Crime and Policing Bill

Report (4th Day)

Amendment 369

369: Before Clause 133, insert the following new Clause— “The right to protestBefore section 11 of the Public Order Act 1986 (advance notice of public processions), insert—“10A 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 statement This 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, in opening this group, I will speak principally to Amendment 369, which is in my name and the names of my noble friend Baroness Doocey, and the noble Baronesses, Lady Fox of Buckley and Lady Jones of Moulsecoomb. I will also speak to Amendments 369A, 372A, 372B, 372C and 373.

Amendment 369 brings to Report our amendment calling for a strong statement in domestic law of the right to protest. Nothing has been said in Committee or so far on Report that has even started to persuade these Benches that this Bill does not need within it a strong statement of a statutory right to protest, which would both supplement and complement rights of the citizen under the ECHR. Our Amendment 369 is co-signed by the noble Baroness, Lady Doocey, and others, as I have said, and I accept entirely that the right to protest is, in part at least, enshrined in Articles 10 and 11 of the European Convention on Human Rights: Article 10 is on “Freedom of expression” and Article 11 is on “Freedom of assembly and association”. As I mentioned in Committee, the convention rights are circumscribed because they

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals”,

or for the protection of the rights and freedom of others.

A significant feature of the rights under the convention is that the degree to which the European Court of Human Rights may interpret or enforce those rights is subject to what is known as the “margin of appreciation”, accorded to individual signatory countries to decide how they, as nation states, interpret and enforce those rights. It is only where countries stray beyond that margin of appreciation that the European Court of Human Rights will hold a signatory nation in breach.

Noisy protests—of which we have heard many—repeated protests and protests on unpopular causes are, and have been for centuries in this country, part of the stuff of life in our democracy. We have seen what the High Court thought of the arrest of so many peaceable protesters last year. What happens next remains to be seen. It is not a question of what we may think of their cause; it is a question of not stifling their rights. These rights are fundamental to our way of life and should be protected with determination and clarity.

I turn to the other amendments in this group tabled by those on these Benches. Amendment 369A in the name of my noble friend Lord Strasburger on face coverings at protests is a minimalist position of support for the right of the protester to attend a protest without revealing their identity. It would allow the protester to appear in disguise, and provides a defence of reasonable excuse for wearing a face covering. It is just a fact that people may have many legitimate reasons for disguising themselves. They may not want employers, teachers, parents, partners, political opponents or, in the case of people in public life, simply members of the public to recognise them or be aware of their attendance at a protest—and why not? We can see no justification for a limitation of that right, unless it is for camera surveillance, to which we will turn later today, which we regard as pretty unjustified anyway without really serious regulation, of which there is currently not a whit.

Amendments 372A, 372B and 372C in my name and that of my noble friend Lord Strasburger are intended to ensure that Clause 139, which restricts protests in the vicinity of places of worship, will succeed in protecting worshippers and members of religious communities carrying out religious activities in places of worship, while avoiding the problem that, frankly, affects the clause as unamended. That problem is that the unamended clause would enable the restriction of protests in the vicinity of places of worship—protests that are unconnected with either worshippers at that place of worship or with the act of worship or other religious activities in that place.

It is true that there is a condition in the Bill that persons of reasonable firmness should be deterred from worshipping there or carrying out religious activities before the right to restrict would kick in. That could be the case in any demonstration that was local and might keep people of reasonable firmness away. The reality is that what the Government were trying to do when they drafted that clause was to protect worshippers from sectarian demonstrations by opponents of those worshippers, and from hate speech. It is about, as was rightly acknowledged, protecting Jewish people near synagogues and Muslims in mosques. It is about protecting against religious discrimination, but I regret that we may hear from the Minister the suggestion that we should agree to this clause without the specificity that is provided by our amendments on the basis that the police do not have to make a distinction—that was the basis that was raised in Committee. It is up to them, it is said, but the Bill is about making appropriate provision in law for the police to have powers to restrict protests in particular circumstances and in those circumstances only.

It is no answer to an objection that the Bill is too wide that the police do not have to use excessive powers that are granted to them. We have always been astute in this country to restrict police powers and not to give the police discretion that they do not need to use. To do otherwise would be to substitute the discretion of the police for the definition in law of police powers. I completely agree with those who say, as the noble Lord, Lord Hogan-Howe, has pointed out on many occasions, that the police are granted a difficult job, but it is not for government to say to the police, “You can have these powers, and you have to decide when to use them”. It is for Parliament to establish powers that are restricted to what is needed. To legislate on any other basis would be inimical to the rule of law, of which the proper definition of police powers is a necessary feature.

Amendment 373 in my name and the names of my noble friends Lady Doocey and Lord Strasburger would remove Clause 140 from the Bill. As noble Lords will remember, Clause 140 deals with the question of cumulative disruption allegedly caused by protests. Many protests cause disruption—disruption by noise, by large numbers of people, by the occasional difficulties to get through the traffic or through crowds, even by roads being blocked or Tube stations being difficult to access. There are difficulties with passage when protests are about. All these things are the normal incidence of protests. They are the price that we pay for our democratic right to protest.

What is the difference between one protest, which does not give rise to such a restriction as is suggested, and repeated protests? It is that repeated protests are often required to persuade government or authority that something must be done. Of their nature, repeated protests are more likely to be justified and more likely to be effective, whether that be farmers protesting against inheritance tax repeatedly in central London, marches against the Iraq war or any number of protests in Trafalgar Square. The noble Lord, Lord Gove, shakes his head, but when we look back at the history of protests in this country, we see that repeated protests have the utility that they are more likely to be effective. Protest movements take time to build up momentum. That momentum is an important part of their future success. The more justified the protest, the more likely it is to be effective and the more likely it is to be repeated and repeated in the same area.

Clause 140 is an oppressive clause. It would provide the police with the powers to restrict the very protests that are most likely to be justified and effective. There is no way of curing it and we should have none of it.

The noble Lord has already accepted that the right to protest has to be balanced against the rights of others. Surely the virtue of the cumulative disruption provision, Clause 140, is that it is totally unacceptable that the rights of others who wish to pray in their synagogue, who wish to get to their synagogue, who wish to get away from their synagogue, should be repeatedly disrupted in the same place every week. The cumulative nature of the disruption pushes the balance in favour of asking the protesters not to cease protesting but to do it somewhere else.

The answer to that is that the cumulative nature of the disruption is not what causes the oppression to worshippers at synagogues or mosques or anywhere else. We have accepted, for the purpose of Report, restrictions on the right to protest near places of worship on condition that it is relevant and that we are talking about the place of worship and worshippers being disrupted. The fact that a legitimate protest is repeated is not a reason for restricting the protests. If the rights and freedoms of others are restricted, that in itself is, under our Amendment 369, a reason for restricting protest, because there is a right to protest. It is not helped by the fact that repeated protests are seen as more difficult. I see the point made by the noble Lord, Lord Pannick, about repeated protests at synagogues and mosques, but they are covered by our condition on restriction at a place of worship. I beg to move.

My Lords, I rise to speak to Amendment 369A in my name, which we have just been discussing, and to Amendments 372A, 372B, 372C and 373, to all of which I have added my name. Regarding Amendment 369A, Clause 133 seeks to create a new offence of concealed identity at protests. If this clause were enacted as it stands, the police would be empowered to ban all face coverings at a protest with only some limited exceptions concerning the person’s health, religion or work. Many other categories of perfectly law-abiding citizens may have good reasons to conceal their identities at protests—for example, those protesting against a hostile foreign state who fear retribution for themselves or their families, those who might be criticising their own religious or cultural communities, or survivors of sexual violence or domestic abuse who need to stay below the radar for their own safety. None of those is covered by the limited exemptions in Clause 133.

To solve this problem, Amendment 369A would provide a defence of reasonable excuse for the offence of concealing identity at protests, thereby putting the burden on police officers to justify why they believed that wearing a face covering at a protest made the suspect arrestable. This amendment strikes a careful balance between allowing the police to prevent public disorder and protecting the many law-abiding citizens who have legitimate reasons for wanting to exercise their freedom of expression anonymously.

I have signed Amendments 372A, 372B and 372C in the name of my noble friend Lord Marks. Clause 139 seems to have been drafted to give reassurance to Jews, Muslims and other denominations that they can attend their place of worship without feeling intimidated by protests in the vicinity of their synagogue, mosque, church or whatever. That sounds to me like a laudable objective. What is not to like? The difficulty is a severe unintended consequence caused by the drafting. The sheer number of places of worship in a country as old, religiously diverse and densely populated as Britain that could inadvertently become no-protest zones is enormous. Here in Westminster, Parliament Square and Trafalgar Square are both in the vicinity of one or more churches, and yet they frequently host major demonstrations. They could become off limits. Few if any large spaces in central London or any other city would escape the risk posed by Clause 139 of being ruled too close to a place of worship for a demonstration to be allowed. The Government may well say that this is not the intention of Clause 139, but that is exactly what the clause as drafted permits a senior officer to do.