Police Reform and Social Responsibility Bill

Lord Wallace of Saltaire Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Rosser]

My Lords, I have an amendment in this group but we agree with the repeal of the provisions in the Serious Organised Crime and Police Act 2005 relating to demonstrations in the vicinity of Parliament. We also agree with the need for further proposals and for the use of the 1986 Public Order Act. The 2005 Act created a new offence of demonstrating without authorisation in what is described as a designated area, which was defined by order. That designated area had to be within 1 kilometre of Parliament Square. The use of loudspeakers in the designated area was also banned.

However, that Act had unacceptable and unintended consequences on the right of some to protest and it soon raised concerns that the Act had not, in reality, struck the correct balance between the right to protest and the rights of people to go about their everyday business and for them to enjoy Parliament Square. A proposal to repeal the provisions of the 2005 Act was included in the Constitutional Reform and Governance Bill. That proposal fell in the wash-up at the 2010 general election.

In looking at the Government's proposals we have some questions to raise, simply to test whether they are likely to achieve their objectives. It would certainly be helpful if the Minister could define the problem that the Government feel that their proposals will address, and to define the harm that the Government are trying to deal with. The Government’s proposals are, in many ways, similar to the provisions of the Serious Organised Crime and Police Act but they apply to a much smaller area, namely Parliament Square. How did the Government decide that Parliament Square should be the limit of the area to which their proposals should relate? Although he is not in his place, the noble Lord, Lord Blencathra, had amendments proposing, as I understand it, to include Abingdon Green. How would the situation be addressed if those protesting—the permanence of existing protests is an issue—moved just outside the area of Parliament Square?

Do all the parties directly involved support the Government’s proposals, including the Greater London Authority, Westminster City Council, the Metropolitan Police and indeed the House authorities here? Are there any areas of disagreement over the scope or the practicality of the proposals?

We recognise that this is not an easy issue to resolve and that at the end of the day it will not just be about what is or is not in the Bill or any associated documentation. It is also about the degree of common sense—which, hopefully, will be considerable—that will be applied by all concerned in implementing the powers in the Bill.

[Lord Wallace of Saltaire]

My Lords, with nine clauses to deal with, worrying about a very small traffic island seems on the face of it to be a bit excessive, but I recognise that there is concern about the current situation in Parliament Square, the overkill that SOCPA applied to it and the question of what we put in place as we remove SOCPA. On the problem that we are trying to address and the harm that we are trying to remove, I say to the noble Lord, Lord Rosser, that the democracy encampment actually produced a considerable amount of harm to Parliament Square Garden. The garden, which should be there for the enjoyment of all, is still fenced off, as the noble Lord well knows, and not only tents but some semi-permanent structures now obstruct the pavement.

I also recognise that this is part of a much wider discussion that we need to have, not just on the Bill but about the future of Parliament Square and of this part of Westminster as a whole. We had a useful debate on this on Friday, to which one or two Members here contributed. I recommend that those who were not here on Friday read Hansard. The debate raised some much wider questions to which I hope this Chamber will return, and which I hope that Members of both Houses and the authorities of the Abbey and the Supreme Court will address.

[Lord Desai]

Is there not anxiety on the part of the demonstrators that if they do not have permanent structures they will not be able to come back the next day and demonstrate? They are worried that if they demonstrate only during the day and then go home, the next day the police will say, “You can’t come here”. They are probably trying, in a clumsy way, to establish a right. I quite agree that these structures are ugly but that right is a crucial one to protect, and we should not worry too much about the structures.

[Lord Wallace of Saltaire]

My Lords, there is no evidence for what the noble Lord has just suggested. We are talking about proportionality in a whole range of different ways here. Parliament Square, Old Palace Yard and the area around them, as some noble Lords were saying on Friday, ought to be a great democratic space to be enjoyed by a large number of people, not just those who come to visit Parliament or those who wish to make their views well known—loudly known—but also tourists and those substantial numbers of people who pass through Parliament Square every day on their way to and from work. It is a transient population that is obstructed by those who wish to be here permanently. Some of those structures are semi-permanent. I think that the noble Lord will agree that if the Aldwych—to take where he and I used to work as an example—had a similarly permanent encampment, there would be real problems of obstruction of the footway and so on.

The question that we are dealing with is: how best to arrange Parliament Square for the enjoyment, and the presence, of the maximum number of people under shared rules for all who come. This is a very large area. The intention of this part of the Bill is to give much greater clarity to protestors, public and the police as to what is and is not acceptable in Parliament Square. As I said on Friday, overnight protests and vigils are clearly one sort of acceptable behaviour. Being there for a year at a time—or, in the case of Brian Haw, several years—is a different sort of presence. It begins to obstruct the rights of others. I am sure that the noble Lord is familiar with John Stuart Mill and On Liberty, and the question of how one’s liberty has not to obstruct the rights of others. The maximum number of people in the democracy encampment was, I think, nearly 150. Brian Haw’s group has always been a mere handful. So we are trading off different rights. That is the purpose of this place.

I therefore say to the noble Lord, Lord Campbell-Savours, that scrutiny of this is taking place in a wider context, not simply today. We discussed this on Friday and there is, indeed, another Private Member’s Bill. This will continue to be a large set of issues.

The noble Baroness, Lady Miller, asked whether the policeman was a mind-reader. No, certainly not. Before anyone can commit an offence under these provisions, they must first be issued with a direction to stop: a warning. It is acceptable to issue a warning to someone you see carrying their sleeping bag and various other things that they should not put it down and spend several nights on it. That is what is intended in this clause.

The noble Baroness talks about fears of domestic extremists. I do not particularly want to go down that road beyond saying that I recall that when I once turned up to speak to the Campaign for the Accountability of US Bases in Britain at RAF Menwith Hill, it was remarkable how quickly the MoD policeman appeared to recognise who I was—my name and everything else. Perhaps I am on the list, too. We do not need to go too far into that for the moment.

These amendments rightly test the replacement for SOCPA. The Government’s view is that getting rid of SOCPA and replacing it with measures that existed before—as far as demonstrators are concerned, the previously operating Public Order Acts—is the right response. There is a trade-off between different users, as I have already said. However, there is a clear consensus on all sides of this Chamber after five years of debate that Parliament Square should be fully developed as a democratic space and that we should be discussing with the Palace authorities, the Abbey, the Supreme Court and others how to use it better. That discussion is rather wider than the Bill goes and needs to be continued elsewhere.

The question of Abingdon Green was raised briefly. There are particular problems because Abingdon Green is private, not public, property. Noble Lords will be aware of the many subtleties of who is directly responsible for which bit of the various facilities around here. There are risks of hybridity if we apply this Bill to Abingdon Green. However, we understand the practical challenges in terms of applying these various remedies. The Government will therefore additionally discuss with the House authorities the benefits of moving an amendment on Report to make provision for a power of seizure to be attached to Royal Parks regulations, which apply to Abingdon Green, to support the position that we have taken for effective enforcement of GLA and Westminster City Council by-laws.

[Lord Campbell-Savours]

Suppose that there is a big demonstration in London with a couple of thousand people on Whitehall all marching down towards Parliament Square carrying sleeping bags. Suppose that it looks to a police officer that they may well want to spend the night somewhere in the vicinity of Parliament. It does not mean that they are going to do it every day, or every week or whatever; they are not going to put up tents or anything. What would happen in those circumstances? Would the police simply ignore it? Or would they somehow find some excuse under the proposed legislation to say, “We are warning you, you cannot do it”. Then, if they breach that, an argument breaks out on the streets between the police and the demonstrators.

[Lord Wallace of Saltaire]

My Lords, the noble Lord is enjoying asking a hypothetical question. As we know, the police operate through discretion and by consent. I remind him that the most hostile response I have had from the House when answering a question was when we discussed sessional orders and a number of his colleagues on the Benches opposite demanded that the police should clear space for their cars to enable them to drive through large demonstrations on their way to the House. I had to point out that the police operate by consent and occasionally do not wish to clear away thousands of demonstrators in order to ensure that noble Lords can drive in here. These are matters of judgment. We have to allow the police to operate by consent and to have confidence in them in that regard.

We are working with Westminster City Council and the Greater London Authority to ensure that the relevant by-laws are strengthened to deal with disruptive activity in the wider area as well as in the central traffic island—as I call it—of Parliament Square itself. Our approach is aimed at targeting specific problems in a small area of Parliament Square and empowering the local authority to take action by giving it the ability to enforce relevant by-laws more effectively. Having reassured the Committee on that, and having encouraged it to continue the wider debate which we started on Friday about the future of Parliament Square, Old Palace Yard and the environs of this world heritage site, I hope that I can persuade the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, I am grateful to my noble friend and to the noble Lord, Lord Desai, for their support. I keep coming back to my question about what is so special about Parliament Square, apart from the fact that we love it. Noble Lords may have noticed that although I oppose a great deal of the Bill, the encampment is a different matter. I am not entirely encouraged to hear that more by-laws may be applied, but there we go.

I do not think that my noble friend answered my question about Clause 142(2). Can he answer the question about when it applies from—what I said was not technically retrospective—

[Lord Wallace of Saltaire]

My Lords, I apologise. That is very much a transitional arrangement to ensure that those who are already encamped there when the regulations are changed are not enabled to say that they do not apply to them. As I say, this is a transitional arrangement.

[Baroness Hamwee]

My Lords, I understand that but since they will be committing an offence it may well be relevant to how long that offence has been committed for. If a direction is given on a Wednesday and they move the following Wednesday, they have committed an offence for a week, but they may have committed an offence for a year and a week if this measure is not technically retrospective, as I say. In terms of sanction, I would have thought that might be very relevant.

[Lord Wallace of Saltaire]

My Lords, that is a very fair point. I promise that I will go back to the department and will write to the noble Baroness about that.

--- Later in debate ---

[Lord Rosser]

My Lords, I hope that I have the right group of amendments and will not start talking to something that I am not meant to be talking to. I will not add to the points made by the noble Baroness, Lady Miller of Chilthorne Domer. Like her, I await the response with interest. I will raise the issue of guidance, which is covered by an amendment in this group in the name of my noble friend Lord Dubs, who unfortunately is not in his place. I will not go through everything in the amendment, but will simply ask the Minister for clarification. There have been one or two references to other documentation or some form of guidance being issued. Can this be clarified now across the Dispatch Box? What part of the clauses relating to Parliament Square that we are discussing will be the subject of further guidance, perhaps to identify the meaning or interpretation that is to be put on some of the words that are used, in addition to the specific guidance referred to in the amendment? I ask this in the context of wanting to be clear on what areas the Government are going to issue guidance about as far as concerns the clauses in relation to Parliament Square.

[Lord Wallace of Saltaire]

My Lords, I will say two things before I answer the particular points. First, we will come back to Parliament Square on Report. The noble Lord, Lord Blencathra, was unable to be here today and asked to withdraw his amendments and bring them back on Report. I very much hope that we will take further the whole issue of what we should do about the environs of Parliament. I say to the noble Lord, Lord Campbell-Savours, that I have been thinking about when I first became conscious of how special this area is. It was when I was standing on top of the Henry VII chapel at the 1951 State Opening of Parliament. I was fascinated by the speed with which the Westminster City Council rubbish collectors picked up the horse manure as the Horse Guards rode past. My views on what is important have changed a little since then. The following year I sang in Westminster Hall at the lying in state of King George VI, and I have been involved in this area ever since. On Saturday night I will take part in a singing tour of the abbey, so I am probably among those who care most about the integrity of the area.

Secondly, in answer to my noble friend Lady Hamwee, I have the answer from the Box on Clause 142(2). If the provisions come into force on 1 May, for example, directions can be issued from 1 May onwards in relation to activity being engaged in from then, but they cannot include any activity that took place before then: there is no question of retrospectivity. Clause 142(2) ensures that ongoing encampments can be subject to directions once the provisions are commenced. I hope that that answers the point.

I turn to the points made by my noble friend Lady Miller. The Government note that the issues raised are similar to those raised by the Joint Committee on Human Rights. The issue is the appropriate maximum level of fine and whether it is commensurate with the potential damage and harms caused by the prohibited activities. Under the provisions, an individual commits an offence only when they fail to comply with a prior direction that provides an opportunity for them to desist from an activity before committing an offence. While the level of fine is higher than for some other comparable offences, this is balanced by the opportunity to desist from an activity before any criminal liability is attached. Level 5 is the absolute maximum penalty for this offence, and the courts have discretion in setting the level of fine in any case. The Government therefore consider that this maximum level of fine could be a proportionate response to an evidenced problem of serious and wilful disregard of local by-laws.

My noble friend also raised the question of how one measures the strength of protest. Again, we have to balance the strength of protest that a very small number of people wish to assist in against access for a very large number of protestors. I suspect that my noble friend was, as I was, on the demonstration against the Iraq war. We spent a very long time marching—actually, shuffling because there were so many people there—along the Embankment, through Parliament Square and down Whitehall. I never got to Hyde Park. There were 2 million of us. If there had been a small number of people encamped in our path, we would not have been able to get even as far as we did. One has to think about the right to protest in a balanced way. Strength of protest there was expressed by the number of people, not by the fact that any of us wanted to stay overnight and camp for the next six weeks in Hyde Park or anywhere else.

On the other amendment, the Government think that a maximum of 90 days strikes the right balance. Without any limit it would, for the person directed not to start a prohibited activity, be unclear and uncertain at what point a direction ceased to apply. With the limit of 14 days, we could, with some persistent resident protestors, so to speak, create a burden requiring unduly frequent renewal. Ninety days has been applied in a number of other areas for these sorts of orders.

Subsections (1) and (2) of this clause provide that the direction to stop a prohibited activity may include a direction that the person does not start doing that activity again and that the direction continues in force for a period of time specified by the constable or authorised officer giving the direction.

Then we come to the use of “varied” in Clause 145(6)(c). We thought it fair to give officers the ability to amend a direction given to enable them to deal with changing operational circumstances. This would mean the officer would be able to change the duration of the direction or to reinforce the direction taking account of changing circumstances. This amendment would curtail the rights of officers and reduce their ability to respond proportionately to changing circumstances, and we are all familiar with how difficult it can be to do so in large demonstrations.

I am not sure whether the noble Lord, Lord Rosser, formally moved the amendment tabled in the name of the noble Lord, Lord Dubs, but our sense on the amendment is that he was providing detailed guidance of the sort that should not be in the Bill but which should be provided. I think I will need to write to the noble Lord about exactly which parts of these clauses will be subject to further guidance, but I promise that I will write.

[Lord Anderson of Swansea]

When the Government look at issuing detailed guidance, I hope they will not neglect the concern of my noble friend Lord Dubs about the use of amplifying equipment. I recall that during the encampment in Parliament Square I was unable to use my parliamentary office in 1 Parliament Street over an extended period. I hope that that will be taken fully into account when detailed guidance is given by the Government. I have very many scars from that time.

[Lord Wallace of Saltaire]

My Lords, we will be coming on to that. I know that there are different, but very strongly held, opinions on amplifying equipment. Westminster City Council replied that by all their measures traffic noise was more important than the amplifying equipment. I think my colleague will be coming on to that on the next amendment.

[Lord Anderson of Swansea]

Members of Parliament were unable to do the job for which they were elected as a result of the activities of certain of the protestors.

[Lord Wallace of Saltaire]

Having heard this useful further discussion, I invite the noble Baroness to withdraw her amendment.

[Baroness Miller of Chilthorne Domer]

My Lords, on behalf of my noble friend I thank the Minister for his reply on the retrospective aspect of this matter. I am sure that she will be as reassured as I am by that. I thank him for his explanation on why the penalty is as it is. I still wonder whether 90 days is rather heavy-handed. We will want to come back to whether police officers should be able to vary their guidance or their judgment of a situation on Report.

Around the House, we are in agreement that peaceful protest is a good thing and violent protest is not. On 28 March, we had a good example. At the Fortnum & Mason peaceful protest, 138 people were charged. Of several dozen violent protesters only 11 were charged. Somewhere there the police did not get their judgment right. I am grateful that my noble friend the Minister has had such broad experience of protests—going on them and now from the Dispatch Box. I am sure that he will be able to weave a careful path through this very knotty issue. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Miller of Chilthorne Domer]

The noble Lord, Lord Campbell-Savours, is quite right. When parliamentarians from other countries come here it is one of the things that they comment on—and not adversely. They do not dwell as much on the slightly messier aspect that MPs and some noble Lords have complained about. They are more impressed with the fact that the demonstrations take place. There is much attraction in the noble Lord’s amendment, not least for the Government. They have signed up to a bonfire of regulations and this gets rid of an awful lot of regulations all at once. I imagine that they will be nervous of adopting it because it seems perhaps too gentle but for my part I am very attracted to it.

[Lord Wallace of Saltaire]

I note that these two amendments are identical, and almost identical to the Private Member’s Bill of the noble Lord, Lord Marlesford. Does this replace his Private Member’s Bill or will we return to this on 1 July, which I think is now scheduled for the Second Reading of his Bill, for a third debate on the issue that began with the Second Reading of the Private Member’s Bill of my noble friend Lord Tyler last Friday?

As I have already said, I welcome the discussion of not just the future of Parliament Square but also the whole question of the democratic environs of the Palace of Westminster. If I might go slightly off ministerial piste, so to speak, I think that we all recognise that the most intrusive element in Parliament Square is traffic. Some of us were actively supportive of the World Squares for All initiative which intended to close off either one or two sides of the square. That would give us back a major democratic space. Part of the reason that the encampment has been able to lodge on those pavements for some time without interference is because it is difficult for the ordinary person to get across the traffic on to Parliament Square Garden under most conditions except in the middle of the night.

If we are going to discuss the whole issue of Parliament Square and demonstrations in the vicinity of Westminster, Abingdon Green and so on, I suggest that we need to pull together a committee which will include not just the authorities here but also the Supreme Court, the authorities of Westminster Abbey and elsewhere. I am sympathetic to a good deal of what is behind the amendment but suggest that if we are to discuss this area it is not just a question of the management of demonstrations or the encampment in the middle of Parliament Square. The Government are working with the Greater London Authority, Westminster City Council and the Metropolitan Police on effective enforcement protocols. Guidance will be issued to the public about these new provisions. However, that is about the narrow issue of the future of encampments in Parliament Square. The wider issues that I suspect the noble Lord wishes to get to require debate outside the confines of the Bill. I therefore request him to withdraw his amendment.

[Lord Marlesford]

That was a pretty negative response, if I may say so. Although I shall withdraw my amendment, pending Report, I am very glad that I have a slot for my Private Member’s Bill on 1 July, when we will have the opportunity to discuss the matter in more detail. It was mentioned several times by people in the discussion of the Bill proposed by my noble friend Lord Tyler. Indeed, my noble friend himself said that it would be a very useful follow-on for his Bill. Others welcomed it, too. Frankly, the point made by my noble friend Lord Wallace about the traffic is pretty irrelevant; it is not in any way involved in what I am suggesting, nor is it involved in what the Government suggest in their Bill. So that is a bit of a distraction.

There seems to be an idea that this matter should be just pushed into the long grass. I know that the Home Office is very reluctant to accept views from outside, but there are occasions when it has to. I remind the House that in 1997 I proposed an amendment to have a national register of firearms on a computerised system. For 10 years, the department played “Yes Minister” in order not to get it. Fortunately, every Minister during that time on both sides did their best to get it done and, eventually, it was put into practice. It is now working extremely well. When the noble Lord, Lord Corbett, who was then chairman of the Home Affairs Committee in another place, called the Permanent Secretary to the Home Office to ask why this proposal, which had been enacted, had not been carried forward, he was told, “It was never our idea—it was Lord Marlesford’s idea. We have our own views”. The noble Lord said, “But it’s law”. Anyway, the Home Office did it eventually.

I am sorry that my noble friend Lord Wallace does not feel inclined to take a slightly more positive view than he has done. I am glad that we will have a debate on 1 July, and I hope that noble Lords will come and take part in it—and I look forward to bringing back the amendment at Report. Meanwhile, I beg leave to withdraw it.