Public Order Act 2023

Kit Malthouse Excerpts

Tuesday 16th May 2023 Commons Chamber

[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.

--- Later in debate ---

[Tommy Sheppard (Edinburgh East) (SNP)]

On the afternoon of Saturday 6 May, I attended a rally called by the Scottish campaign group Our Republic at Calton Hill, overlooking Princes Street in Edinburgh. It was a well-attended event. People there were passionate and they were purposeful, but they were also extremely peaceful. They were, I think, buoyed up by recent polls showing that the case they were making is now supported by a majority of people in Scotland under the age of 35. They were there to express their opposition to the concept of an hereditary monarchy and to proclaim their support for Scotland becoming a self-governing country with a republican constitution that would allow the people to elect the Head of State.

Less than a mile away, at a different venue, there were people gathered to celebrate the coronation of King Charles III—a slightly smaller number, I have to say, but I am sure that they were just as passionate and just as purposeful. Both events were policed discreetly and minimally, and both events passed off without incident. They allowed people in Edinburgh to express conflicting opinions on what was undoubtedly the biggest historical event of that day and possibly of this year. That is as it should be, but I fear that if the main provisions of the Public Order Act had been in force in Scotland, events might have unfurled rather differently on that day.

Let me be clear why we are concerned about this. We have heard ill-informed opinions expressed from the Government Benches suggesting that there is something untoward about the SNP seeking to repeal a piece of legislation most of which does not actually apply in Scotland. I have the privilege of representing part of our capital city, Edinburgh—an area full of rich and active communities with a lot of engaged citizens who quite often wish to protest about injustices they see around them. As colleagues have said, many of the decisions about those things are made here in this Parliament, so when there is a protest about whether we should be part of the European Union, whether we should be arming ourselves with new weapons of mass destruction or whether we should be invading foreign countries, we can expect busloads of my constituents to come to this city and attend. It concerns me—indeed, it is unacceptable to me—that my constituents have less protection of their right of expression once they cross the border than they have when they are in Scotland. That is why I want this piece of legislation repealed.

The hon. Member for Bury North (James Daly) asked for evidence. The evidence I have to back up my argument is what happened on that same day on the streets of this city, less than a mile from this Chamber. At 7 o’clock in the morning, Graham Smith, the chief executive of the organisation Republic, and five other members of his organising team were arrested by the police. They were arrested on the suspected charge of going equipped under the new Public Order Act. It was 7 o’clock in the morning. I know Graham Smith. He is a man of the utmost seriousness, sincerity and integrity. There is no way that he would be associated with anything other than making a peaceful protest, and his arrest at 7 o’clock in the morning—before people had even come to the city centre—was not done in order to prevent harm being caused to others. It was not done because there was a threat to disrupt the coronation festivities. It was done, I believe, because there are people within Government and within the Metropolitan police who thought it might be embarrassing to the new King and the palace authorities for the demonstration to be successful, and wanted to try to disrupt that protest by removing its capacity—by taking away its key organisers and holding them in detention for 16 hours.

The truth is that the embarrassment that was caused that day was not to the King, but to this Government and the British state, because to all the rest of the world watching on, it looked as if a Government who try to stand up for dissidents in Moscow, Beijing or elsewhere were locking up dissidents on the streets of their own country. Nothing undermines an argument more than the charge of hypocrisy against those who advocate for it. That is why I believe those arrests and the use of the Public Order Act to make them have seriously tarnished the reputation of the United Kingdom as a global defender of human rights around the world.

It was the Public Order Act that was used, and there are provisions in that Act—new offences such as going equipped or conspiracy to order, or the new provisions for serious disruption prevention orders. Those are specific things in specific sections of the Act, but there is a much more insidious and sinister aspect to this issue, which is in the politics and the psychology around the legislation and its introduction. Two things are happening: the first is that law enforcement agencies are being given additional confidence, support and encouragement when they have an altercation with a protester. That allows some more zealous and less considered members of those law enforcement agencies the opportunity to go beyond the capacity of the law—to overstep, and to do some of the things that happened on 6 May. I would have thought that if any institution ought not to be given that encouragement, it is the Metropolitan police, given what has happened in recent years.

The other aspect of the psychological debate relates to citizens who wish to protest, because in debates surrounding this issue, the notion that there is somehow something illegitimate and difficult about people going to protest about something they are concerned about will lead many of them to sit at home and say, “I do not want to get involved. It is too much trouble.” That is not a good place for a democratic society to be. We ought to be making sure that we facilitate and stand up for the rights of people to express their opinions and disagree with others.

[Kit Malthouse]

I have a lot of respect for the hon. Gentleman, but he is giving the impression that north of the border in Scotland, no protester is ever arrested, convicted, or indeed put in prison. However, over the past five or six years, there have been numerous occasions when protesters have been arrested, convicted and imprisoned in Scotland, and indeed when protesters have had restrictions placed on their ability to repeat their protest. I was reading in the paper about a young lady in Glasgow who was restricted from continuing with her protest while on bail, so obviously the Scottish Government are drawing a line somewhere between these two competing rights. That is all the British Government are seeking to do in England and Wales.

[Mr Deputy Speaker (Sir Roger Gale)]

Before the hon. Gentleman replies, I ask him to keep a watchful eye on the clock.