that my every instinct would be to join these courageous men and women on the streets, sacrificing their liberty on what will be the defining issue for their generation over this century—the survival of the planet. They have my support. I know they are breaking the law. So did the suffragettes; they knew the risks they were taking.
Unfortunately, there will be times during their campaign of disobedience when a few irresponsible individuals will engage in violence. They must be condemned at every stage. Their excesses should not be used to undermine the credibility of a growing movement of decent men and women whose only interest is the survival of the planet. One day, they will be greatly thanked.
I perfectly understand the dilemma for Parliament in the conflict between those who want to protest and those who want to go about their daily business unimpeded. I am not arguing that police officers under any circumstances cannot intervene and arrest those who, during static protest or on marches, engage in violence. I am arguing that police officers and those engaged in the law should not have further power to prevent such protests which in their view and belief may lead to a future breach of the law. This is a slippery slope. The Government would do well to think again.
There are times in life when the law must be challenged from outside Parliament—even, indeed, outside the courts. That must apply in particular where the law is frozen in aspic. Survival of the planet is one such issue, and I have nothing but admiration for those who go about their endeavour in a spirit of peace. Any amendment to the law in today’s amendments must reflect that freedom.
My Lords, I will speak to two amendments in my name. By way of preface, I must say how much I agree with the noble Lord, Lord Dubs, in his masterful presentation of the case against what the Government are doing, and of the observations of the Joint Committee on Human Rights.
The noble Lord mentioned proportionality. Proportionality was central to the case of Ziegler and others in the Supreme Court back in July. I thought the wording it used, as reported by the Times, summed up my feeling in a way:
“Peaceful protest was capable of constituting a ‘lawful excuse’ for deliberate physical obstruction of the highway … There had to be an evaluation on the facts of each case to determine whether any restrictions on the protesters’ rights to freedom of expression and freedom of peaceful association was proportionate. There should be a certain degree of tolerance to disruption to ordinary life caused by the exercise of those freedoms.”
I do not think the Government like the concept of proportionality, and the whole direction of these clauses—and those in the subsequent group, more recently tabled —illustrates that.
The amendments I have tabled are probing one feature, which is the word “unease”. They are Amendments 297 and 307. In the new subsection that the Government propose, which is about
“the noise generated by persons taking part in” an assembly, there is reference to the impact it may have on “persons in the vicinity” of that assembly
“if … it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.
A court is going to have some fun working out what the characteristics are of people likely to be in the vicinity, but that is another part of the story.
The subsection also applies if
“it may cause such persons to suffer serious unease”.
That is a very low bar indeed. It made me think of the Governor of the Bank of England speaking to the Treasury Committee a couple of weeks ago. He said that he was “very uneasy” about the inflation situation¸ but not so uneasy that he sought to raise the interest rates. In his view of vocabulary, “uneasy” is clearly nowhere near the top at all.
It is the purpose of numerous protests to make people uneasy; I have been made uneasy by both the intensity and subject matter of protests. The protests that went on in Glasgow were designed to make people feel uneasy about what is happening to the planet, and to do so in ways which might even more directly make them feel uneasy, by noticing that such a large number of people are involved and making such a lot of noise.
However, it has always been so. John Wesley and his followers made people uneasy, by preaching loudly out in the open air and singing loud hymns. It was to make them uneasy about the life they were leading and trying to cause them to change their way of life. I have been confronted in my time by all sorts of demonstrations and protestors, putting forward views which I sometimes agreed with and sometimes did not. But being even seriously uneasy does not seem any reasonable basis on which to restrict the rights of protest. I simply cannot conceive that the Government have any other intention than to make protest much more difficult, even in circumstances which most people, on reflection, would accept were reasonable.
My Lords, we have had some powerful speeches already and it is a real pleasure to hear them. This was supposed to be the worst bit of the Bill. It is a terrible Bill but this was meant to be the absolute pits. However, the Government have made things worse by bringing in the latest amendments, so this is not the worst bit any more; it is just the next worst bit.
I have signed about a dozen amendments in this group. I could have signed them all and definitely support them all. Many of them are good, and worth raising, but the only real way forward is to remove these clauses altogether. I hope that opposition parties can join together to do that on Report, because our civil liberties and human rights are far too important to be negated in this way.
Amendment 293 from the noble Lord, Lord Dubs, sets the scene perfectly because it stresses the importance of the right to protest in a free country. We always look down our noses at all these illiberal countries abroad who suppress their citizens—their human rights and liberty to protest—but this Government are trying to do exactly the same. Any restriction on the right to protest has to be really carefully considered, not rushed in with 18 pages of amendments at the last minute and without any proper discussion.
There is a balancing act between the rights of individuals and those of wider society. The balancing act already happens because there is a great number of restrictions on protest in this country. The police have many powers, which they use, and many tactics—some of which go too far, such as kettling. The Government want to ramp up these restrictions even more: being noisy or annoying could be banned. Some Peers could be banned because they are annoying. We could end up with the only protests, as has been said, being the ones that are so quiet and uneventful that they achieve absolutely nothing.
This is deep, dark politics. This is about a Conservative Government wanting to rewrite completely how we operate within society, as individuals against the state. I think they are planning, or hoping, to remain the dominant political party for generations to come. That is what could happen through these terrible amendments.
If you make protests impossible to perform legally, criminalise non-violent direct action, abolish or restrict the ability of citizens to challenge the Government in court through judicial reviews, turn people against lawyers, gerrymander the election boundaries and dish out cash in the way that looks best for Conservative MPs, that is deep, dark politics. Many of us here are not particularly political and perhaps do not see the dangers inherent in what you, the Government, are doing. It all seems like a calculated ploy to turn all the cards in favour of an unaccountable Government that cannot be challenged in the courts, at the ballot box or on the streets. We all have to unite against this and deleting these clauses from the Bill is the beginning of that fight.
I have a tiny quibble on the issue that noble Peers have mentioned about the survival of the planet. The chances are that the planet will survive. What we are doing in this climate crisis is destroying the little bit of ecosphere that supports human life, so that is what we have to think about. It is not about survival of the planet but about survival of people.
My Lords, I may be able to tone down some of the hyperbole. Let’s go back to first principles on what this Bill is about. I think we are all united in this country in support of our right to protest. That is a very precious right that we all feel strongly about. Nobody wants to put that at risk and nobody is trying to put that at risk.
In a world which is becoming more divided, with people having very strong, trenchant positions in the views they adopt, we are trying to ensure that it is possible for people to express their views in a way which does not undermine some of the other social norms in our society which allow us to disagree but be united at the same time. Over the last few years, we have seen a new fashion of protest which is carried out in a way that is unacceptable to other people in its disruption; whether they agree with the matter in question or not is almost irrelevant. We need to try—I believe this is what the Government are trying to do through this Bill—to make it possible for protests to continue in a way which does not divide society further.
I do not support the amendments, but I agree with one point, made earlier by the noble Lord, Lord Dubs. We have to be very careful on the issue of noise. It is impossible for people to protest silently and I will look to the Government for reassurance on that matter when the Minister comes to respond.
Let’s not forget what we are trying to do here: allow people to disagree in a way which does not divide us further. I worry that some of these amendments will perpetuate a division which we do not want to see happen in this country.
I rise to support Amendments 294 and 298 because I believe that Clauses 55 and 56, which introduce noise triggers for public demonstrations and assemblies, are fundamentally undemocratic and will have a detrimental effect on free speech in England and Wales. I apologise that I was not able to speak at Second Reading, but I was unable to attend the House on that day.
I have always thought of the Conservative Party as supporters of free speech, so I am disappointed that this Government seek to take that right away through these clauses. I repeat the quote from Jules Carey that the noble Lord, Lord Dubs, gave that this is
“an existential threat to the right to protest.”
Of course, these clauses are a response to the outrage at BLM, Extinction Rebellion and Insulate Britain protests which have been incredibly disruptive to the lives of thousands of people across the country and especially in London. But the blocking of highways was always illegal under the Highways Act and the existing triggers in the Public Order Act 1986 can be harnessed by the police to control the other protests. The House will debate the new draconian measures the Government plan to introduce later which, as was mentioned at the beginning of today’s Committee debate, seems to be a poor way to treat the House.
The introduction of noise as a criterion for the police limiting or stopping protests and assemblies seems to me an unnecessary and damaging extension of police powers. The factsheet for the Bill promises that the police will use the noise trigger only
“where it is deemed necessary and proportionate.”
But “proportionate” must be subjective as a threshold for the trigger.
This brings me to support Amendment 297 of the noble Lord, Lord Beith, on the definition of “serious unease”, which is so central to the threshold of the noise trigger. As the noble Lord said, it is a very low bar. In fact, I am seriously uneasy about the provisions in the Bill, but, quite rightly, this should not stop the Government putting them forward. In the present culture wars, there are cries from all sides not to be offended or allowed to feel uneasy. I am certain that unease and offence are a central part of democracy and free speech. I ask the Minister: can the police really be expected to predict such a subjective response?
This unease trigger also refers to
“persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.
I know that this is an objective term, but how can it be applied when a protest is going down a high street or busy thoroughfare where a wide-ranging demographic is represented? A reasonably firm teenager, having attended a fair few festivals, will have a completely different response to a noisy protest from that of a reasonably firm pensioner. Surely that makes it difficult to be objective when predicting the effect of noise on passers-by? This point was well made by the Joint Committee on Human Rights.
The example of how the trigger will be applied was given by the Minister, Victoria Atkins, in the other place. She said:
“A noisy protest outside an office with double glazing may not meet the threshold, but a protest creating the same amount of noise outside a care home for elderly people, a GP surgery or small, street-level businesses might, given the level of disruption likely to be caused.”—[Official Report, Commons, Tenth Police, Crime, Sentencing and Courts Bill Committee, 8/6/21; col. 394.]
Are the police supposed to be considering the noise-proofing of the buildings along a protest route or around the location of an assembly before giving their conditions to the organisers? There must be better uses of police time.
If the Government are so worried about noise outside specific locations, such as GP surgeries and care homes, would it not be better to protect these people by restricting protest outside a specific location using a PSPO? Yet the Minister has just rejected an amendment on the extension of fast-track public space protection orders for schools, saying that there were enough laws in place already. These have proved effective at stopping protest at certain special locations, which is what the Government seem to be so concerned about.
In April 2018, Ealing Borough Council was the first authority to create a buffer zone against pro-life protesters around an abortion facility on Mattock Lane. It imposed the public spaces protection order, following reports of intimidation, harassment and distress from women using the facility. Last year, Manchester City Council officials made a similar order, placing a buffer zone around the Marie Stopes clinic in Fallowfield to stop pro-life protesters getting too near the building.
The Government should not only be worried about how this noise trigger chills free speech; there is also a threat to the police from the backlash by protesters, if they implement the trigger during a demonstration. Surely the Minister would want to avoid such an eventuality. It is hard to think of many causes and protesters who would give up the right to make a noise and to be noisy, even if it does cause serious unease to passers-by.
I appeal to the Minister to listen to the numerous groups from across the country and the political divide who have asked for the noise trigger to be removed from the Bill. I ask her, in doing so, to prove that the Government do indeed support free speech.
My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.
He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of
At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.
I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.
By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend
“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”, although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:
“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”
The Act defines both “place of work” and a “trade dispute”.
I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action
“in contemplation or furtherance of a trade dispute” will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.
Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.
The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that
“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”
In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.
As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.
The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.
Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in
“serious disruption to the life of the community” or
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.
Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”, but the draft regulations that deal with a
“serious disruption to the life of the community” state:
“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”
They go on to say that a
“‘time-sensitive product’ includes newspapers and perishable items” and
“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”
If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.
Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.
I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.
If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.
The existing test in, for example, the Public Order Act, for the police to impose conditions on sessions or assemblies is about a threshold of serious public disorder, serious damage to property or serious disruption to the life of the community. That is a certain threshold. With Part 3 of the Bill, we are moving from that threshold of serious disruption or serious damage to noise, which may result in
“serious disruption to … an organisation”, or noise which will have a relevant and “significant impact”—not disruption but an impact—
“on persons in the vicinity”.
That could be a wholly peaceful protest that makes some noise outside a sweatshop or a place that sells Chinese clothing. It could apply to a one-person protest outside that shop saying to people, “Please don’t buy this clothing, because it comes from China and there have been terrible human rights violations, and we are also very worried about climate catastrophe.” There may be a bit of noise and a bit of an impact, but a significant one, because consumers may say, “Actually, I don’t want to buy those clothes any more.”
That one person made some noise. I am making some noise now. I hope it is not intimidating anybody, but I am making some noise now to make that impact. I have the privilege of doing it in this protected space. People who get to write columns in newspapers have that privilege, too, but what about the people who do not have the platforms that we have? What about people who have to take to the streets—peaceably, not even going as far as the suffragettes? I am not talking about putting bricks through windows; that is already covered by damage to property. We are not talking about damage to property or harm to people in the sense of violence; we are talking about noise—that is, communication—and impact. You listened to me and you no longer want to buy that product or behave in that way. You have been persuaded by my noise; by my communication I have made an impact. Is that not the essence of the right to freedom of expression?
We have talked about the conditions and whether people ought to know about them. We are talking about imprisonment for up to 51 weeks. I do not think it is hyperbolic to suggest that this legislation, if passed unamended, will be as notorious as was the Cat and Mouse Act in the context of the suffragettes. I am not saying that because this is a Conservative Government; I am saying it because it is a Government of the United Kingdom, who ought to be setting examples to the world. We could all cite our favourite protests from history. I think the suffragettes are popular on both sides of this Committee. Some of us will cite the anti-apartheid movement or the civil rights marches in the United States—pick your favourite protesters, your legendary protests on whatever side of whatever argument, it does not matter. As I said to the noble Baroness, Lady Fox, on the previous group, I will defend the protest rights of people I really disagree with.
I once thought that people such as the present Prime Minister agreed, because I can remember when he was not Prime Minister but a journalist and passionately defended free speech. He, like me, disagreed with the Labour Government for wanting to suppress it and for wanting to lock people up for long periods without charge or trial. He was going to eat his identity card if he was forced to have one, et cetera.
Why is it not a two-way street any more? How are we to send a signal to Russia, China and other countries about the right to protest, as we try to? The Foreign Office's website has all sorts of condemnations of behaviour that would be allowed—
This has been quite a long speech. We do need to get through business tonight. Can noble Lords please respect other Members and think about the length of their contributions?
This is the 11th day in Committee on the Bill; I think we have given it due course. I am sorry, but I do not accept the noble Baroness’s views. Perhaps we can all respect each other and move on. Noble Lords have very important points to make, but if we can make them succinctly, that will be very helpful.
I have talked about the past—suffragettes and anti-apartheid, et cetera—and I have talked about Russia and China and the places that we have to persuade, in the current, dangerous world, not to suppress protest. The domestic context is that we have come out of Brexit, which was incredibly divisive; whichever side you were on, we know that it divided communities. I was subject to protesters who were very cross with me, and a little scary, but in the end, I put up with it. We are coming through a pandemic, and people are scared and very worried by climate change. I do not believe that oppressive powers giving this level of discretion to the police to suppress free speech will bring our communities together.
My Lords, if I may, I will speak succinctly on the noise amendments. I appreciated what the noble Baroness, Lady Chakrabarti, said about the two-way street, favourite protests and standing up for all protests, but I wonder about the extent to which we are actually doing that. I listened carefully to the persuasive argument made by the noble Lord, Lord Coaker, in introducing the Opposition amendment on fast-track orders for schools. I also listened to the excellent opening speech from the noble Lord, Lord Dubs; if that is the kind of protest which is being restricted, I am sure that a majority in both Houses would vote against it. Opposition Members have spoken in favour of protections around schools, and I can very much see the case for protecting schools. But are we really saying that untrammelled noise cannot be intimidating and unacceptable, in the manner which the Bill attempts to frame as a problem?
Anti-vaxxers outside schools were given as an example. Are we saying that noise should not be a factor if anti-vaxxers are making a sustained attempt to disrupt Covid vaccine clinics? Another entirely feasible example is a far-right protest that was seeking to intimidate council workers using high levels of noise, because the council was volunteering to bring in refugees and a section of that community did not want that.
The question raised by the noble Viscount, Lord Colville of Culross, was pertinent: is existing legislation sufficient to deal with this? I hope that Ministers will address that point when summing up and in bringing the Bill to Report. I am much less comfortable with the rhetoric which simply cites noise as beyond the bounds of regulation in a legal framework. We all know that many protests are noisy—I would imagine that the majority of us in this Chamber have been on such protests—and that is a good thing. But it is surely not what this legislation is intended to debar.
My Lords, I support those who oppose the clauses in Part 3 standing part of the Bill, but I will support each and all of the specific amendments that aim to mitigate the most egregious harm to liberty that Part 3 represents. The comments by the noble Viscount, Lord Colville of Culross, and the noble Lords, Lord Dubs and Lord Beith, and the personal remarks from the noble Baroness, Lady Chakrabarti, sum up many of my concerns.
I do not agree at all with the sinister reading of the Government’s motives from the noble Baroness, Lady Jones, but I am genuinely utterly baffled as to what the Government intend this part of the Bill to achieve. We are consistently told, I think in good faith, that Part 3 does not threaten the right to protest, but whether that is disingenuous, naive or whatever, it is just not true: it does threaten the right to protest. This part of the Bill weighs the balance of power heavily towards the authorities and will make it harder for members of the public to demonstrate their views and have their concerns heard. It explicitly aims to restrict protest in an ever-wider range of circumstances and, more insidiously, by threats of criminalising, eye-watering fines and imprisonment for an ever-expanding number of types of protesters. That will have a chilling effect.
How would the Government advocate that citizens stand up to the state to make their voices loudly heard or hold the Government to account beyond the ballot box within the prescriptive clauses of Part 3? Surely, this Government have championed popular sovereignty in relation to Brexit, for example. Surely, they will not then be frightened of a lively culture of politically engaged citizens who, on occasion, might have noisy, boisterous protests and demonstrations to effect change.
Having said all this, I am aware that many members of the public—many millions, probably—have become frustrated by some of the recent protests we have seen in the UK. They want the police to deal firmly with these new kinds of protests, which seem less about democratic rights and more about using tactics against the public, almost with the aim of disrupting ordinary people’s lives until they relent and accept their net-zero aims without the bother of winning over the majority by argument. So, I get that the Government and the headlines pose Part 3 as tackling these new-style, seemingly anti-democratic, not anti-power but anti-public protesters.
However, it just is not true that the original Part 3, without the new amendments that are to be added, did not have any elements that would tackle those new types of protests. As I said at Second Reading, laws already exist that are just not being enforced by the police consistently. At the judicial review of the Extinction Rebellion protests across London, the Commissioner of the Metropolitan Police conceded that she was satisfied that the power in the Public Order Act 1986 was sufficient to allow the police legally to deal with protests that, even in design, attempt to stretch policing to its limits. I suspect that those Insulate Britain protesters in prison now might think that the law is pretty sufficient. Indeed, when Sajid Javid was Home Secretary he admitted that
“where a crime is committed” during a protest,
“the police have the powers to act”, and that significant legislation
“already exists to restrict protest activities that cause harm to others.”—[
As Garden Court Chambers notes:
“The suggested ‘gaps in the law’ simply do not exist … These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all”.
As it happens, it seems that the Home Secretary possibly agrees with me—I do not imagine she was influenced by me—that the original Part 3 does not make a blind bit of difference to policing Extinction Rebellion-style protests. That is presumably why Priti Patel announced at the 2021 Conservative Party conference a whole swathe of new amendments specifically to deal with new protest tactics. I might not agree with those new amendments, but at least I understand the logic of creating new offences to deal with things such as the act of “locking on”, which is a new form of protest, or to tackle all those people gluing themselves to highways and so on. But the rest of Part 3 makes little sense if it is the case that the Government are addressing public concern over the new-style protests.
There is loads that I want to say on the detail, but I will not do that. I want to make a couple of points on noise, although a lot has been said. I cannot believe that we in this House have been reduced to looking at what is too noisy. The police have been given such expansive and draconian powers to impose conditions on protests based on interpreting how much noise may have a significant impact, and so on, that I have spent quite a long time researching decibels and statutory noise nuisance laws and much more. Noble Lords will be relieved to know that I am not going to give them any fascinating detail on any of that in this speech. But as I was researching it, I thought, “Oh my goodness, all these police officers who are charged with making judgments on what’s too noisy won’t have my research at their fingertips—rather, they’ll have a nebulous, vague and subjective idea that they’ve got to make a judgment about what noise might be causing unease”.
As the Joint Committee on Human Rights noted earlier in the year:
“What one person considers to be noise sufficiently ‘intense’ to be likely to cause ‘serious unease, alarm or distress’ may be very different to what another person would believe meets this threshold”.
If I asked noble Lords what is too noisy, we would not agree. I do not know about in other people’s homes, but in my home I insist on turning the TV up and everybody else says that it is too loud. I basically shout that the music is screeching and drowning out our conversation, and I am told that I am being an old fogey. Noise that causes alarm, distress and unease—any of these different things—we all know is a subjective matter. At the Academy of Ideas office around the corner, there are lots of drilling noises going on: loads of lorries and loads of construction noise. I spend the whole time moaning about how noisy it is. It causes me a lot of distress and alarm—but actually, as one of my colleagues pointed out, it is noise that signifies economic activity, and you cannot build back better quietly.
So it is a complete waste of police time to ask them even to consider the ludicrous basis for assessing whether a demonstration should take place or not, based on noise. In the very good examples given by the noble Lord, Lord Walney, of when noise is horrible, he was talking about unpleasant political views—and, to be honest, whether you shout or whisper them, they are unpleasant: the issue is not the noise but the views.
My Lords, I speak particularly to Amendments 294, 299, 303 and 305 in the name of the noble Lord, Lord Rosser, and other noble Lords. I have added my name, but I want to speak in support of the wider amendments in this group. In doing so, I declare my interests as co-chair of the All-Party Parliamentary Group on Zimbabwe.
As we have heard, the amendments tabled by the noble Lord, Lord Rosser, take up recommendations from the Joint Committee on Human Rights to remove the trigger for imposing conditions on protests based on noise. In her brief remarks about Part 3 of the Bill at Second Reading, the Minister stated:
“The right to peaceful protest is a fundamental part of our democracy”.
She went on to say that Part 3 was
“not about stifling freedom of speech and assembly”.—[
The noble Baroness, Lady Stowell, said earlier in this debate that nobody wants to undermine the right to protest, and complained about hyperbole. I might make a complaint on the other side about complacency. If it was really the intention of the Minister, the Government and Government Back-Benchers not to impact on protest, they really should have brought another Bill forward, and they should talk to the drafters, because the right to peaceful protest is clearly under attack in this part of the Bill, as the noble Baroness, Lady Fox, said.
Noise is fundamental to peaceful protest, as is impact —not least because protest is about making one’s voice heard when it would otherwise be ignored. As the noble Lord, Lord Dubs, said, what on earth would be the point of a protest if you were not heard and if you did not have an impact? So any measure that makes the level of noise and its impact on others an arbiter of whether or under what conditions a protest may go ahead is, quite apart from being an absurd road to go down, self-evidently an attack on the right to peaceful protest that the Minister has told us is such a fundamental part of our democracy.
Do we really think that a senior police officer should be put in a position where they have to take on the responsibility of determining whether a protest should go ahead at the place proposed or on the route planned on the basis of the noise that protest may generate and the impact that it may have on people?
The noble Baroness, Lady Stowell, said that there was a new fashion in protests, but I do not think there is a new fashion for protests to be noisy. All the protests I have ever been on in my life have I think been noisy.
I did make the point that I was not wholly comfortable with what was being said about noise in the legislation, and I was looking to my noble friend the Minister for some comfort—but I do think there is a new fashion of protest, which the noble Baroness, Lady Fox, also referred to, which is very different from that which we have seen before and is causing a huge amount of disruption, which people find unacceptable.
I thank the noble Baroness for her clarification, but I have to say to her that noise is absolutely fundamental to the issues that we are debating now. As the noble Viscount, Lord Colville, said, in relation to the other protests and the obstruction of highways et cetera, the powers exist already in the Public Order Act and in other places to deal with them. So the question now is whether we should have the new, very restrictive curtailments on the right to protest proposed in this Bill which are about noise and its impact, and that is what I am addressing.
Not only is it a terrible idea which will place the police in an impossible situation, but the Bill compounds their difficulty by failing to provide any definitive criteria by which the police can determine whether the level of noise or its impact on others is sufficient to trigger their powers. The noble Baroness, Lady Fox, raised this issue. No decibel level is defined in the Bill; no definition of intensity of impact, which the police are supposed to take into account, is set. As a result, the police will be dragged into areas of heated political controversy on which they will have to make entirely subjective decisions—except in the cases where the Home Secretary will help them out by making her own entirely subjective decisions—deciding that one protest may go ahead in a certain way and a certain place but having to decide that another may not. Presumably the police’s decisions will be open to challenge by protesters on the one hand and those who wish to curtail protest on the other. It is hard to think of a better way to undermine trust in the impartiality of our police services.
As I mentioned at Second Reading, and as the noble Baroness, Lady Chakrabarti, has also mentioned, many noble Lords will have taken part in the protests outside South Africa House against the apartheid regime. It was the express intention of those protests to generate noise and, doubtless, the agents of the apartheid state were impacted, and they may well have genuinely felt serious unease as a consequence, but, as long as those protests remained peaceful, it was surely no business of the state to protect them from the impact of that noise or any serious sense of unease that it may have caused.
That is an example from the past—it would be interesting to know how the Minister thinks the powers would be applied in that case—but let me take one from the present. Currently, a fortnightly vigil for democracy and human rights is held outside the Zimbabwe embassy on the Strand. The vigil is not normally loud, but, on occasion, when the Zimbabwe Government are involved in particularly egregious violations of human or political rights, it can be noisy and, without doubt, it has an impact on people in the vicinity. People are understandably angry in such circumstances, particularly in circumstances where protesters have been gunned down in Zimbabwe, and the noise that the protesters here generate will certainly have an impact on and may cause serious unease to embassy staff. But again I ask: if the protest is peaceful and orderly, is there any reason to prevent it happening?
As evidence to the Joint Committee on Human Rights highlighted, police will inevitably be faced with pressures from certain embassies to ban protests outside their premises on the grounds of noise or serious unease. Can the Minister expressly address this issue in her summing up? Do such embassy protests fall under the powers of this Bill? Could a senior officer, for example, direct protestors not to protest outside the Zimbabwe embassy if he was convinced of serious unease being caused to embassy staff? How would the police assess evidence of the threat of serious unease in court? I hope the Minister will not tell the House that she cannot envisage the police using such powers in these circumstances, because that would only highlight how this part of the Bill will entangle the police in decisions they simply should not have to make.
If those are some of the potential, but hopefully unintended, consequences of this part of the Bill, what of the intended consequences? We know that the public protest clauses and proposals contained in Part 3 and in the government amendments, which will be debated in a later group, are deliberately aimed at environmental protestors, whether Extinction Rebellion or Insulate Britain, because the Government have basically told us that they are. Many of the people involved in these protests are young people who are protesting against an existential threat to their futures. The noble Lord, Lord Campbell-Savours, made a very powerful speech in this regard. What is the reaction of the Government to these tiresome people who have the temerity to demand a future for themselves and their children and who understandably will not be bought off by the long-term promises so casually given out by the Prime Minister and so nakedly betrayed by his failure to take the action now to realise them? To deal with them, the Government propose using these wholly disproportionate powers.
What do these people want? They want us to insulate Britain. It is hardly world revolution. Yet in the face of an unprecedented climate emergency, we cannot even do that. No wonder they are angry. No wonder they despair of politics as usual. Instead of consuming a lot of time and energy banning their protests, because they are noisy or might have some impact, perhaps it would be better to have an infrastructure Bill with a long-term programme to tackle the problem of our energy-leaking and climate-threatening buildings. At least that is a problem we know how to deal with and could if we had the will. Certainly, it would be a better use of time, because if the Government think that these measures to curtail protests on the spurious grounds of noise and impact and to jail more people for a longer time will stop these protests, they are sadly mistaken.
Those who face an existential threat do not just buckle under, no matter the level of restriction or curtailment of their rights. If you doubt that, look at a history book. Look at the civil rights movement which the noble Baroness, Lady Chakrabarti, mentioned, or the suffragettes, as the noble Lord, Lord Campbell-Savours, highlighted. These people were protesting in the face of laws far more extreme than even this Government would contemplate. Bringing in unjust laws to deal with this situation does not stop protest. You deal with it by addressing the issues fairly. These measures will only further embitter the protests. Far from what the noble Baroness, Lady Stowell, hopes for, it will not bring about any greater sense of unity, and it will not only further embitter the protest but embroil the police in unending controversies which, as far as I understand, they have no desire to be dragged into. Also, they have been provided with no objective criteria on which they can adjudicate such controversies.
The amendments in this group will remove some of the most objectionable aspects of this attack on peaceful protests. I hope that the Minister gives serious consideration to the powerful arguments that have been made by noble Lords on all sides, but really this part should come out of the Bill completely.
I conclude by saying that I am very pleased to say that we are a long way from the situation in Zimbabwe, where a youth leader languishes in jail in appalling conditions for more than 200 days, charged with blowing a whistle at a protest, where the police have become so embroiled in political controversy that they are no longer trusted by the public at all, and where public safety and public order are consistently deployed as reasons to stifle the most modest of protests. But those who courageously struggle in such situations look to our democracy, with our traditions of free and raucous protest, as a beacon. We should remember that. Every time we take a step away from them, we dishearten democrats around the world and give succour to those who oppose them.
My Lords, I broadly support what the Government are trying to do here. There will be times when you might disagree with some of the language, but it seems to me that the only reason why the Government are bringing forward these proposals is that they have been asked to. I do not think they set off with an agenda to limit protest, but presumably people have complained about it. The public have complained; the media have complained, representing the public; and sometimes the police have complained—and everybody has complained about the police, which is not an unusual place to be. That is the nature of the job.
What the police want is some simple law that they can implement on behalf of the public to protect the weak against those who sometimes intimidate them. That seems to me to be what this part of the Bill is trying to address.
British policing, and criminal law generally, has always been about doing what is reasonable and making criminal what is unreasonable. It is about trying to strike that balance all the time. In most protests, people carry out their protest in a peaceful way that attracts attention. Sometimes it gets change and sometimes it fails. Sometimes it moves along the spectrum from irritation to nuisance, to serious disruption to life, to crime, to serious crime. Protests in the last group are relatively small in number, but when they happen they are pretty awful.
On the whole, the police do not want to be there. They are not seeking to be at a public protest, but in London you are probably talking about at least one protest march a day, every working day. Just to show the scale of the challenge that the Metropolitan Police faces—it happens in other parts of the country, but of course the Government, who attract most of the protests, are in London—on average, 400 or 500 officers are still drawn into central London every day for something called aid. It may see them coming out of Croydon or Lewisham to police central London, because there is no separate box; they have to come in to help police these types of protest. Of course, when they are doing that they are not in Croydon, Lewisham and all the other places, so it is something of significance that we all have to consider when we talk about the number of protests and the type that we allow.
The most difficult types of protest—I think this is pertinent to whether a senior police officer should have some powers in these cases—are those where the protesters generally do not engage or explain their plans. When both those things happen, on the whole, plans can be made. The police may not always agree with a certain approach, but some kind of agreement will be reached. That enables everybody to plan. The disruption that will flow is probably restrained to a reasonable amount. That goes back to the reasonableness test.
When those things do not happen—the people do not engage, do not have organisers who are prepared to engage, or do not even acknowledge that there are organisers, or they are prepared to take what others may regard as unreasonable action—it gets pretty hard for the police to deal with it and, more importantly, for the public to deal with the consequences.
The types of unreasonable things that I think everyone is always worried about include interference with free movement. That can mean just blocking a road. I do not think anybody minds it for five minutes, but an hour, four hours? We all have our own limits, but when it goes on for a long time, serious disruption can happen. Another type is any disruption of public space generally; we all want to go where we want to go, when we want to go there. Some of the people in this Chamber will be the most aggravated in dealing with cops who prevent them travelling through a protest, saying that they have a right to go where they want to go. They have a right to move around too, and of course we all have the right to enjoy our homes and places where we have a business. There are times when we all have a right to make the nuisance caused clear to the police and expect them to take some action.
Some of the tactics have changed recently. That is the nature of protests; they will always change. You are never going to have the protests of 50 years ago, as people will move on to try to achieve a new aim. We have seen the M25 blocked and Heathrow invaded. There was one case where protestors broke through a perimeter fence, went in and disrupted the international airport; eventually, they were found not guilty. Fine, if that is what happened in that case, but I do not think it a very safe thing to do, in the case of either the motorway or the international airport. Is it for the protester to decide what is safe and reasonable or is it for some objective standard? I cannot see how it is okay for you to be driving along the M25 at 70 miles per hour, at least, for people to decide it is now okay to block the road. I agree that obstruction of the highway is an existing offence, but this is something of far more gravity, which needs a new approach. The police struggle to interfere when people are preparing for acts of protest, where there is going to be a disruption. This is another thing that the legislation is trying to address.
I will mention some of the specific items that people have rightly been concerned about in this Bill. The first is noise. As the noble Lord, Lord Walney, said on noise, just because I shout, does that mean I am going to be locked up? That has never been the case and I doubt that it ever will be in the future but, whether it is 150 decibels, or 10 decibels in your ear for two hours or four hours, noise can be more than an irritant. We have a right to enjoy peace in whichever way we prefer. Noise can be injurious of itself.
I went to Notting Hill carnival every year on the bank holiday Monday. For anybody who has not been, and the ex-commander and the noble Lord, Lord Paddick, must have been, there are these huge amplifiers. I do not know how many decibels they produce, but they are the size of a two-storey house. They can produce some significant effects. In fact, the police horses had to shift back, because they were knocked back by the percussion from the loudspeakers. Noise can be an irritant and do damage. We have to consider its effect on people, where it is either so loud or so persistent that it cannot be ignored. If people turn around to the police and say, “What are you going to do about it?” and they say, “Actually, it’s not illegal. It is okay and you shouldn’t be irritated by it,” that will not work. I will come back to why that is something that we have to think about.
I agree that it is hard to imagine a single-person protest of such significance that the police should intervene. However, we have seen it outside this place. Somebody with the right amplification can cause a lot of effect, particularly if it is outside your front door or business. People will ask for help and the police need to know where they stand on that. If Parliament does not want to help them to decide that issue, it is left to the officer on the street to decide. That goes back to the simple advice, at three o’clock in the morning or more likely nine o’clock at night, to make their own decisions. They are pretty good at acute problem-solving, but they deserve the support of Parliament to be clear about what is and is not okay.
There has been a slight tone from some contributions —perhaps this is just my old sensitivities—of “How can we possibly expect the police to make this type of decision?” I have to say that they make it every day and usually quite reasonably. Senior police officers have been making it on public order for years. Occasionally, it goes wrong but, on the whole, the British police get these things right. There are many things you can criticise the British police for, as we hear every day in here, but I do not think that dealing badly with protests is one of them. You can trust the cops to get this right and be reasonable, because they do not seek to fall out with the majority—or with anybody, come to that. I honestly think that you could trust them to make this type of decision, provided that the legislation is clear. There has been some challenge to the language, which I support, in some cases, as you can always make language more precise.
My final point is that it is important to get this right, for no other reason than that there is a debate between protesters’ right to protest and the police’s right to intervene. If we do not get it right, we leave the public to intervene on their own account. We have already seen examples of that. Before the cops arrived, the people at the front of the queue who were getting blocked said, “I’m going to move you. You’ve got two choices.” When the police arrived, it was a difficult situation to resolve. The law needs to be clear. There is a duty on the law, set by Parliament, to make clear lines in the sand, so that you do not leave members of the public to decide for themselves. That will end in the worst of all worlds.
To go back to my first point, the Government have only reacted to the concerns expressed by the public initially, sometimes through the vehicle of the media but also through the political process. I do not think that what has been proposed is entirely unreasonable. It can always be improved in this process and on Report, but it would be foolish to suggest that it is completely unreasonable to change the law to adapt to the tactics of the protesters.
My Lords, my speech can be very quick because I should just like to associate myself with the remarks of the noble Lord, Lord Hogan-Howe. It was an exceptionally informative and balanced speech about just how difficult these issues are and how difficult the job of the police is to draw that balance and get it right. We should all be extremely grateful that we are policed in such a consensual and high-quality way.
I spoke about this at Second Reading and we have had an exceptionally interesting debate here in Committee. I shall make just a couple of points. First, we ought to avoid, if at all possible, differentiating between good protests, on an issue that I agree with, and bad protests, on an issue that I disagree with. We should resist the temptation to talk about specific causes. The noble Baroness, Lady Chakrabarti, made that point in one of her two speeches; I think that it was the second one.
Forgive me, but I did not make two speeches. I asked the Committee’s permission to read the remarks of my noble friend Lord Hendy because he could not be here to speak to his Amendment 304. I thought that I had the consent of the Committee. If I misunderstood that, I apologise, but I did not intend to make two speeches on my own part.
My Lords, the noble Baroness spoke for nearly 20 minutes and I am attempting to speak for about two minutes.
We ought to avoid drawing the distinction to which I referred. However, there is a clear difference between a lawful expression of protest drawing attention to a particular issue, wanting it to be heard, and a deliberate and aggressive attempt to disrupt the lives of the general public. That is what we have seen over recent weeks. It is entirely reasonable that we look carefully at the current legislative settlement and examine what can be done with the existing powers. I hear the remarks made that the police have the powers that they need. Some feel that they do and others do not. That matter should be carefully looked at.
However, where there are gaps and where the police require additional powers to take those finely balanced judgments, it is entirely legitimate that we look at that in the Bill while maintaining a clear balance and making sure that we do not trespass too much on some of the issues that have been raised around, for example, noise. In essence, there are grounds for a constructive debate and finding that balance. It is never going to get everyone’s support but we all ought to look beyond the Westminster bubble and consider the reaction of the general public when they see their lives and critical national infrastructure such as transport being substantially disrupted and when the police are unable to deal with it effectively.
My Lords, I am not sure that I would have been elected Convenor of the Cross Benches if my colleagues had known that I, too, was once a protester.
I wanted to join the general acclaim for people who had been protesting. I was 17 years old and I was idealistic. I believed in what I was doing.
My point is this: no one has spoken at all to Amendments 295 and 306, which were intended, according to the script, to remove new triggers. I hope that that was on the basis that Amendment 298 in the name of the noble Lord, Lord Beith, and Amendment 308 in my name covered that point. If anyone wants me to cover the point now, I shall do so, but would it not be better for me to sit down?
My Lords, we are now on to arguably the most controversial aspect of the Bill—the public order measures. The debate began at 8.30 pm and is made even more controversial by the Government tabling more than 18 pages of new amendments last week, creating new offences and draconian new powers for the police that the other place was not even aware of when it passed the Bill. Not only that, but debate has been concertinaed into one day, on both the existing and the new measures, and, with the collusion of the Official Opposition, the vital two-week gap between Committee and Report is being shortened, further curtailing proper scrutiny. This Government are behaving unacceptably and Labour are letting them get away with it. Of course, I make no criticism of my hard-working and conscientious comrades on the Labour Front Bench, nor indeed of the government Ministers on the Bill, who will no doubt say they are just following orders; the criticism is of the usual channels.
I am speaking on every group today, bar one, so I have been unable to eat or have a proper break; it is a bit like being back on the Job—with a capital J, for the benefit of Hansard. No wonder observers think I look knackered, to use the words of the noble Lord, Lord Dubs.
As other noble Lords have said, this legislation should be a separate Bill because of the many fundamental issues around people’s human rights. I said last week that my comments on serious violence reduction orders were the longest I had made in eight years in the House. I am going to exceed that, and I will explain why—it will become clear.
It was gone midnight on another day of Committee when the Minister said four times that he would keep his remarks short because of the lateness of the hour. My response was that the Bill needs to be properly scrutinised and I do not care what time of night it is. I promise not to speak for more than two minutes on each amendment in this group, so, if noble Lords will give me 54 minutes, that should be enough.
For the information of the Committee, I was involved in public order policing throughout my policing career. I was deployed at Notting Hill Carnival in various roles for seven consecutive years—I can still hear—and at the Grunwick trade dispute, and the Lewisham, Southall and Brixton riots, as a senior officer, as the officer in overall command, and as gold commander at numerous events, having been selected and trained and regularly retrained to maintain my position in the small cadre of advanced trained senior officers in public order policing. This involved practical exercises, in riot gear, with commanding officers, and involved missiles and petrol bombs, as well as weekend table-top exercises with people from the media and community groups, looking at the practical consequences of banning or imposing conditions on protests.
I was, however, fortunate to spend time away from operational policing, being sponsored to undertake a full-time degree course during the miners’ strike, in which I took no part, other than to give money to support miners’ families. I think it is important that the House understands where I am coming from. I am also grateful to Liberty for its briefing.
I start with Amendment 293, in the name of the noble Lord, Lords Dubs, which I have signed. Not only is the right to protest a human right enshrined in the Human Rights Act but it is a right that British people have had for centuries. The police have recent history that is relevant here. Up to and including the early 2000s, the police had been taking an increasingly hard line with protestors, frequently using techniques such as kettling—which the noble Baroness, Lady Jones of Moulsecoomb, mentioned—where protestors, and many innocent bystanders, were contained in a small area and not allowed to leave except in groups of two of three, sometimes requiring those leaving to be photographed and to give their names and addresses.
As a result of violent incidents in 2009 at the G20 London summit protests, the Independent Police Complaints Commission concluded that the Metropolitan Police should review its crowd-control methods, including kettling. As a result, the Metropolitan Police, for a while at least, changed emphasis, stating that the police role was to facilitate peaceful protest, and, interestingly, putting women senior officers in charge of some of the most controversial protests. This amendment is an important reminder of the recent history of policing protest in this country, and the dangers of the emphasis being placed on controlling protest rather than facilitating protest.
It is also important to comment on the origins of this legislation in connection with this amendment. The Home Secretary asked Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to look specifically at whether new legislation, further offences and stronger police powers were necessary. Her Majesty’s Inspector of Constabulary, Matt Parr, a retired Royal Navy rear admiral, conducted the review.
I read the report with interest because, as the Guardian reported on
“The official policing inspectorate showed repeated bias in favour of the police and against peaceful protesters as it compiled a report which backed a government clampdown, a whistleblower has alleged.”
The allegations were that HMICFRS wrote to the Home Secretary five months before the report was published, saying that it backed the need to change the laws. The Home Secretary replied—again, I quote the Guardian:
“Protests have proved a significant challenge over the last year and I am keen to ensure that the police have the powers and capabilities they need to help address the disruption they face. Your findings will help me to do that.”
The whistleblower, who had worked for HMIC for more than five years, said:
“The purpose of the report was not to collect evidence and then make a decision, but rather to collect evidence to support the decision that had already been made”.
I have read that report. I have also read the report into the Sarah Everard Clapham Common vigil by the same author. I agree with the whistleblower that the contents of both reports do not match the conclusions.
Almost all police forces outside London said that the limiting factor on policing protest was the number of police officers available to enforce existing laws, not a lack of legislation. Indeed, as we will see—yes, I am only just getting started—despite what the Government say, these proposals are based on a false premise. The Police Federation, which represents 130,00 front-line police officers, was not even consulted about these proposals. In my discussions with the federation, it is, to say the least—and to use a word that has been popular this evening—uneasy about them.
Amendments 294, 295, 299, 300, 303, 305 and 306 refer to new powers to control protests on the basis of them being too noisy, marking a significant expansion of police powers. As other noble Lords have said, protests are by their nature noisy, and threatening to curtail or close down protests because they are noisy is threatening to close down protest full stop. HMICFRS did not comment on the noise proposals in its report. Again, noble Lords are being asked to sign off on open-ended legislation because these half-baked proposals have to relegate important aspects of the proposed legislation to regulations that this House will not see until after the Bill receives Royal Assent.
Amendments 297 and 307 from my noble friend Lord Beith probe what “unease” means. The Joint Committee on Human Rights goes further, saying that it places too much into the hands of the police officer at the scene and that
“What one person considers to be noise sufficiently ‘intense’ to be likely to cause ‘serious unease, alarm or distress’ may be very different to what another person would believe meets this threshold.”
Amendment 302 in the name of the noble Lord, Lord Dubs, rightly seeks to limit the conditions that can be imposed on an assembly for the reasons why they were restricted when the original legislation was debated. On
“We stopped short of a power to ban because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]
We think that Lord Hurd of Westwell was right.
We support all the amendments in this group but, to continue, Amendments 309 to 312 refer to disobeying conditions imposed on protests by the police. Not for the first time in the Bill, the hideous phrases “ought to know” and “ought to have known” appear. I understand that in the past some protesters have put their fingers in their ears or made a lot of noise so that they could not hear what conditions the police were imposing on them, but Amendments 309, 310 and 312 contain the much-preferred wording
“deliberately or recklessly avoided gaining knowledge that the condition has been imposed”.
Amendment 311 removes the increased penalties for disobeying conditions; we agree that non-violent civil disobedience should not face harsher penalties.
I stand alone with Amendment 318, requiring the most senior police officer present at a one-person protest who wants to close it down to hold at least the rank of inspector. It is a rank of officer who is on duty and available in every police area 24/7. It is a serious claim to make, that the decision on the level of noise or disruption caused by a solitary individual peacefully protesting should not be made by a police officer, no matter how junior. In fact, we do not believe that one-person protests should be subject to any conditions and we oppose Clause 61 standing part of the Bill.
I will talk now about the impact of these proposals on the police, in terms of both resources and public trust and confidence in them. In so doing, I will address my Amendments 296 and 301. The first thing to say, from my professional experience, is that the more conditions the police impose on a protest, the more police officers are needed and the more likely those conditions are to be resisted. Taking the point of the noble Lord, Lord Hogan-Howe, it is not right that lots of police resources should be taken from the suburbs of London, for example, to police protests in central London, but the more conditions you impose, the more police officers you will have to take from the suburbs to police that demonstration.
I think the noble Lord will agree that the number of officers put into an event is usually down to intelligence about the nature of the event, which leads to the conditions, which then leads to the numbers. I am not sure it is down to the conditions; in my view, the conditions are always subject to the character of the protest.
I understand what the noble Lord is saying, and I shall develop my argument further.
I have referred to away-weekend table-top exercises that I attended as part of keeping my “certificate to practise”, if you will, my continuing professional development as an advanced trained public order senior officer. We were told the maximum number of police officers, horses and so forth that were available to us and we were often presented with scenarios where the level of disorder anticipated led one to contemplate banning the protest entirely or imposing severe conditions. We were divided into syndicates which separately presented their proposals for dealing with the scenario. Invariably, syndicates that advocated an outright ban or severe conditions found that they ran out of resources to implement the plan. I do not know whether the noble Lord, Lord Hogan-Howe, has benefited from this sort of advanced public order training, but that is my experience. He has his experience, and I have mine.
I am not quite sure of the noble Lord’s point. I go back to my original point: the nature of the intelligence tells you what the event is going to be, which drives the conditions and the number of officers. Nothing he has said has changed my view.
My Lords, a peaceful protest with no anticipated violent infiltrators and an agreed route, however large, can be policed with a minimum number of police officers, a lot of traffic cones and miles of white tape. Imposing conditions that the organisers are resisting is likely to require double to five times as many police officers, as confrontation must be anticipated and the conditions imposed by force if required, such as a march wanting to take a different route.
An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as for a compliant, peaceful demonstration. To arrest one violently resisting protester, for example, takes four or five police officers: one for each limb and one to prevent the protester biting the others. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions that can be imposed and the more draconian those conditions, the bigger the drain on already overstretched police resources.
The second thing to mention is the impact on trust and confidence in the police. The impact of the policing of the Sarah Everard vigil was hugely negative, and these proposals simply increase the potential for such scenes to be repeated and with increasing frequency. Only last week the Minister said that trust and confidence in the police had been hugely damaged by recent events, and in my professional judgment these proposals will add to that negative impact.
If these proposals are to be agreed, it is essential that the police are not the ones who take the decision to implement them. If the proposals take effect, the police will increasingly be accused, rightly or wrongly, of taking political decisions to impose conditions on or ban some protests but not others, not because of their likely impact but because of the causes they are protesting about. For example, in allowing a protest about an increase in cross-Channel immigration but not allowing a protest against compulsory Covid vaccination, it would not matter that the police anticipated one being entirely peaceful and the other violent; it would lay the police open to being accused of being politically partisan.
I am sure other noble Lords found better ways to spend last weekend, but sometimes research turns up some unexpected treasure. In the same debate on the Public Order Act on
“Does he not accept that the Government should provide that those wishing to hold a procession or assembly should be able to apply to the local county court or to a Crown court judge for a review of the decision made by the police?”—[Official Report, Commons, 13/1/1986; col. 797.]
I have suggested that the police apply to the courts if they wish to impose conditions or ban a protest. The noble Lord suggested then that the organisers should be able to challenge such a decision. My proposal has the advantage of providing the police with judicial cover for what might otherwise be considered, rightly or wrongly, to be a political decision.
In this regard, and in other aspects of the Bill, the experience of Northern Ireland is valuable but often overlooked. For example, I am told by an officer from the Police Service of Northern Ireland that Section 60 stop and search without suspicion has never been used in Northern Ireland because of the damaging impact that it would have on police-community relations. Policing protests in Northern Ireland has unique problems associated with a sectarianism that is not normally found on the mainland, but it also has a potential solution. I was talking to a friend and colleague from Northern Ireland who said that everyone there hates the Parades Commission. That is exactly the point of it: if there were no Parades Commission then everyone would hate the police, who would otherwise have to make the difficult decisions on whether to impose conditions or ban processions.
That is why my other amendment in this group requires the Secretary of State to consider establishing an independent parades commission for the mainland, to avoid the police suffering an even more damaging erosion of public trust and confidence as a result of having to implement these proposed changes to public order legislation. There we are—not too bad, was it?
I apologise to the Committee for the length of my comments, but I hope noble Lords will understand that I have a lot to say on these issues. Going back to where I started: as a police officer with over 30 years’ experience and having been involved in the policing of protests in almost every rank, up to and including being a gold commander in charge of policing such events, I believe none of the Government’s proposals is necessary, desirable or likely to be effective, save perhaps the changes to deliberately avoiding becoming aware of conditions imposed by the police on a march or assembly, and then only as amended.
The amendments in this group to which my name is one of those attached would, based on recommendations by the Joint Committee on Human Rights, remove the proposed new trigger for imposing conditions on public processions based on noise and provide that a person who breaches a condition after deliberately or recklessly avoiding knowledge of the relevant condition can face criminal liability, but without extending the criminal offence to cover persons who breach conditions accidentally. In other words, that amendment would remove the offence of breaching a condition that you “ought to have known” was there. My name is also attached to the notifications opposing Clauses 55, 56, 57 and 61, which concern imposing conditions on public processions and public assemblies, “Offences under sections 12 and 14 of the Public Order Act 1986”, and “Imposing conditions on one-person protests”, respectively.
The Prime Minister said that he would sit in front of the bulldozers to protest against and seek to prevent the construction of a third runway at Heathrow. Can the Government, in their response, say whether he could have been arrested and prosecuted under existing legislation for doing that? If not, could such an arrest and prosecution for that activity be made under the legislation the Government are now pursuing in the Bill? It would be somewhat ironic if the Government were now seeking to introduce legislation to enable action to be taken against the kind of protest that the Prime Minister was only too happy to commit himself to undertaking—presumably, as a democratic right in a democracy.
Likewise, we saw protests against the increase in fuel prices recently, with drivers of goods vehicle trailers going at 5 mph along a motorway, resulting in significant delays to traffic. Can the Government say whether that action could have led to arrests being made and prosecutions taking place under existing legislation? If not, could such arrests be made and prosecutions pursued under the legislation that the Government now propose?
It is important to be clear about the extent to which existing laws do, or do not, enable action to be taken against the kind of protest to which I have referred, along with recent protests by Insulate Britain, and thus whether the issue is the way and extent to which existing legislation is applied and enforced, rather than a need for legislation of the kind now proposed. Insulate Britain protesters have ended up with custodial sentences under existing legislation.
As my noble friend Lord Blunkett wrote in April of this year:
“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”
Protest needs to be peaceful and tolerated, and accepted as a democratic right, against which we have to balance the rights of others to go about their daily business. We do not believe that the Government’s proposals in the Bill deliver those goals and reject the attempts to amend the Public Order Act 1986 with this loosely drafted legislation, which would restrict democratic rights to peaceful protest.
“serious disruption to the life of the community” or to the activities of an organisation carried out in the “vicinity” of a public procession, as well as powers for the police to impose conditions when they believe that noise might have
“a significant impact on persons in the vicinity” or may result in
“serious disruption to the activities of an organisation”.
With that reference to noise, it would appear that it is now also protestors and not only children whom some people think should be seen and not heard.
Clause 56 allows the police to place any necessary condition on a public assembly as they can now with a public procession. Clause 57 removes the need for an organiser or participant to have “knowingly” breached a condition and increases the maximum sentences for the offence. Further clauses impose conditions on one-person protests and make significant changes to the police powers contained in the Public Order Act to respond to protest by expanding the types of protests on which the police could impose conditions.
The Bill also widens the types of conditions that the police can place on static protests, since it would significantly lower the legal tests that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress” to bystanders.
Before using their amended powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact and its “likely intensity”. The clause would also widen the types of conditions that the police can issue on static protests to match their powers relating to protest marches. They would also be able to issue any condition on static protests that they think necessary to prevent
“disorder, damage, disruption, impact or intimidation”.
These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. They would remove the legal test that requires protestors “knowingly” to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they “ought” to have known was in force. Finally, these powers will allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people to engage police powers.
The Bill includes many ambiguous clauses and will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation. There is no real drive from them for the government measures that we are discussing in this group of amendments. They do not need more legislation because they already have the powers in place, under the Public Order Act 1986, to impose conditions and to prohibit protests. Good policing is done with discretion. The Bill tries to require the police to do certain things that they may not want to do or may not feel are appropriate.
It is our belief that the powers in the Bill threaten the fundamental balance between the police and the people. The most severe clauses are not actually what the police asked for. We believe that these new broad and vaguely worded proposals would impede the ability of the police, rather than help them in their job. These clauses put way too much power into the hands of the Home Secretary, and the powers threaten our fundamental right to peaceful protest. The proposals risk making protests ineffective and curtail fundamental rights of citizens in a democracy that allow people to express their concerns about the Government of the day or other issues that they feel passionately about.
The provisions of the Bill put more power in the hands of the Home Secretary, who, in the future, may use these powers in an authoritarian way, further impacting on people’s rights. On the power of the Home Secretary to make regulations on the meaning of
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, Commons, 15/3/21; col. 78.]
Throughout our history, protests and marches have led to significant changes for the better in this country. If the provisions of the Bill had been in place, would they have been stopped for causing annoyance or being too noisy? There is no doubt that those who disagreed with the objectives of the protestors might well have claimed that they were being caused annoyance and found them too noisy.
Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, to which the noble Lord, Lord Paddick, referred, reported on public order measures in its inspection report Getting the Balance Right? On public order legislation, the inspectorate called for a
“modest reset of the scales”.
I do not believe the measures in this Bill constitute a “modest reset”. The support for new powers on public order was qualified support for the five government proposals that the inspectorate was asked to respond to. The report said that the vast majority of police forces were happy with the existing legislation and it was mainly the Met Police that wanted new powers to deal with very specific events, mainly large-scale peaceful Extinction Rebellion protests.
In the evidence session before the Commons Committee on the Bill, the author of this report said:
“We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”
He went on to say that what the Government propose
“clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding
Despite that, however, these clauses widen the legislation significantly, which will simply make the job of the police in enforcing it more complex. For example, they will have to determine what is annoying. No doubt many people are annoyed to a greater or lesser degree when a protest blocks or takes over a street, but lowering the threshold in the way proposed in the Bill will create a situation in which there could be very little protest that would be lawfully allowed.
The police are already sometimes challenged on why they did not do more to stop a protest which was causing disruption. Under the provisions of these clauses, the political pressure on the police to act is only likely to intensify. Why do the Government want to make the police the gatekeepers for public protest when they should be putting them in a position in which the rules are neither too confusing nor too broad, since that will only lead to disparity in how the Bill is implemented, and more flashpoints. Why do we need to go down this road when the police already have the power to break up protests that cause harm, serious public disorder, serious damage to property or serious disruption to the life of a community?
Sir Peter Fahy, former chief constable of Greater Manchester Police, has said that the legislation includes “some really dodgy definitions” that the police are supposed to make sense of. The police will find themselves in impossible situations, having to make judgments about, for example, what constitutes “significant”, “relevant” and “impact”. There are likely to be different interpretations in different forces, and possibly within the same force, since the officer on duty who has to make the call may well have a different view from another officer on duty on another day. What one person considers to be noise might not be the same for another person.
Tolerating dissent and accepting peaceful protest as a right is a British value of which we should be proud, since it is central to our democracy. The Bill, as it has come to this House from the Commons, puts that at serious risk, since it creates uncertainty by giving too much discretion to the police, which they do not want, and too much power to a Home Secretary and thus a Government—which presumably they do want. As the shadow Home Secretary said in the Commons at Third Reading:
“It is a Bill that destroys the fine British tradition of protecting the right to protest … Our laws of protest have always been a balance, and the way this proposed law disturbs it is wrong.”—[Official Report, Commons, 5/7/21; col. 697.]
My Lords, it has been rather a lengthy debate, but rightly so. I accept that the provisions in Part 3 of the Bill raise important questions about the balance of rights in our vibrant democracy, as my noble friends Lady Stowell and Lord Goschen and the noble Lords, Lord Hogan-Howe and Lord Walney, so eloquently outlined. This Government stand by the right to freedom of expression and assembly; no democracy can survive without them. However, these are necessarily qualified rights and must be balanced against the rights and freedoms of others. That point was well put by the President of the Queen’s Bench Division just last week when sentencing the protesters who had breached the M25 injunction. She said:
“In a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and, up to a point, tolerated. But the words ‘up to a point’ are important. Ordinary members of the public have rights too”.
The provisions in Part 3 of the Bill are about where to draw that line—to paraphrase the noble Lord, Lord Dubs, and indeed the point made by the noble Lord, Lord Campbell-Savours. We believe that, in the light of the experience in recent years with protest groups such as Extinction Rebellion, Insulate Britain and others, the law governing the policing of protests—which is over 35 years old—needs to be updated.
Again, just last week, we heard from the Metropolitan Police the cost of policing the Extinction Rebellion protests in August and September: as well as £4.5 million in overtime costs, the protests required as many as 2,000 police officers to be assigned to police Extinction Rebellion events on any given day. Some 4,000 rest days were cancelled overall. This means 2,000 officers being taken away from protecting local communities—as the noble Lord, Lord Hogan-Howe, pointed out. Of course, there were also costs and significant inconvenience to members of the public and local businesses—and this was on top of the £37 million cost of policing the 2019 protests by Extinction Rebellion. Some costs and disruption are an inevitable part of peaceful protests but, as the noble Lord, Lord Coaker, recognised with his Amendment 292Q, there is a line to be drawn.
Nobody could fail to empathise with people trying to get to work or to get their children to school or their loved ones to hospital who were obstructed, not just—as the noble Lord, Lord Hogan-Howe, said—for a small amount of time but sometimes for hours on end. There were utterly heartbreaking stories of people who were not able to visit people who were dying in hospital. Those protesters are not winning public support in this; the public are pretty disgusted. The working public want to go to work. As the noble Lord, Lord Hogan-Howe, said, police resources are diverted from other parts of Greater London when the protests take place in London. I note that not one Member of the Committee who opposes what the Government are doing mentioned these protests or their effect on the working public.
That brings me to Amendment 293 in the name of the noble Lord, Lord Dubs. I reiterate here that this Government fully support the right to peaceful protest. This amendment aims to enshrine that right in legislation. As the Committee will be aware, the Human Rights Act 1998 writes the European Convention on Human Rights into UK law, including those rights in Articles 10 and 11. Under Section 6 of the Human Rights Act, it is already unlawful for public authorities to act in a way that is incompatible with the convention rights. That being the case, while I share the noble Lord’s belief in the importance of the freedoms of expression and assembly, I do not think that this new clause is necessary.
Amendments 294, 295, 299, 300, 303, 305 and 306 would remove the ability of the police to place conditions on processions and assemblies where the noise they generate risks causing serious disruption to the activities of an organisation or significant impact to those in the vicinity of a protest. The threshold at which the police will be able to impose these conditions is very high, and the vast majority of protests will be able to continue making noise as they currently do. These powers can be used only on unjustifiably noisy protests.
I would also like to take this opportunity to clarify that the police will be able to place conditions only on the basis of the level of noise which is generated from a protest. This means that the police will not be able to place conditions on a protest if the content of what is being said or chanted causes anyone unease, alarm or distress. Protests by their nature highlight often very controversial and difficult issues in society, and we have no intention of preventing this. In making use of this power, the police will have to consider the intensity and duration of the noise generated, the number of people and organisations affected, and the rights of the protestors involved, to respond to the question from the noble Lord, Lord Oates, on the embassy protest. As the noble Lord, Lord Hogan-Howe, said, the police make these judgment calls every day.
I remind the Committee that the police are restrained in their use of conditions on protests, and this will not change. In his evidence to the JCHR, the NPCC public order lead, Chief Constable Harrington, said that there were over 2,500 protests between
Moving now to Amendments 297 and 307 in the name of the noble Lord, Lord Beith, I am grateful to him for pointing out that these are probing amendments to understand the meaning of the term “unease”. Should the noise from a protest risk causing persons in the vicinity “serious unease”, the police may place conditions on the protest to prevent that harm. As I have indicated, when setting conditions, the police will be required to consider the likely number of people impacted by the noise, the likely duration and the intensity of the impact on those people. The police will also be required to act compatibly with the rights to freedom of expression and assembly of those generating the noise.
The word will take its natural meaning and it will ultimately be for the courts to interpret. Removing “unease” would raise the threshold at which conditions can be placed on the basis of noise. The police will be able to do so only where there is a risk of intimidation, harassment, serious alarm or serious distress. That would leave a gap where protesters could continue to cause harm to those in their vicinity through the level of noise they generate.
Amendments 296 and 301 in the name of the noble Lord, Lord Paddick, would require the police to obtain a High Court order before they can impose conditions on public processions and assemblies. This would be a significant departure from the framework in the 1986 Act. As the noble Lord will know, the nature of protests can change rapidly. It is vital that the police are able to respond swiftly to developments, and I fear that requiring them to seek permission from the High Court to place conditions does not recognise the fast-moving dynamics of policing a protest.
Public order commanders receive extensive training and guidance on the safe management of protests. Through the College of Policing’s authorised professional practice, their training and their continuous professional development, the police are continuously improving their ability to strike the correct balance between the rights of protesters and the rights of others.
Amendment 302 in the name of the noble Lord, Lord Dubs, would remove the ability for the police to place any necessary condition on an assembly, as they can currently do for processions. I have already explained the fluid nature of protest, and I re-emphasise the need for the ability to place conditions on assemblies and processions to be aligned. While giving evidence to the JCHR, Chief Constable Harrington detailed that it is not always evident when a procession becomes an assembly, or indeed vice versa, which makes the imposition of conditions for complex protest scenarios extremely challenging. He also stated that the limitations on what conditions can be placed on assemblies are not suitable for some of the assemblies they have had to police in the past. Ensuring that the range of conditions which can be placed on assemblies matches those currently available for processions would resolve both these issues.
I come now to Amendment 304 in the name of the noble Lord, Lord Hendy, whose speech was read out by the noble Baroness, Lady Chakrabarti. I wholeheartedly agree that we must support workers’ right to peacefully protest and take collective action as part of a trade dispute. The ECHR provides that the rights of freedom of assembly and expression can be legitimately limited to prevent disorder and to protect the rights of others. When using these powers, the police must not act incompatibly with picketers’ rights under the ECHR, as is currently the case when considering the use of Sections 12 and 14 of the Public Order Act.
Amendments 309, 310 and 312 concern the fault element for not complying with police conditions on an assembly or procession. The Bill modifies the threshold from one where the prosecution has to show that a protestor knew of the conditions to one where the prosecution must prove that the protestor knew or “ought to have known” of the conditions in place. These amendments would change this to where the perpetrator either “recklessly” or “deliberately” avoids gaining knowledge of conditions they go on to breach.
From that, I recognise concerns that we must ensure that these measures do not sweep up those who are inadvertently or accidentally unaware of conditions in place. As I have said, if the police cannot evidence the fact that they made appropriate efforts to inform protesters, then those who accidentally break conditions will not be at fault.
These amendments would place a disproportionately high burden on the prosecution, which would be required to prove beyond reasonable doubt that the defendant actively took steps to avoid being made aware of the conditions in place. Collecting such evidence would be extremely challenging in the context of a large protest. Therefore, I think that this approach would not resolve the loophole exploited by some.
Amendments 311 and 313 would remove the increase in sentences for those who breach, or incite others to breach, conditions on assemblies and processions. As the Government have already made clear in their response to the JCHR, we think that the current maximum penalties for breaching conditions are disproportionately low compared with the harm suffered in the most extreme examples of protests. It will be for the independent judiciary to pass sentences appropriate to the facts of each case, subject to the statutory maximum.
Amendment 318 would require that only a police officer of the rank of inspector or above would be able to impose conditions on one-person protests. It is right that we follow the same approach for processions and assemblies, where the most senior officer of any rank at the scene of a protest can impose conditions which are necessary. The police need to be able to react to harmful protests swiftly and I have already detailed the extensive training and guidance that public order trained officers rely on. Therefore, it is right that the most senior officer available be the one with responsibility for placing conditions on a single-person protest.
Finally, Amendment 320A seeks to explore whether the model of a parades commission as it applies in Northern Ireland could be adopted in England and Wales. I do not think that the amendment is necessary. The Parades Commission that currently exists in Northern Ireland was set up to independently place conditions on parades in order to minimise sectarian tensions. The context in England and Wales is completely different from that in Northern Ireland and the powers available to the police under Section 12 of the Public Order Act, as amended by this Bill, are sufficient for the management of marches. As I have said, the police are restrained in their use of conditions and use them in only a small minority of the protests they manage. Therefore, I see no need to pass the power to set conditions over to a third party.
In conclusion, these provisions in the Bill provide for no more than a modest updating of the Public Order Act. The police must have the tools they need to ensure that the rights of protesters are appropriately balanced with the rights of others. I hope that, in the light of my explanations, I have been able to satisfy noble Lords and I commend these clauses to the Committee.
My Lords, I am grateful to the Minister for the detail with which she went through the amendments, which was helpful. It is far too late in the evening to have a point-by-point discussion about them; we will leave that for Report. I shall make just two or three brief comments.
First, I am not satisfied from what the Minister said that the existing police powers are not adequate for most of the situations described. It seems to me that the police are able to take action, and there may be only a limited number of additional respects in which they need more powers. I should like to examine that in more detail.
Secondly, there was widespread concern about the noise issue. I am grateful to the noble Lord, Lord Hogan-Howe, for what he said. Although I was on the human rights committee—and still am—I cannot remember whether the question of electronic amplification ever came up. I am very sympathetic to the criticism of noise that is amplified in that way. I may have missed a point or misremembered, but I certainly think that that is not acceptable. However, it would be of concern if noise without amplification was going to be subject to the more stringent measures proposed.
I repeat my gratitude to all Members of the Committee who have contributed to a very interesting if somewhat lengthy debate. I beg leave to withdraw the amendment.
Amendment 293 withdrawn.