Public Order

Alistair Carmichael Excerpts

Monday 12th June 2023 Commons Chamber

[Suella Braverman]

Sadly, we see unsurprising tactics from the Labour party. Again, Labour Members seek to distract from their woeful failure to stand up for the law-abiding majority, who want us to take these measures on protesters, and to cover up the fact that they have absolutely no policy to stop the boats. It is disappointing but unsurprising.

These regulations will ensure clarity and consistency in public order legislation in the following ways. First, they clarify that the police may take into account the cumulative impact of simultaneous and repeated protests in a specific area when considering whether there is a risk. Secondly, they permit the police to consider the absolute disruption caused by a protest—in other words, their evaluation may be irrespective of the disruption that is typical in that area. Thirdly, the regulations define the term “community” to include “any group” impacted by a protest, extending beyond those in the immediate area. That definition better reflects the cross-section of the public affected by disruptive protests in cities today. Finally, the regulations align the threshold of “serious disruption” with that in the Public Order Act 2023. This definition, proposed by Lord Hope, the former deputy president of the Supreme Court, is rooted in protest case law. It was debated at length by Parliament and deemed appropriate for use in the Public Order Act 2023. It should now be incorporated into the Public Order Act 1986 to ensure consistency across the statute book.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the Secretary of State give way?

[Suella Braverman]

I will not give way, as I have taken a lot of interventions.

The regulations will make it clear that serious disruption to the life of the community includes

“the prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities (including…the making of a journey)”.

These regulations do not create new powers but instead clarify powers that already exist. In support of that, we held targeted engagement with operational leads. The NPCC, the Metropolitan Police Service and the chief constables of the affected forces all welcome further clarity in law. To summarise, these measures ensure that public order legislation is clear, consistent and current.

In conclusion, I will always defend the rights of Just Stop Oil or anyone else to express their views, even to protest—that is free speech, that is the foundation of our democracy. However, its methods are deplorable. That is what millions of people, the law-abiding majority, and this Government believe to be true. These measures are for them—for the people trying to get to work, the people trying to get to a family funeral, the people trying to get to hospital. This Conservative Government are on their side.

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[Alison Thewliss]

Because the regulations are extremely unclear and extremely discretionary. [Interruption.] It is not clear at all in the regulations what is “minor” and what is “more than minor”, and neither of those things seem to me to be serious disruption. “More than minor” is not the same as serious disruption.

The regulations also refer to a “community”, which

“in relation to a public procession in England and Wales, means any group of persons that may be affected by the procession, whether or not all or any of those persons live or work in the vicinity of the procession.”

What does “affected” mean? Does that mean people saw it on the TV and they were upset by it? How are they “affected”? Again, that is unclear in the regulations, which will give police officers a huge amount of discretion to carry out the enforcement of this pretty lousy legislation.

[Mr Carmichael]

The hon. Member for Crewe and Nantwich (Dr Mullan) says that we have a common law system whereby common law offences are defined by precedent over many years—sometimes centuries. We are dealing here with a statutory instrument, and statutory instruments are different. That is why in the normal course of things, well-drafted legislation coming before this House has an interpretation section that defines such terms. Can the hon. Lady think of any good reason why we would not have a definitions section in this SI?

[Alison Thewliss]

The right hon. Gentleman’s point is correct, and it seems clear to me that not having a definitions section suits the Government perfectly. It will make it incredibly difficult for any police officer to do their job in these circumstances, which is why the police are perhaps a bit nervous about it.

Liberty points out that the police could consider, for example, that a static assembly outside of a train station by a trade union could result in a more than minor delay to access to public transportation. The police could subsequently impose a condition that the trade union cannot protest outside the train station, even though they are trying to protest against that particular employer. People therefore might be sent a way off somewhere else and have to say, “Instead of standing at Central station, we will go and protest at Glasgow Green.” That is just not logical and would make no sense in Glasgow, just as it makes no sense in this legislation here in Westminster. It is why the House should have nothing to do with this legislation.

I do not want to detain the House unduly, because I know that other Members want to speak, but this legislation is flawed and wrong. The Home Secretary mentioned people taking things into their own hands, but people are doing that because they are egged on by a lot of the rhetoric coming from those on the Government Benches and from the press. I have seen people being hauled out of the way and hit in some of the footage that has been shown, and that is disturbing. This Government suggest that people can protest only in a way that suits them, not in the way that people want to make their voice heard in this democracy.

The only slow walking we should be concerned about in this place is the slow walk on which the Government are taking this House towards a lack of democracy and fascism. Independence is now the only way that Scotland can be assured that our right to protest will be retained.

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[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Can I first say something about the process this afternoon? The hon. Member for Crewe and Nantwich (Dr Mullan) highlighted in his speech the many significant issues that this legislation brings to the House, and there are serious debates to be had about the balance between public protest and individual rights. I am not entirely sure that I buy his thesis that the need for protest ended when we achieved universal suffrage, but taking that as we may for the moment, these are significant and serious issues. That is why this House has evolved, over the centuries, a series of measures by which we are able to scrutinise legislation.

The Home Secretary spoke for only 12 minutes to persuade the House why this legislation was necessary. I cannot decide whether or not I am displeased. I generally like her speeches best when they are finished, so 12 minutes was not mercifully short. However, I think that for issues such as this, we deserve something more.

Some of the interventions we have heard from the Government side of the Chamber have also been quite telling. The right hon. Member for Gainsborough (Sir Edward Leigh), who has just left his place, said that this was to do with the understanding of the left about protest, as if those who protested were always from the left. I remember that in the early years after I was first elected to this House there were significant protests, causing massive disruption, by those opposed to the Bill to abolish hunting with hounds. I do not think that many of them would welcome being labelled as left-wing, and the view taken by the Conservatives in Parliament at that time was very different from the one we hear from them in government.

[Sir Julian Lewis (New Forest East) (Con)]

I have a lot of time for the right hon. Gentleman, but I think his memory is playing him false. I also remember the Countryside Alliance protest marches, and I believe they were organised in full co-operation with the police. It was similar with most of the Campaign for Nuclear Disarmament protests on the other side of the political spectrum. We are talking here about people who act unilaterally to obstruct others from going about their lawful business. The Countryside Alliance did not do that, so far as I recall.

[Mr Carmichael]

The right hon. Gentleman is actually correct in his recollection but also incomplete, because not all those protests were organised by the Countryside Alliance. I can remember the night when this House debated the Second Reading, and it was impossible for Members of this House to get on to the parliamentary estate because of the violence going on in Parliament Square. So if we are to take a view on the right to protest, that view must apply equally across the board to everybody, of whatever political persuasion, instead of simply, as we seem to be doing today, focusing on one aspect.

[John McDonnell (Hayes and Harlington) (Lab)]

The right hon. Member for New Forest East (Sir Julian Lewis) forgets that, when he was a member of the Labour party, he used to blast out very loud music at CND marches down Whitehall—he most probably would have been arrested by now.

[Mr Carmichael]

I doubt that the constable who would arrest the right hon. Gentleman has yet been commissioned, but the right hon. Member for Hayes and Harlington (John McDonnell) makes a good and fair point.

My concern is about not just the process but the weakness in the way in which this legislation has been drafted and brought to the House. On the lack of any proper definition of what constitutes “minor”, for example, we should not be leaving these things to the courts. The courts are not there to fill in the gaps that Parliament leaves behind. There may well be a serious body of case law that will define “minor”, but we know now that it is the job of this House to insert that definition and we are not doing it.

I confess that I have been somewhat surprised to hear the enthusiasm of the Democratic Unionists in relation to this legislation. I can only presume that that is because the territorial extent of this legislation is England and Wales only. However, as the hon. Member for Glasgow Central (Alison Thewliss) said, it could of course affect anybody who comes from there. We define community not just as people who live or work in a place but also those who would be affected by the process, and I wonder how the right hon. Member for East Antrim (Sammy Wilson) would feel if hundreds of people, or perhaps several thousand, deciding to walk slowly down a road playing flutes and banging a Lambeg drum were to be covered by such legislation.

[Sammy Wilson]

Will the right hon. Gentleman give way?

[Mr Carmichael]

Of course; I will give way in a few seconds.

Frequency is at the heart of the offence being created here, and as many people resident in Belfast and elsewhere in Northern Ireland would tell us, in the month of July such incidences are frequently to be found. I give way with pleasure to the right hon. Gentleman.

[Sammy Wilson]

I can assure the right hon. Gentleman that this House legislated a long time ago to ensure that people who engage in those activities are fully regulated by the law, and the Parades Commission has been set up for some time now, and causes great anxiety at home with some of its rulings. So there is that legislation and Members across this House, including members of his party and the Labour party who are protesting about this legislation now, were quite happy to legislate for the Parades Commission to regulate the Lambeg drummers, the fluters and those who celebrate the glorious 12th in Northern Ireland every year.

[Mr Carmichael]

I think the glorious 12th comes in August actually, but I bow to the expertise of those on the Conservative Benches on such matters.

In fairness, however, the right hon. Gentleman has a reasonable point, and I understand that the legislation to which he refers pertains only to Northern Ireland and that is perhaps why it is not part of this legislation. Essentially, however, as the shadow Home Secretary said in her remarks, this is an area of law that is already well regulated. Very few areas of lacuna remain within the law and this legislation is not in any practical, meaningful way going to fill any difficulties. What would fill difficulties is a better resourced police force that is better able to engage with people and take on board their wish to protest.

[Kit Malthouse]

Will the right hon. Gentleman comment on the fact that it is not just Northern Ireland that has regulation of protest? He will be aware that in Scotland it is a criminal offence not to notify the police within 28 days of an organised moving protest, and that people may face criminal sanctions if they do not do so. What is the difference between the legislation we are currently discussing and the law under which his constituents operate, where they may go to prison if they do not tell the police about a protest that is coming?

[Mr Carmichael]

I could be wrong because I am hopelessly out of date on so much of this stuff, but I think from memory that the right hon. Gentleman refers to the provisions of the Civic Government (Scotland) Act 1982, which was brought into force under a previous Government—a Government for whom I had very little time, but in terms of the way in which they went about their business were a model of parliamentary propriety compared with the mince that has been brought to the Chamber this afternoon. This comes back to the point I made about the hon. Member for Crewe and Nantwich: there are serious issues here to be decided—serious issues about the balance between the rights of the individual to protest and the rights of the community to go about their business—but this is not the way to deal with them.

The shadow Home Secretary made the point that this is an area where there is already extensive legislation. Problems arise not from the lack of legislation but from the lack of the ability to implement properly and with consent the laws we currently have.

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[Caroline Lucas]

I thank the right hon. Gentleman for his intervention and I agree.

This SI comes in the wake of our official police watchdog warning that public trust in police is “hanging by a thread”. This is no time to risk increased politicisation of the policing of public order.

The Equality and Human Rights Commission has made it clear that it has grave concerns about this measure, advising that

“the measures go beyond what is reasonably necessary to police protest activities.”

Its briefing warns of its concern about incompatibility with the European convention on human rights and of a “chilling effect” on the right to freedom of expression.

Moving on to the style—the way in which this is being done—the Government are trying to do something which has never been done before: they are trying an abuse of process that we must not permit, whatever we think of the content of the SI and the intentions behind it. The restrictions on protest rights that this SI seeks to impose were explicitly rejected by Parliament during the passage of the Public Order Bill—now the Public Order Act 2023—in February 2023. This is the very opposite of the integrity that the current Prime Minister promised when he took over. It is a blatant continuation of the casual disregard for Parliament’s democratic standards that he promised to discontinue.

My Green party colleague in the other place, Baroness Jenny Jones, has tabled a fatal motion to kill off this affront to our rights and our democracy, and it will be before that House tomorrow. Rightly, for primary legislation the unelected House of Lords is a revising Chamber. As Members will know, this is secondary legislation and it needs the approval of both Houses. Presumably, that is to avoid the type of situation we face now, where an SI could be used by the Executive to reverse a Lords revision to primary legislation that they do not like.

[Mr Carmichael]

I am grateful to the hon. Member for giving way, because that gets to the heart of the matter as far as the other place is concerned. The Government, in bringing the regulations to the House in this way, are riding roughshod over the conventions of this House. We have a system that relies on checks, balances and conventions, so when our noble Friends in the other place come to consider this legislation, might they also be entitled to say that, with a check having been removed, they are entitled to adjust the balance and pay the same regard to the conventions of their House that the Government have done to the conventions of this House?

[Caroline Lucas]

I thank the right hon. Gentleman very much for that contribution. He makes a valid and legitimate point, which I had not considered.

The regulations represent a gross Executive overreach. I sincerely hope that the motion is defeated. If it passes because hon. Members choose to allow this twin attack on our right to protest and on parliamentary democracy, I encourage every Member of the other place, whatever they think of the content of the statutory instrument, to vote for Baroness Jones’s fatal motion tomorrow, because to ride roughshod over primary legislation in such a way is a truly dangerous path to tread.

Finally, I want to distance myself entirely from the comments made by Conservative Members about the right to protest. I remind them that when people take peaceful direct action, they are doing so because they have generally been driven to feel that they have no alternative. They feel that the Government are careering over a climate cliff edge and they are trying to get a hold of the wheel. As the UN Secretary-General António Guterres reminded us:

“Climate activists are sometimes depicted as dangerous radicals. But the truly dangerous radicals are the countries that are increasing the production of fossil fuels. Investing in new fossil fuels infrastructure is moral and economic madness.”

I could not agree with him more.

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[John McDonnell]

I welcome that intervention.

The regulations put the local police in my area, as well as local protesters and the local communities in both the Hayes and Harlington constituency and the Uxbridge and South Ruislip constituency, in an impossible position. They seem to apply almost perfectly to our local situation. If I go through the various criteria, the first is “cumulative” impact. I am not sure how we judge cumulative. Is that over a limited period of time or a short period of time? We have been protesting there since 1978. Is that cumulative? Does the police officer have to take that into account at the local level, or should he or she set a limited timescale on that?

[Mr Carmichael]

I am grateful to the right hon. Gentleman for giving way, because this again comes to the heart of the process in the legislation we are passing. The proposition from the Government Benches is that it is all right, because the courts will fix out these things. Long before it gets anywhere near a court, it will be a decision for police officers on the street, the borough commander or whomever it will be. Is that fair on police officers?

[John McDonnell]

The history of protest around Heathrow is actually an example of a model relationship between protesters and local police. It has worked very well up to now. We have had some issues. One protester who was with me in the negotiations between the police and the climate camp was, I now discover, a police officer—part of the spycops situation. But what I am saying is that it puts people in an impossible position. What is cumulative?

On absolute disruption, the explanatory memorandum states:

“For example, serious disruption may be caused if a procession or assembly causes a traffic jam in an area where traffic jams are common.”

At certain times of the day in my constituency, I cannot find many streets where there isn’t a traffic jam on the main roads, to be frank. It goes on to talk about the meaning of “community”. Define the term community. Is that just the Heathrow villages, or is it Hayes and Harlington? The protesters came in from Uxbridge as well. It goes on to list the types of facilities where protests will be banned, and it includes “a transport facility”—so, Heathrow airport. The regulations have almost been designed to prevent any form of protest against the third runway. In fact, they are almost perfectly designed to arrest the former right hon. Member for Uxbridge and South Ruislip—perhaps that is what the Conservative party is up to.

I just think that this is one of those pieces of legislation, like the old Dangerous Dogs Act 1991, that is unworkable. It will be back here next year or the year after, but after having put police officers and protesters in a virtually impossible position. The Government need to think again. This is not the way to legislate anyway, without proper due consideration.

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[Sammy Wilson]

Well, let us take the Extinction Rebellion protests we had here. Stars were flying in from America to join them. They did not feel any qualms about it. They did not even see the hypocrisy of it. For some protesters, the important thing is that other people should be affected by their concerns—that they should be able to live a lifestyle and engage in actions that have no impact on them but that do have an impact on others. People go out of their way consciously to cause disruption to others and cause anger, frustration and sometimes a detrimental impact. They protest about the quality of air in London and the burning of fuels, and what do they do? They cause traffic jams where people are belching out smoke from the back of their cars and burning petrol. Yet it seems that we should tolerate that. Unfortunately, it has been tolerated. I saw the frustration it caused many commuters. We see it on our television screens time and time again. The Government are, I believe, obliged to do something about it.

There is a certain hypocrisy and inconsistency about some of the arguments we have heard tonight. It has already been referred to that there are those on the Labour Benches who are quite happy to say that someone who glues themselves to a road or causes physical destruction to paintings in an art gallery should be tolerated, but someone who stands outside an abortion clinic and prays should not be tolerated. That kind of inconsistency shows that this is not so much about the methods that the Home Secretary is introducing today, but about who they are targeted at. I think that is the important thing. I was challenged by the right hon. Member for Orkney and Shetland (Mr Carmichael) about parades in Northern Ireland. This House supported the parades legislation for Northern Ireland, which is quite draconian. In fact, it can ban a parade that may take three minutes to pass a flashpoint, because sometimes people have come from 50 miles away to be offended by it. If they protest, the Parades Commission can make a ruling against the parade. So, we can see an inconsistency in attitudes across the House.

[Mr Carmichael]

The good news, I suppose, for the right hon. Gentleman is that those seeking to stop his walks or marches would not have to travel 50 miles. They would just have to say that they were affected by it, because that is the definition of community.

[Sammy Wilson]

A number of Members have made the point that that leaves interpretation for the police. Has the community been affected? What has been the cumulative effect? Is the protest too noisy? But that is true in every situation where a policeman or policewomen on the ground has to make an operational decision. Do I take this drunk out of the pub, or do I allow him to stay there? Do I talk to him and let him walk away, or do I stick him in the police van? Of course those operational decisions will always be with the police. However, having seen some of the attitudes not just of police officers on the ground, but of some of those in command and in the courts, my worry is that regardless of what legislation we introduce here tonight, the interpretation of what is happening will come down to what the officers or the judges think of the protesters’ case. That is where the real difficulty lies.

As a protester, I do not want to see us living in what one Member has rather exaggeratedly described as a fascist regime. This is not fascism. This is about a Government having to make a decision as to what we do in a democracy to allow people to make their point even if we do not like the point that they are making, and to stop people being impacted by the protest even though the protester has made it quite clear that that is their main aim anyway. Although I am always more sympathetic to protesters than I am to the legislation against them, I think that this measure is necessary tonight and we shall be giving it our support.