My Lords, I rise to speak to this group, in particular to Amendment 372 from the Government, and Amendment 380, to which I have added my name. Before I speak to those, on Amendment 371B from the noble Baroness, Lady Blower, and the noble Lord, Lord Hain, I have listened very carefully to the differences between “may intimidate” and “the intention to intimidate”. If I may, I think there may be a middle way through this and I hope we can use the time between Committee and Report to look at that and perhaps talk about how a reasonable person—or, for lawyers, the man on the Clapham omnibus—would see such acts. I accept that “may intimidate” may be slightly wide in terms of the purpose piece; I think it is very difficult to prove intention to intimidate, and we have seen that many times in Northern Ireland. So I make that suggestion in respect of that.
I also listened very carefully to what the noble Lord, Lord Hain—of course, a respected Secretary of State for Northern Ireland—had to say when he referred to the inalienable British right to protest. But of course he knows that, when he was Secretary of State for Northern Ireland, the Parades Commission for Northern Ireland was given powers by the Government to deal with parades and protests there. That was in the wake of difficulties surrounding parades and the rights of freedom of assembly, and those in nationalist areas did not want those parades to happen in their areas.
It is no secret that many unionists, including myself, were not supportive of the Parades Commission receiving those powers: we saw it as an unaccountable body taking decisions on parades, many of which have taken place not just for decades but for hundreds of years. The situation since that legislation went through is that everybody who organises a parade or protest in Northern Ireland has to put in an 11/1 form, which has become a very famous form in Northern Ireland, to the Police Service. We have to notify the police that a parade or a protest is taking place, and we have to tell them the route, the date, the time and the organiser of the parade or the protest, so that people can be held accountable.
I do not want, in the context of this group, to speak to the merits of the existence or, indeed, the decision-making of the Parades Commission, because I probably would agree with the noble Lord, Lord Hain, on that—the noble Lord today, not when he was Secretary of State for Northern Ireland. Rather, I want to look at what the commission can consider when making its decisions on whether to place conditions or limit a parade or a protest.
I think it is instructive that, in my part of the United Kingdom, the body taking decisions on contentious parades or protests can take into account the cumulative impact that such a parade or protest would have on the community. The legislation states:
“The Commission may issue a determination in respect of a proposed protest”
or parade. The conditions
“may include conditions as to the place at which the meeting may be held, its maximum duration, or the maximum number of persons who may constitute it … In considering in any particular case”
whether a determination should happen,
“the Commission shall have regard to the guidelines”
and indeed the code of conduct. In its guidelines, which I have here, it takes into consideration
“any disruption to the life of the community which the meeting may cause”
or
“any impact which the meeting may have on relationships within the community”.
Indeed, the guidelines for the Parades Commission take into account the
“frequency of such public processions or related protests along the route”.
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I say to the noble Lord, Lord Hanson, who, like the noble Lord, Lord Hain, has served in Northern Ireland and knows the Parades Commission and its powers, that surely there is some precedent there in terms of how contentious parades should be considered. I am not suggesting that the Government set up a Parades Commission in England and Wales, because I would probably object to it in the same way as I object to the one in Northern Ireland, but I am talking about the principles that it acts on, which I think should be looked at. I make my comments to be helpful to the Ministers in this regard, who are very aware of the Parades Commission.
Whatever my misgivings on the accountability of the Parades Commission, those principles could be applied by a senior police officer or, indeed, the Secretary of State. If we are looking at principles to think about between Committee and Report, we might think about this. I think the impact on communities is already operating in Northern Ireland. As I say, I make no mention of my support for the Parades Commission, but I think it is important to look at the legislation that set it up and the principles that are there, because I think the Government amendment and Amendment 380 continue the piece of work that has happened in Northern Ireland, which is instructive about how this can work. I hope that is helpful in terms of the amendments that have been put forward. I very much support the Government’s amendment and Amendment 380 in my name.
I shall speak to Amendments 372 and 380 and various other amendments in this group. I thank the noble Lord, Lord Hanson, for his kind remarks at the end of the previous group, but I fear that, after this speech, normal service might be resumed. There are many issues to cover in this group, and I will try to be as brief as possible.
Government Amendment 372 amends the Public Order Act 1986 to impose a duty on the police to consider so-called “cumulative disruption” caused by repeated protests in a given area. The amendment gives the police unprecedented powers to restrict or prohibit protests that are expected to be too disruptive. This amendment represents a grievous attack on the right to protest, which is vital to our democracy, and has many unintended consequences, as I shall outline. The overly broad framework would empower the police routinely to curb freedom of expression and assembly as exercised through peaceful protest. It would significantly expand the definition of serious disruption to include so-called cumulative disruption caused by repeated protests in an area. This would allow the police pre-emptively to prohibit peaceful demonstrations if, in their opinion, an area has been the site of too many protests, which is an extremely broad discretion.
Until this debate started, I had no idea that this provision is aimed at frequent protests outside synagogues. The amendment says nothing to that effect, and it has very broad application to all protests, so I shall carry on on that basis.
Presumably it would apply if the protests in question were organised by different groups who advocate for different causes. This could create a first-come, first-served version of free speech, where areas are given what could be described as a protest allowance at the whim of the local constabulary. The police would be within their rights to prohibit peaceful assemblies once that allowance had been used up. This opens up the concerning opportunity for groups of citizens to censor their political opponents by using up an area’s protest allowance before their opponents have had a chance to protest themselves.
My Lords, I support what I understand to be probing amendments in the name of the noble Baroness, Lady Blower, but first I want to seek clarification from my noble friend the Minister on government Amendment 372. I do so from the perspective of someone who had direct responsibility for organising mass demonstrations when I was at the TUC, which now could be caught in this net.
First, can the Minister clarify the definition of disruption and whether that applies to conduct or location, and the safeguards that will be applied under “cumulative impact” to ensure that any restrictions and conditions imposed by the police are proportionate? As cumulative impact, as we have heard, will be applied collectively to demonstration organisers, this could lead to a rationing of protests in a particular area, presumably even when they are entirely peaceful. In practical terms, can the Minister explain how such a ration would be distributed between, as we have heard, potentially very different organisations with very different aims? Who will decide and on what basis or are organisations supposed to figure it out for themselves?
In central London, there are really only one or two routes, which have viable assembly points at the start and finish, available for very large demonstrations. How realistic is it for the Home Office to suggest, as it did in a press release, that the police could instruct organisers of national demonstrations to divert their demonstrations to alternative routes when in central London there may be none? Crucially, can the Minister tell us whether consideration of the cumulative impact of demonstrations will be weighed against the public’s right to protest in response to the cumulative impact of real-world events? For example, hundreds of thousands of people turned out for successive TUC marches through the 2010s—I recognise that not everybody here may have joined them, but plenty did—in response to the mounting harm that austerity and public service cuts were inflicting on workers, families and communities.
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I turn briefly to the amendment of the noble Baroness, Lady Blower. In my practical experience, it isvital that the law supports constructive negotiations between the police and demonstration organisers about the route of and arrangements for a march. I absolutely agree that they must be sensitive to and take proper account of community concerns, but, again, that would become much harder if vague terms such as “in the vicinity” are enshrined in law. As we know, there are literally thousands of places of worship in our capital city. A broad interpretation of that term would make it nigh impossible to hold a march through central London.
There is a fear, as we saw in the civil society statement supported by the TUC, that such imprecise language could become a licence to ban protest by the backdoor—if not under this Government then under a future one. Any incidents of violence, antisemitism, Islamophobia or any other form of racism are, of course, intolerable, but the law already provides the police and courts with powers to deal with harassment, threats and incitement. It would be quite wrong to use the imperative of tackling that behaviour by some as justification for curtailing everyone’s freedom of assembly.
The sensible amendments from the noble Baroness, Lady Blower, seek to provide much-needed clarity and certainty, for demonstration organisers and the police. Historically, the right to peaceful protest was hard-won. Each of us may support or vehemently oppose the aims of a particular demonstration, but we should all agree that the right to peaceful protest must be meaningful and it must be protected, as an essential hallmark of a free and democratic society.
My Lords, I have just one large amendment in this group but I thought I would wait until the end—or what might be close to the end, with a bit of luck—before speaking to it, because it is different from others in the group. I had considered degrouping it, and now wish that I had, to deal with it at lunchtime on Thursday.
Before dealing with that, what a privilege it was to sit here and listen to the very powerful speech by the noble Lord, Lord Mendelsohn, who is not currently in his place, the wise words of the noble Lord, Lord Pannick, and those of my noble friend Lord Polak. What struck me was something that my noble friend said: when we hear the chants of “Support the intifada” and “From the river to the sea”, those are not just catchy phrases for protest marches. What they mean is kill the Jews, destroy the State of Israel and wipe out 8 million people. You cannot get more evil a hate crime than that.
However, my amendment is different and it is a terribly important one, if I may say so, because it would impose a duty on the Metropolitan Police to ensure access to Parliament. There have been disturbing incidents in recent years where the Met has failed to do so, and MPs and Peers could not access our home of democracy or had to run the gauntlet of a mob.
I need to take noble Lords through the recent history of this problem to let the Committee see how we have got to the current state and what I think we can do about it. The minutes of our State Opening on 17 July of the 2024-2026 Session state, under the heading “Stoppages in the Streets”:
“It was ordered that the Commissioner of Police of the Metropolis do take care that the passages through the streets leading to this House be kept free and open and that no obstruction be permitted to hinder the passage of Lords to and from this House during the sitting of Parliament; or to hinder Lords in the pursuit of their parliamentary duties on the Parliamentary Estate; and that the Lady Usher of the Black Rod attending this House do communicate this Order to the Commissioner”.
My Lords, this huge group was always going be pivotal for us to discuss, and it is full of moral dilemmas. I am genuinely torn on many of the amendments; I do not know where I stand on some of them. I therefore appreciate the debates that we have had so far. It has been very worth while to hear the different sides of the argument.
When the noble Lord, Lord Mendelsohn, spoke earlier, he stirred me up. Every time I say “stirred up” I think of stirring up hatred; it was not that, but his contribution was very important. He emphasised that a lot is at stake, which it is. On the first day in Committee, I said that I knew that simply reiterating the formal importance of the right to protest is not sufficient for the period that we are living in, because we face new types of protest. We face some vicious and abusive gatherings that call themselves protests. That leaves somebody like me in a difficult dilemma. I am a free-speecher, but I have witnessed the visceral rise of Jew hatred in public and on our streets, so I am torn.
I have a lot of sympathy with the intentions of the noble Lords, Lord Walney, Lord Polak, Lord Leigh of Hurley and Lord Pannick, and of the noble Baroness, Lady Foster, to name just some noble Lords, and I understand where they are coming from. However, as the noble Lord, Lord Mendelsohn, himself admitted, there are a lot of existing powers that are not used. That strikes me as the problem.
We have a policing crisis and powers that are not being used, for cultural or deeper political reasons, so we try to compensate by making more laws. That will not solve the problem of the culture of normalisation of antisemitism—if anything, those new laws, which might also not be enforced, could be a distraction. Despite my reservations, my fear is that the deeper problem will lead to bad lawmaking and abandoning key principles that stand up for western civilisation, democracy and so on, because we are so desperate to do something.
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Laws driven by reaction to specific issues can go very wrong. I have noticed that the law they have come up with in Australia, in the wake of the Bondi Beach massacre and all that happened, is that Islamophobia is a hate crime for which you can get five years in prison. Sometimes lawmaking is not the right answer.
This is a huge and disparate group. I tentatively support some of the amendments in it and will ask questions about others. I tentatively support the amendments in the names of the noble Baroness, Lady Blower, and the noble Lord, Lord Hain, in their attempt at specificity, tightening up the wording of Clause 124 and the restriction on protests at places of worship. That seems sensible, because so much of the Bill suffers from language that is too broad. Leaving out “in the vicinity” and inserting
“within 50 metres from the outer perimeter”,
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Furthermore, as has already been said this evening, the amendment is silent on what constitutes an area. We do not know whether this power would permit the police to move a demonstration to a different part of a square, to another part of town or even to a difficult-to-reach rural area, resulting in decreased attendance and visibility. Perhaps the Minister could enlighten the Committee on that.
Similarly, Amendment 372 does not specify within what timeframe disruption would have to be repeated to be considered cumulative. This is another question for the Minister. The suggestion that so-called cumulative disruption should be taken into account in considering conditions for restrictions or prohibitions of protests is also disproportionate. Will the Minister please explain why one person’s right to protest should be extinguished simply because somebody else has already protested in the same location about the same cause, or about a different cause?
What about causes that evolve or develop over time, legitimately calling for further protests to coincide with the next stage of public debate? The courts have also repeatedly concluded that a relevant consideration regarding the proportionality of Article 10 and Article 11 rights is whether the views giving rise to the protest relate to “very important issues”. That would de facto be more likely to apply to causes that have led to repeated protests than it would to causes that have given rise to a single protest. This provision, if enacted, would give the police an additional power to ban or curtail protests on the most important causes: the ones most worthy of protest and the ones most protected by the courts. Will the Minister please explain if that is the intention?
Amendment 372 is poorly drafted. It is far too broad to prevent the problems that I have described, and it gives the police far too much power to curtail or prevent peaceful protest on the most important matters. Government Amendments 372 and 380 should both be withdrawn or, if necessary, voted down.
Government Amendment 381 would create a new offence about protesting outside the homes of public officeholders. This may be sensible but should it not have a reasonable conduct defence, as appears in other harassment-type offences, to cover, for example, situations where a neighbour speaks amicably to a politician about a local issue as they are leaving home? Would it be proportionate to criminalise that perfectly normal interaction? That is another question for the Minister.
On Clause 124, which caused so much heat rather than light earlier, it goes without saying that worshipers must be free to access their places of worship, be they synagogues, mosques, churches, or whatever, and worshippers must be able to do so without intimidation or threats or fear of the same. But those rights are already fully protected by the Public Order Act 1986. Under the Act, conditions may be imposed on protests by senior police officers if they believe that the procession may result in serious public disorder or where the purpose of the organisers is the intimidation of others. Section 12(2)(a) of the Act specifically includes places of worship, so Clause 124 may be completely unnecessary.
The amendments tabled by the noble Baroness, Lady Blower, and the noble Lord, Lord Hain, seek to clarify what is meant by “in the vicinity”. They are all well and good, but just about every place where people demonstrate is close to a church or another place of worship. For example, Parliament Square and Trafalgar Square would fail the test. Clause 124 could enable the police to ban or restrict just about any protest on that basis. That is probably not the intention, but it would be the result.
Amendment 378A in the name of the noble Lord, Lord Walney, would allow restrictions to be placed on protest or assembly if they take place in the vicinity of places used for “democratic decision-making”. Given the high standing of the noble Lord, Lord Walney, in this House, I find this idea rather strange. It would restrict protest close to Parliament, which is where the people who make the decisions, the people the protesters most want to influence, are to be found. The whole point of protest is to engage in a democratic process and seek to persuade decision-makers to a particular point of view. If anything, protest is more proportionate where it takes place in the vicinity of decision-makers. There is no sensible argument for Amendment 378A; it should be rejected.
Turning briefly to Amendment 370A, I understand that the idea of designating as an “extreme criminal protest group” is something that the noble Lord, Lord Walney, has been advocating for a long time. I oppose it because it is an oppressive and draconian restriction on the right to protest, in essence banning specific protest organisations. It is, of course, right that the law steps in to criminalise unlawful protest activity, but this is already done frequently on an individual basis. Criminalising association with others who share the same cause is wholly disproportionate; not everyone associated with a group shares any criminal intent. Designation or restriction of ECPGs will serve only to criminalise other law-abiding citizens because of their shared, but reasonably held, political views about a particular cause.
Taken as a whole, this group of amendments extends the regressive and anti-democratic tendencies of the previous Government—and now this one—to suppress or ban legitimate and peaceful protests in whatever way they can. Substantial pruning is required to get the Bill into a state where it no longer threatens our cherished democratic processes. Peaceful protest educates the public. It sparks debate. It creates the pressure needed for reform. In a healthy democracy, disagreement is not a threat but a sign that citizens care deeply about their society.
More recently, hundreds of thousands have joined demonstrations in solidarity with the Palestinian people. Again, the frequency of these very large protests is not happening in a vacuum, nor is it divorced from the strength of public feeling. While the International Court of Justice may not reach its verdict on genocide in Gaza for some years, much of the UK population, according to a YouGov poll published in June last year, has already made its mind up. Have the Government really considered the societal impact of making expression through peaceful protest much more difficult?
That is our sessional order, which the Metropolitan Police Commissioner enforces, primarily through Section 52 of the Metropolitan Police Act 1839. It allows the police to issue directions to prevent street obstruction near Parliament during sittings.
The Commons used to pass the same Motion until 2005, but in 2003 the House of Commons Procedure Committee concluded that passing the sessional order did
“not confer any extra legal powers on the police”,
and the only way to ensure the police had the adequate powers to achieve the result intended by the sessional order was through legislation. The committee recommended that, until such legislation came into force, the House should continue with the sessional order in a modified form
“to reflect the House’s concerns and to act as a marker that it expects Members’ access to Parliament to be maintained as far as the existing law allows”.
The Government implemented that and included provisions in the Serious and Organised Crime and Police Act 2005 intended to meet the requirement identified by the committee. The House of Commons then dropped the sessional order in 2005.
In 2013, the Joint Committee on Parliamentary Privilege recommended that the practice of passing sessional orders in the House of Commons be restored. In response, the Government said that they were
“not convinced that their revival would serve any legal or practical purpose”.
The Government are legally right. The sessional orders are not statute law and have no legal effect, but they had a massive symbolic effect, and the Met used to keep access free for all Members of both Houses.
Restrictions on protests around Parliament were introduced under Sections 132 to 138 of SOCPA 2005. In those sections, it says:
“The Commissioner must give authorisation for the demonstration to which the notice relates”,
and that in giving that authorisation, the commissioner should try to ensure, as far as possible, that people were free to enter Parliament. We moved from an instruction that no hindrance must be permitted, to one where the commissioner can decide on a case by case basis to grant protest.
Sections 132 to 138 were abolished by Section 141 of the Police Reform and Social Responsibility Act 2011 and replaced with restrictions that applied only to the controlled area of Parliament Square, which was delineated for the first time. That was, and is, very sensible. Under Section 143 of the 2011 Act, it is no longer an offence for demonstrations to be held without the authorisation of the Metropolitan Police Commissioner. However, a constable or authorised officer who has reasonable grounds for believing that a person is doing, or is about to do, a prohibited activity may direct the person to cease doing that activity or not to start doing it. Noble Lords should note the term prohibited activity.
Much of the emphasis of the sections in that Act is on tents and equipment in Parliament Square, the controlled use of Whitehall and loudspeakers. Why was that? Older Members of the Committee will recall that, for 10 years, a Mr Brian Haw had an anti-war tent on the grass opposite the MPs’ entrance at Carriage Gates, and the Government and MPs were very vexed that there seemed to be nothing they could do about it and no law to remove him. That is the thrust of the parliamentary provisions in the 2011 Act, to deal with that one man and his tent. I believe he died just as the Act come into force. By accident, the need to secure access to Parliament became downgraded once again. The emphasis was on prohibiting tents, accoutrements and loudspeakers outside the Commons.
Technically, the Metropolitan Police Commissioner and his officers have full legal powers to ensure that MPs, Peers, officers and staff have free and unfettered access at all times, but the reality is that the duty to do so has been subliminally watered down over the years. We have moved from a position that protests outside Parliament had to have permission to one where they did not need permission but the Met could stop them if they thought it necessary. There is no duty for free and unfettered access. That is why my amendment is necessary, without disturbing 99% of the current controls, powers and responsibilities.
Why is it necessary? In November 2021, Insulate Britain, with more than 60 activists, blocked two main roads leading to the Parliamentary Estate, including Bridge Street and Peers’ Entrance. In April 2019, Extinction Rebellion blocked access in Parliament Square, and the police had to take action to maintain a clear route for access for MPs and Peers reaching the estate. In October 2022, Just Stop Oil activists, as part of a month-long occupation of Westminster, sat in the road surrounding Parliament Square, specifically aiming to disrupt access to the seat of government.
The Police, Crime, Sentencing and Courts Act 2022 added an offence of blocking vehicular access to the Parliamentary Estate, but it said nothing about pedestrians. The current laws are therefore slightly inadequate.
The first thing in my proposed new clause that the Metropolitan Police commissioner would see are the words:
“Duty of the Metropolitan Police to ensure access to Parliament”.
It begins:
“It is the duty of the Commissioner of Police of the Metropolis to secure that members of either House of Parliament, all parliamentary officers and staff have free and unfettered access to the Palace of Westminster controlled area on any day on which either House is sitting”.
That puts access to Parliament front and centre of the legislation, sending a very strong signal that democracy trumps protest—you can still protest if you want to, but do not block access to Parliament.
I say to the noble Lord, Lord Hain, that, under ECHR laws, there is no right to protest. The Human Rights Act 1998 does not refer to a right to protest. The relevant rights are the right to freedom of expression in Article 10 and the right to freedom of peaceful assembly in Article 11. Moreover, Articles 10 and 11 are qualified rights, in that they can be restricted where it is necessary and proportionate to protect public safety, prevent crime and protect the rights and freedoms of others. I submit that the rights and freedoms of others include Members and staff of both Houses. We should also be protected to do our job, because we are the “others”. We have allowed a myth to grow that there is a right to block access to Parliament as part of a non-existent right to protest.
I have a few other small amendments. The 2011 Act designates the controlled area around Parliament but does not stretch as far as 1 Millbank, which did not open until after the 2011 Act passed. I have included it, as well as the road from Downing Street to Parliament, since, although the current law states that Parliament Street is part of the controlled area, Downing Street may be on that no man’s land between Whitehall and Parliament.
The 2022 Act added an offence of blocking vehicular access. I have added that pedestrian access for Members and staff must be maintained, and a requirement that any protesters must be kept back at least 10 metres from pavements used by Members to access Parliament. That would not stop protests; it would just let Peers and Members get in.
Apart from these small changes, I have retained the whole structure of the existing legislation, but with a new duty requirement on the Met. Putting at the beginning of the legislation a sentence that it is the duty of the Metropolitan Police to secure access to Parliament is more than just tokenistic or symbolic. We have allowed our freedoms to access and egress Parliament without hindrance to be eroded over the past 20 years. We have permitted a belief that people protesting outside our gates have more rights and are more important than the legislators working inside.
It cannot be acceptable that the very people entrusted with the responsibility to ensure our legal rights and freedoms under the law cannot get into the building to do it. My proposed new clause would restore that balance. It would make it clear to the commissioner where his primary duty lies, and it should make it safer for all of us, as parliamentarians and staff, to carry out all our duties. I commend my proposed new clause to the Committee.