Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 7th January 2026 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

369: Before Clause 118, 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.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I have Amendments 369 and 371. Amendment 369 is co-signed by my noble friend Lady Doocey and the noble Baronesses, Lady Fox of Buckley and Lady Jones of Moulsecoomb, and is itself subject to two amendments by the noble Lord, Lord Blencathra—Amendments 369ZA and 369ZB. Our other Amendment 371 is co-signed by my noble friends Lady Doocey and Lord Strasburger, and by the noble Baroness, Lady Fox of Buckley. I am grateful to them all for their support.

Amendment 369 seeks to enshrine in statute the right to protest as it has long been enjoyed in this country. The right to protest is, of course, enshrined in the ECHR. Article 10 concerns the right to freedom of expression and Article 11 concerns the right to freedom of assembly and association. The right to protest is, and always has been, circumscribed in English law, just as Articles 10 and 11 rights are circumscribed in the convention.

It is worth reminding ourselves reasonably briefly of the limits placed on the two freedoms by the convention. The right to freedom of expression under Article 10 expressly includes the

“freedom to hold opinions and to receive and impart information and ideas without interference by public authority”,

but it is limited, as it may be

“subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”,

and, most relevantly,

“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 freedoms of others. The Article 11 right to freedom of association and assembly accords to everyone

“the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.

It limits the restrictions that may be placed on those rights to those that are

“prescribed by law and are necessary in a democratic society in the interests of national security or public safety”,

and the list goes on in the same way as Article 10.

I repeat the words of the two convention articles not because they are in any sense new but because they demonstrate the balancing exercise that the state must carry out when considering how far it may or may not be legitimate to restrict the exercise of the convention freedoms in this country, not as a matter simply of compliance with the convention but as a matter of sound public policy.

The right to protest has never been explicitly enshrined in English or UK legislation, although the restrictions on it have been. Considerable changes were made by the Conservative Government in the Police, Crime, Sentencing and Courts Act 2022, with new statutory offences of public nuisance, more police powers to impose conditions on demonstrations that were deemed likely to be noisy or disruptive, and harsher penalties for obstructing highways.

The Bill now proposes further restrictions. For example, Clauses 118 to 121, to be considered in the next group, would create a new offence of concealing identity at protests in localities designated by the police. In the light of the development of live facial recognition technology, that looks and sounds ominous. Clause 121 will ban the use of pyrotechnic articles at protests, which I take to include any type of firework, unless exempted by the regulations. Collectively, the new restrictions on liberty and the further police powers, particularly taken with the new powers and conditions legislated for in the 2022 Act, mean that the right to protest is being progressively restricted. That highlights, we say, the need for a very public statement in domestic law of the right to protest and of the criteria to be applied when limiting it.

Our amendments seek to provide that in a way that is proportionate and balanced, but firm. We start Amendment 369 with the statement:

“Everyone has the right to engage in peaceful protest, both alone and with others”.


Our amendment then imposes on public authorities three-pronged duties to respect, protect and facilitate the right to protest. We appreciate that there are or can be significant resource implications for police and public authorities in policing protests. It can be an expensive exercise. We also appreciate that there is a difficult balance for the police to draw between overpolicing protests and underpolicing them, and that it is very often difficult to predict what is the right level of policing to maintain the balance between protecting the right to protest and risking disturbance if things go wrong. But the right to protest is a very valuable right, and it is extremely important to freedom and democracy that public authorities appreciate that they have the legal duty to respect, protect and facilitate it that our amendment describes. That legal duty must be backed by resources for the police and local authorities to ensure that this duty can be effectively performed.

The Government have appointed the noble Lord, Lord Macdonald of River Glaven, to carry out a review of public order and hate crime legislation. Its terms of reference were published last month, and the final report is expected next month, February 2026. In spite of the tight timescale, the noble Lord will, no doubt, carry out a thorough review of the law in this area, guided by the three principles that are set out in his terms of reference. The review will consider, first,

“whether the legislation is fit for purpose”,

secondly,

“whether it adequately protects communities from intimidation and hate”,

and thirdly,

“whether it strikes a fair balance between freedom of expression and the right to protest with the need to prevent disorder and keep communities safe”.

We maintain that proposed new subsections (2) and (3) in our amendment set out succinctly and clearly that balance. In order to be permissible, interference with or restriction of the right to protest must be necessary and proportionate and for the purpose of protecting national security or public safety, preventing disorder or crime, or protecting public health or the rights and freedoms of others. Those, we say, are the public interests that justify restriction of the right to protest.

In many ways, it is a pity that the Macdonald review was not commissioned before the Bill was introduced, given that deferring this legislation until after the report might have given the Government and Parliament a better opportunity to look afresh at some of the provisions in the 2022 Act and consider the proposals in the Bill. But we are where we are, and it is for Parliament to set out the policy objectives. So I suggest that it is more important than ever that we set out in statute the balance that is to be struck, even if this Bill will not be passed in its final form before the Macdonald review is published.

Our Amendment 371 seeks a review of the existing legal framework of protest and its interaction with Article 9, which covers freedom of thought, conscience and religion, as well as Articles 10 and 11, which I have considered above. If our Amendment 371 is accepted, that review will no doubt build on the work of the Macdonald review in the light of the passage of the Bill.

I turn to the two amendments proposed by the noble Lord, Lord Blencathra, with the balance between the right to protest and justifiable restrictions thereon as the touchstone. Amendment 369ZA would put public authorities under a duty to

“ensure that all other members of the public … are not hindered in any way from going about their daily business”,

and 369ZB would say that public authorities could interfere with the right to protest by restriction to

“prevent inconvenience to any member of the public”

or to

“permit any persons from going about their daily business”—

I suspect that the noble Lord must mean to “permit any persons to go about their daily business”.

The implication of both amendments is that it could be legitimately seen as necessary and proportionate to interfere with or restrict the right to protest for such a reason. Yet there is no requirement in either amendment that a significant number of people have to be inconvenienced or troubled in their daily business for a restriction to be justified. Far from it: Amendment 369ZA talks about any member of the public and Amendment 369ZB talks about permitting “any persons”. Those amendments are far too draconian.

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[Lord Hanson of Flint (Lab)]

I agree with the noble Lord, Lord Walney, on that point. The right to free speech is extremely important, and there is no stopping the right to free speech about the issue of Palestine in any way, shape or form. If a determination is made under the Terrorism Act 2000 that an organisation has crossed that threshold, the Government have a duty to act on that, which is what we have done in this case. With due respect to the noble Lord, Lord Strasburger, I just did not want to allow the comments he made to colour the position on a protest around Palestine. He can protest around that, but he cannot support an organisation that still has some outstanding court cases and has undertaken some severe action to date.

[Lord Marks of Henley-on-Thames (LD)]

May I press the Minister on that? I quite understand his analysis of the law: that the Palestine Action group became a proscribed organisation when Parliament said it should and, as a result of that, it follows from the terms of the Terrorism Act that there were and are continuing to be prosecutions of people who express support by perhaps sitting wearing a placard, or by wearing an item of clothing that expresses such support.

The proscription is of course the subject of challenge in the courts here and may well be the subject of challenge in the European Court of Human Rights, so I will say nothing further about that. But subject to that, have the Government not had any concern about the fact that because of the way the Terrorism Act works, the proscription of any organisation means that any expression of support, as the noble Lord said —however peaceable or however others might regard it as simply peaceable protest—renders it illegal and renders the person expressing such support liable to being prosecuted? Do the Government not feel that this is a reason for having a review of the validity and sense of the law in this area, where the Terrorism Act carries, as it stands, that unfortunate consequence?

[Lord Hanson of Flint (Lab)]

We have strayed, with due respect to all noble Lords, slightly wider than the amendment. I just wanted to make the point about Palestine Action because the noble Lord, Lord Strasburger, mentioned it.

The noble Lord, Lord Macdonald of River Glaven, is looking at all aspects of prosecution and all aspects relating to legislation. We keep all matters under review at all times.

The 2000 Act sets down certain criteria. That threshold was passed and crossed in this case. I defended that in this House, and the House supported it on a cross-party basis. That is political life. The noble Lord can move an amendment at any time to strike that legislation down, if he wishes to.

I hope that the noble Lords will not press the amendments before us today. The right to peaceful protest is vital. The Government support it. The Government are making changes still to allow that right but also to try to get a fair balance so that communities and others can also enjoy life when a protest occurs. We have the wider review from the noble Lord, Lord Macdonald of River Glaven, which will report in due course and which will colour, no doubt, further discussions. I hope that the noble Lord will withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will be as brief as I can. On the amendment from the noble Lord, Lord Blencathra, I welcome his support for the principle of Amendment 369, but our amendment does fully respect the rights and freedoms of others and does so expressly in proposed new subsection (3)(c). That does not mean that any inconvenience to citizens should be accepted as a reason for restricting the right to protest. I make the point that the noble Baroness, Lady Jones, and others have made: that nearly all protests cause some inconvenience and noise without unduly infringing the rights of others. I suggest to the noble Lord, Lord Blencathra, that, certainly as they are framed, his amendments smack of intolerance in their failure to countenance any inconvenience.

All noble Lords have accepted that the rights of neither side of the argument are absolute—the noble Lords, Lord Walney and Lord Goodman, made the same point. I believe, along with others, that the toleration of some inconvenience is the price of the democratic right to protest.

The noble Lord, Lord Pannick, is absolutely right that we have the ECHR rights, and he knows that I regard them as of critical importance. He makes the point—supported by the others, and it would be echoed by me—that Amendment 369, in part, duplicates the ECHR rights; I am bound to say that I do not regard it as likely that there will be satellite litigation about the difference between the two sets of rights. One point that bears on his argument is that the statement in domestic legislation that directly bears on the right to protest—whereas the Article 10 and Article 11 rights do bear on it but not as directly as our amendment —is of great importance. But that is only part of the picture.

I am also absolutely clear that I am not criticising and have at no stage criticised the police for enforcing the law. Indeed, as it happens, I take the contrary view. I do not believe that the police should have discretion not to enforce the law except on quite serious grounds of convenience.

I criticise the fact—I say it is relevant, when the Minister said it was not relevant—that the need for reconsideration of the Terrorism Act in the light of what has happened, and it has left us in the position that peaceful protest can lead to prosecutions that are unintended, means that a full review is necessary. I, of course, welcome the review of noble Lord, Lord Macdonald of River Glaven, and I welcome the fact that the Government have put that in train, but a further full review over a longer period is necessary.

However, the absolutely crucial point about the need for Amendment 369 is the one the noble Baroness, Lady Fox, made: it would impose an express statutory duty on public authorities to respect, protect and facilitate the right to protest, which is not anywhere in the ECHR. There may be resource implications to that, but it only reflects the importance we place on preserving democracy and the right to protest along with it.

For the time being, I will of course seek leave to withdraw the amendment, but I will reconsider the position between now and Report, having regard to the support I have received from some quarters around the House, but not universally.

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[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

It is now appropriate for the noble Lord, Lord Marks, to tell the Committee whether he wishes to withdraw Amendment 369.

[Lord Marks of Henley-on-Thames (LD)]

I apologise for intervening too early, and I seek leave to withdraw my amendment.

Amendment 369 withdrawn.