Public Order Act 2023

Joanna Cherry Excerpts

Tuesday 16th May 2023 Commons Chamber

[Alison Thewliss]

As the hon. Gentleman knows, we will be taking evidence on this issue in the Home Affairs Committee tomorrow from people who were arrested under this very legislation, who had no intention of being violent or anything of that kind. It will be interesting to hear from them what they say about the operation of the Act in practice.

[Joanna Cherry (Edinburgh South West) (SNP)]

One of the witnesses who will be giving evidence to the Home Affairs Committee tomorrow is Adam Wagner, a respected barrister. He said that the difference between the old law and this Act is that previously the touchstone for interference with the right to protest was when disruptive protest spilled over into a threat to public order and violence. Now, disruption is in and of itself defined in the criminal law as a threat to public order. That is an independent barrister giving an answer to the question asked by the hon. Member for Bury North (James Daly), is it not?

[Alison Thewliss]

It certainly is. When we look at how the Act has operated in its first outing, we know that although it is working as the Government intend, it is not working as some people claim it is.

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[Chris Philp]

My hon. Friend puts it very well: the right to protest does not extend to the right to deliberately and intentionally disrupt the lives of fellow citizens by, for example, intentionally causing a 10-mile tailback on the M25. That is not reasonable, it is not proportionate, and it is quite right that we stop it.

[Joanna Cherry]

I do not think anyone is disputing that articles 10 and 11 of the ECHR are qualified rights, but it is not just the SNP that takes the view that this Act goes beyond what is permissible under articles 10 and 11: the Joint Committee on Human Rights, a cross-party Committee that I chair, unanimously published a report saying we thought this Act went beyond what was acceptable under articles 10 and 11. So will the Minister acknowledge that this is not just an SNP view, and that it is a view held by a cross-party Committee of both Houses that this Act went too far and breached articles 10 and 11?

[Chris Philp]

I understand that the hon. and learned Lady’s Committee reached that view; clearly the Government, informed by considered legal advice, took a different view. That is why on the front of the Bill when it was published there was a statement made under section 19(1)(a) of the Human Rights Act 1998 that the Government’s view—informed, as I have said, by legal analysis—is that it is compliant with the ECHR. That is particularly because, as the hon. and learned Lady acknowledges, articles 10 and 11 are qualified rights and they are qualified by, among other things, the right of the legislature and the Government to prevent “disorder or crime”. I put it to this House that causing a 10-mile tailback on the M25 does constitute disorder, and I would say we are entirely entitled to protect our fellow citizens from being prevented from getting to hospital or getting their children to school.

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[Chris Philp]

No, I do not. I grateful for the opportunity to talk about that in more detail. Of course, there was an urgent question on the topic last Tuesday, when we debated and discussed it at some length. Since the hon. Member asks about the coronation, let me turn to that, as it is prayed in aid frequently. The most recent information that I have is that a total of 70 arrests were ultimately made on the coronation day. As I understand it, only six out of 70 were made under the new Public Order Act 2023. The others—I will not read out all of them—included arrests for possession of class A drugs; a sexual offender in breach of a condition; 14 people arrested and bailed for breach of the peace; 32 people arrested for conspiracy to cause public nuisance, all of whom have been bailed; one person arrested and bailed on suspicion of sexual assault; and one person arrested for handling stolen goods. The list goes on.

So 70 arrests were made, but only six of those were under the powers in the new 2023 Act. Of course, arrests may be made on the basis of reasonable suspicion. Much has been made of the fact that people were subsequently released. The six Republic protesters were released, and no further action is being taken. It is entirely possible for someone to be arrested on the basis of reasonable suspicion but, on further inquiries being made, it may be that the threshold for charge or prosecution is not met. Of course, in that case, no further action will be taken.

As I said in response to the urgent question posed by the hon. and learned Member for Edinburgh South West (Joanna Cherry) last Tuesday, we need to keep in mind the context in which the coronation took place. In the 24 hours preceding the coronation, there was a lot of intelligence—specific intelligence—about several well developed and well organised plots to cause serious disruption, including deliberately causing the horses to stampede, throwing paint over the ceremonial procession and, separately, locking on to the ceremonial route. This was a huge policing operation, with 11,500 police deployed that day, policing an enormous crowd. Things were moving very quickly indeed. Given that, the police were doing a difficult job in difficult circumstances—it was the event of a generation and the eyes of the world were upon us—and I think they did act reasonably.

[Joanna Cherry]

The Minister said a moment ago that only six people were arrested under the new Public Order Act and that they were the six Republic protesters with the luggage straps. When I asked my urgent question last week, we did not know about the Australian superfan who had had gone out to celebrate the coronation and was lifted on The Mall and held in prison all day. Will the Minister tell us on what basis that lady was arrested? I would be really interested to know, and I am sure that her solicitors will be as well.

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[Joanna Cherry (Edinburgh South West) (SNP)]

The last 12 months have seen an unprecedented attack on the right to protest, not just with the Public Order Act but with part 3 of the Police, Crime, Sentencing and Courts Act, which preceded it. The right to protest is part of the right to freedom of expression. In the travaux préparatoires for the European convention on human rights, freedom of expression was described as

“the touchstone of all freedoms”.

That is because it is essential for the fulfilment of all our other rights and it is also an essential underpinning of any democracy. The European Court of Human Rights has said that freedom of expression constitutes one of the “essential foundations” of a democratic society:

“it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

That is the price of freedom of expression, and a democracy that loses sight of that is in trouble.

Unfortunately, across the United Kingdom, we are allowing a degree of authoritarianism to creep into our public life. We have even recently seen the police turning up at the door of members of the public to check their thinking, which is a serious attack on freedom of expression. When the police interfere with the right to protest, it is a similarly serious attack on freedom of expression.

I know Conservative Members purport to care very deeply about freedom of speech, and I am on record as saying that I think the left needs to do more to speak up for freedom of speech, but I am afraid to say I detect a degree of hypocrisy that a party that says it wants to strengthen protections for freedom of speech in the now defunct Bill of Rights and in the Higher Education (Freedom of Speech) Act 2023 has passed legislation that is a fundamental attack on the right to protest, which is another crucial aspect of freedom of expression.

[Sir Julian Lewis]

I have huge respect for the hon. and learned Lady, who has been courageous in expressing her views on gender, with which I happen to agree. It is disgraceful that she has been cancelled and had her right to free speech infringed in many ways, but I put it to her that she is talking about people’s right to say what they want to say, rather than how they go about protesting, which is what the Public Order Act is about. She has every right to say what she wants to say, but does she have the right, for example, to use huge amplifiers in a public space for hours on end so that nobody can hear themselves think? The Act is not about content; it is about protests that infringe the right of others to go about their normal life.

[Joanna Cherry]

As others have said, it is a question of balance. I think it was a Conservative Back Bencher who, during one of our many debates over the past year on the right to protest, listed all the laws that already applied in England and Wales and the huge amount of powers the police already had to deal with disruptive protests prior to the passage of the Public Order Act and part 3 of the Police, Crime, Sentencing and Courts Act. On one level, we could say this legislation is quite performative, because the police could already use existing laws, but on another level it is much more than performative because, as we saw at the coronation, it could have a chilling effect on the right to protest.

I am grateful to the right hon. Gentleman for the generous things he said about me, and I am happy to tell him that I have been uncancelled as a result of taking legal advice. For women like me who are being cancelled because we do not agree with self-identification of sex without any safeguards, it is not just a question of our right to freedom of speech; it is also a question of our right under the Equality Act 2010 not to be discriminated against because of the philosophical beliefs we hold, which an appeal court has said are worthy of respect in a democratic society.

I digress, because the point I want to make is that the right to protest is an aspect of freedom of expression. Conservative Members say they care about freedom of expression when it comes to freedom of speech in the now defunct Bill of Rights and in the Higher Education (Freedom of Speech) Act, but they seem to care about it rather less when it comes to their crackdown on the right to protest.

Both those Acts and the Public Order Act, which we want to see repealed, apply only in England and Wales, but as my hon. Friend the Member for Glasgow Central (Alison Thewliss) ably explained, in her usual way, many Scots come to London because, unfortunately, the seat of power is still at Westminster and a lot of legislation is passed in Westminster on matters about which Scots feel very strongly, such as nuclear weapons, so we often come here to protest. It also matters what happens to foreigners who come to London. What happened to that Australian lady who was lifted by the police and kept in jail all day on the day of the coronation was a disgrace. I hope she has taken legal advice, because she ought to be able to get hefty damages for wrongful arrest. I can just about understand why the police might have made a mistake, but I do not understand why they did not realise their mistake sooner and why that poor woman was kept in the cells for hours on end. There is a suspicion that political pressure was on the police to crack down, and I will come to that in a moment.

At the time of the death of Her late Majesty Queen Elizabeth, there were some protests when the new King was proclaimed. Many of us were concerned about heavy-handed arrests of people, both north and south of the border, who were protesting in the name of republicanism, anti-imperialism or disapproval of the behaviour of a certain member of the royal family. Some might question whether it was the appropriate time to do that, after the death of the Queen, but the right to protest is fundamental and should be facilitated. The fact that it might upset some people does not mean it should not be allowed to happen. After what happened in the aftermath of the Queen’s death, many of us warned that in future greater care would need to be taken by the police to facilitate the right to protest, particularly during the coronation. What is so awful about what happened to those six republican protesters lifted because of their luggage straps, under the locking-on provisions of the 2023 Act, is that they had gone to incredible lengths to discuss in advance with the police the nature and extent of the protests they wanted to make. They were then lifted at the start of the day and, again, held until after 11 o’clock at night. I do not understand why they had to be held for so long when a mistake had been made.

Instead of looking at the necessity of facilitating protest, what happened prior to the coronation was that parts of this Act were rushed into force with incredible haste and they appear to have been used to crack down on protesters who had gone to considerable lengths to try to clear their actions in advance with the police. As I said, there is a suspicion that political pressure was brought to bear on the police. If that was to have happened in a democracy, it would be scandalous. It is not me making this accusation, because a senior source in the Metropolitan police said that “pressure” had come from above and Sir Peter Fahy, the former chief constable of Greater Manchester police, said on Radio 4’s “Today” programme that what happened with the wrongful arrests at the coronation has to be seen in the “context” of media, political and public pressure on the police. He referred to what he called

“some pretty direct and personal feedback”

brought to bear on Sir Mark Rowley before the Home Affairs Committee on 26 April. Sir Peter, a senior retired police officer, also said, as the Opposition and the SNP have said in this House and are saying again today, that the 2023 Act is poorly defined and far too broad. That is what Opposition MPs said about the offence of locking-on and it was proved to be right by the arrest of those six innocent protesters at the coronation.

[Peter Grant]

I have no doubt that the Government will deny until they are blue in the face that any political pressure was ever put on the Met, but does my hon. and learned Friend agree that the deliberate timing of the rushed passage of the Bill through its final stages could not have done other than send a clear message to the Met that it was expected that that legislation was to be vigorously enforced on coronation day, the first major day of protests after it was put in place? Is it not the case that the Met commissioner’s statement could only have been intended to make every police officer on duty that day feel that they were under pressure to deliver the goods?

[Joanna Cherry]

That very much seems to be the case.

As my hon. Friend the Member for Glasgow Central (Alison Thewliss) said, the Home Affairs Committee will be conducting an inquiry on this tomorrow and hearing evidence. I am pleased that both the Chair of the Justice Committee and myself, as Chair of the Joint Committee on Human Rights, have been asked to join in that inquiry. I am very much looking forward to getting to the bottom of the question of whether political pressure was brought to bear, because I want to be clear: it would be absolutely unacceptable if political pressure had been brought to bear on the police. That sort of thing should not be happening in a democracy.

I will wind up in a minute. I have been speaking so far in a personal capacity, but, as Chair of the Joint Committee on Human Rights, I wish to point to our legislative scrutiny of the Public Order Act and of part 3 of the Police, Crime, Sentencing and Courts Bill. The Joint Committee is a cross-party Committee of six MPs and six peers—Tory, Labour, Liberal Democrat, SNP and Cross-Benchers. We produced two unanimous reports saying that both Bills, as they were then, went too far in cracking down on the right to protest and did not get the balance right under articles 10 and 11 of the European Court of Human Rights.

[Kit Malthouse (North West Hampshire) (Con)]

I hesitate to tangle with the hon. and learned Lady on matters of law, but, given all that she has said, would she also support the repeal in Scotland of what some might say are even more draconian measures that surround protests? For example, protesters have by law to give 28 days’ notice to the police if there is to be a protest. The offence of malicious mischief has been used against Just Stop the Oil protesters, which has an unlimited fine and unlimited prison sentence. In 2021, the Scottish Government applied for restrictions to be placed on protests around the Scottish Parliament building where we have seen many arrests and, indeed, people banned for long periods for protesting. I just wondered whether her Committee or, indeed, she had a view on those matters.

[Joanna Cherry]

My Committee’s job is to scrutinise what happens in this Parliament, not what happens at Holyrood. However, I want to correct the right hon. Gentleman. It was not the Scottish Government who asked for powers to restrict protests outside Holyrood; it was the corporate body of the Scottish Parliament that asked for those powers, and I am on the record as having criticised that, so I am consistent in my position here.

I wish to go back to what the Joint Committee on Human Rights said about getting the balance right under articles 10 and 11. We said:

“The current rhetoric around protest tends to downplay the importance of the right to…protest”

and instead focuses on discussions about balancing the rights of protesters against the rights of members of the public. We saw two problems with that. First, it often leads to the right to protest being given insufficient weight in the balancing compared with the rights of the public. Given that the right to protest is protected by the convention, it should be facilitated by the state so far as possible.

The second problem with this balancing is that it automatically assumes the rights of protesters are inevitably in conflict with the public interest. But that is not the case, because while protests may cause inconvenience, they are also fundamental in a democratic society to facilitate debate and discussions on contentious issues, and that in itself is of value to the public generally. We reminded the Government of the state’s duty to facilitate protest, a positive duty, and the police’s negative duty not to interfere disproportionately with protest.

I support the repeal of the Public Order Act because I believe, and a cross-party Committee that I chair supports me in that view, that it went too far, that it breaches articles 10 and 11 of the ECHR and also that there is plenty of existing legislation that the police have at their disposal to deal with disruptive protests that spill over into violence or become, in a sense, out of control. Therefore, this Act is unnecessary. I think that it was performative and that it will have a chilling effect on the right to protest in England and Wales, which is deeply regrettable.