Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill Written Evidence

Memorandum by Professor David Feldman (Ev 66)

1. I am asked to give an opinion on the following matters:

human-rights implications of a proposal by the Clerk of the House of Commons and the Serjeant at Arms for a ban on permanent and overnight protests outside Parliament;

human-rights implications of a proposal by the Serjeant at Arms and Black Rod for a ban on all forms of protest along the strip of pavement running parallel to the main entrances of the Houses of Parliament and Portcullis House in order to ensure access to those entrances;

the control of noise, particularly human-rights implications of (i) adequacy of powers of the police to control noise in light of the proposal to repeal sections 134 and 137 of the 2005 Act in so far as they concern unauthorized use of loudspeakers and powers to impose conditions as to the maximum level of noise permitted to a demonstration, (ii) a possible power to confiscate loudspeakers, and (iii) the adequacy of other powers to control noise;

the extent of powers of constables to arrest people without a warrant;

the human-rights compatibility of a power proposed in clause 13 of the Draft Bill that would allow the Attorney General to direct prosecutors to discontinue proceedings on grounds of a threat to national security.

A. BANNING PERMANENT AND OVERNIGHT PROTESTS OUTSIDE PARLIAMENT

2. The Clerk of the House of Commons and the Serjeant at Arms propose a ban on permanent and overnight protests outside Parliament on grounds that include their appearance, the possibility of their causing difficulties as more pedestrians are attracted to Parliament Square under the World Squares proposals, and the security threat that they cause.

3. Any such provision would infringe the right to freedom of expression and the right to freedom of assembly under Articles 10 and 11 respectively of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR).[14] Such infringements may be justifiable if they are prescribed by law and necessary in a democratic society for one of the purposes listed in Article 10.2 (in the case of freedom of expression) and Article 11.2 (in the case of freedom of assembly).

4. To be prescribed by law, a restriction must be contained in positive legal provisions that are sufficiently accessible and certain to allow people to know when they are liable to have their rights restricted. There must be considerable doubt as to whether Sessional Orders provide a sufficiently solid legal basis for a restriction to be "prescribed by law" for the purpose of the ECHR, bearing in mind the uncertainty as to the legal status of such Orders and the territorial extent of their authority. In my view, it would be sensible not to rely on Sessional Orders to impose restrictions; any restrictions should be imposed by ordinary legislation.

5. To be necessary in a democratic society for one of the specified purposes, a restriction must be a proportionate response to a pressing social need to take action to achieve the purpose.

6. The question is whether a ban on all permanent and overnight protests would satisfy those criteria.

7. The purposes to be advanced by such a ban are said to be (a) ensuring free access for Members to each House and (b) controlling excessive noise that would disrupt the workings of Parliament.[15] In a democratic society, there is a clear interest in ensuring that Members of each House can secure access to their respective Houses and conduct their political business once there. Measures to allow them to do so would fall within the legitimate purpose of protecting their rights (and freedoms).

8. I have doubts, however, as to whether a ban on all permanent and overnight protests outside Parliament would be proportionate to that purpose. Such a ban would not be particularly focused on the places and times at which a protest is likely to impede Members' access to their respective Houses or to give rise to noise at a level that would be likely to disrupt the work of either House. In view of the reduced incidence of all-night sittings since the reforms to House of Commons procedures, there seems to be no rational link between the proposed ban on overnight protests and the purposes which might justify it in human-rights terms. The proposed ban on permanent protests seems to me to suffer from a similar problem: there appears to be no evidence that a permanent protest is disrupting, or is likely to disrupt, the efforts of the two Houses of Parliament and their Members to exercise their democratic functions.

9. The requirement of proportionality carries within it a requirement that a measure restricting a right should be rationally related to (ie likely to facilitate the achievement of) a permitted purpose under Article 10.2 and Article 11.2, and should not intrude on the right more than necessary to achieve that goal. If the rationale for the proposal is to secure access for Members to the parliamentary estate and to prevent disruptive levels of noise penetrating the buildings, measures should be tailored to those purposes. As the Joint Committee on Human Rights pointed out when considering the Bill that became the 2005 Act, there is no justification in Article 10 or Article 11 for restricting freedom of expression or assembly in order to improve, for example, the visual amenity of the area; the same applies to measures to make the aesthetic experience of tourists more pleasant. To the extent that the proposal restricts freedom of expression and freedom of assembly and goes further than necessary to protect Members' rights by securing access for Members and preventing levels of noise that are likely to disrupt their work, the proposal seems to me to give rise to a significant risk of incompatibility with Convention rights.

10. In evidence to the Committee, Mr Chris Allison, Deputy Assistant Commission of the Metropolitan Police Service, indicated that there are other reasons (apart from disruption to access for Members and disruptive levels of noise) for wanting some controls over protestors in the vicinity of Parliament. In particular, Mr Allison drew attention to the possible threat to security if a person has an installation so extensive that he or she has no control over it or knowledge of what other people have put into it (QQ 303, 318, 321), or threat to public safety from burning flags (Q 311). It would be legitimate to interfere with rights under Articles 10.2 and 11.2 in the interest of public safety and, perhaps, for the prevention of crime. Two points should be noted in this context. First, Mr Allison considered that such risks could be adequately countered by a power to impose conditions on protestors. Secondly, a person imposing conditions can ensure that they are tailored to the foreseen threat and are proportionate and rationally related to the nature and scale of that threat.

11. The implication of this for the proposal for a ban on overnight demonstrations is that such a ban would be difficult to defend on human-rights grounds. When the Metropolitan Police Service is able adequately to secure public safety and, presumably, the rights of others by imposing conditions on demonstrations, it seems to me to be very possible that a court, in this country or in Strasbourg, would consider a ban on all overnight and permanent demonstrations to be disproportionate and so not necessary in a democratic society.

B. BANNING ALL FORMS OF PROTESTS ON PAVEMENTS PARALLEL TO MAIN ENTRANCES OF PARLIAMENT AND PORTCULLIS HOUSE

12. The same principles govern the human-rights assessment of the proposal to ban all forms of protests on pavements parallel to the main entrances to the Palace of Westminster and Portcullis House (and, presumably, other buildings in which Committees of either House may sit, such as 2 Millbank) in order to ensure access to those entrances.[16]

13. If there is evidence that any protest on the pavements parallel to those entrances to buildings unreasonably impedes Members in getting access to the buildings or gives rise to noise of a level that is likely to disrupt the work of Parliament, a blanket ban on processions would certainly be proportionate and serve a legitimate purpose. A problem arises if there is no such evidence, or if disruption occurs only when some kinds of protests take place. In these circumstances it would be more difficult to show that a blanket ban was proportionate to a pressing social need to take action (ie was necessary in a democratic society).

14. The difficulty is that justifying an interference with a human right requires consideration, usually on a case-by-case basis, of the extent of the interference and the weight of the factors advanced by way of justification. A bright-line rule, such as a total ban on protests, is particularly likely to violate rights because it prevents context-sensitive assessment on a case-by-case basis of the impact of the restriction on a proposed assembly or demonstration.

15. Nevertheless, it might be justifiable to introduce a blanket ban on protests at certain points on the pavements parallel to entrances to buildings as being a justifiable interference with rights under Articles 10 and 11 if (i) the areas of pavement affected were carefully selected by reference to the need to maintain access to buildings and (ii) there were sufficient areas remaining in the vicinity where protests could take place to ensure that the ban on parts of pavements did not deprive protestors of the essence of the rights to freedom of assembly and expression. By contrast, if it were to appear that the designated pavements were insufficiently closely related to the need to maintain access to the buildings, or that there was no real need for the ban in order to secure access (giving rise to an inference that the ban had an ulterior and, in human-rights terms, insufficient purpose such as improving the visual amenity of the area), the ban would be unlikely, in my view, to be justifiable under Articles 10 and 11.

C. CONTROLLING NOISE

16. There are different views about the adequacy of existing powers to control noise. Section 134(4)(f) of the Serious Organised Crime and Police Act 2005 allows an authorization of a demonstration in the designated area based on Parliament Square to include a condition as to maximum noise levels, and section 137 makes it unlawful to operate a loudspeaker in a street in the designated area without authority. If those sections were to be repealed, it would be necessary to consider whether other statutory provisions confer adequate power to control noise and, if not, whether it would be necessary and appropriate to introduce new legislation.

17. It is noteworthy that there are great practical difficulties in setting noise levels and in measuring them (QQ 337, 338). It is also correct to point out that there are some limitations on powers of arrest that can make it difficult for the police to take effective action against unauthorized use of loudspeakers, especially as there is no power to seize a loudspeaker that is being used without authority. The significance of this in human-rights terms is limited, however, as the evidence is that at least some loudspeaker equipment does not produce a noise loud enough to avoid being drowned by traffic noise (Q 338), so it would be hard to show that preventing the use of loudspeakers is, as a general rule, a proportionate way of protecting public safety or the rights of others.

18. If sections 334 and 337 of the 2005 Act were to be repealed, some people consider that the police would have adequate powers under other enactments to deal with noise that reaches a sufficiently disruptive level to justify interfering with Convention rights. One of these is the power in section 14 of the Public Order Act 1986 to impose conditions on an assembly (ie two or more people) that is causing or is likely to cause serious disruption to the life of the community. On the other hand, it is correct to point out that there is no power (apart from that under the 2005 Act) to impose a noise-limiting condition on a lone, very noisy demonstrator. If a single member of an assembly were to make excessive noise, a condition imposed on the assembly as a whole would bind the noise-maker, who would commit an offence were he or she to disobey the conditions: section 14(5) of the 1986 Act; but a condition could be imposed only if there were likely to be serious disruption to the life of the community. Noise will rarely amount to serious public disorder, serious damage to property or serious disruption to the life of a community (as Mr Allison pointed out in evidence: QQ 326-330); whilst in the past courts have been prepared to allow considerable leeway to police officers' judgement as to whether the criteria for imposing conditions under section 14 have been satisfied, they are now, in the light of the Human Rights Act 1998, beginning to insist on reasons being given for officers' decisions on those matters,[17] and are becoming more rigorous in scrutinizing decisions and the reasons for them against human-rights standards in public-order policing.[18] It would therefore be wrong to assume that section 14 of the 1986 Act could do the job that is currently done by sections 134 and 137 of the 2005 Act.

19. One way of dealing with a lone demonstrator might be to charge him or her with the offence of using threatening, abusive or insulting words or behaviour within the hearing of a person likely to be caused harassment, alarm or distress thereby (section 5 of the Public Order Act 1986). However, the words or behaviour might not be threatening, abusive or insulting: it is the disruptive volume rather than the content or manner of the expression that is the cause for concern here. Furthermore, it is not always easy to establish that someone was subjected to harassment, alarm or distress, as Mr Allison pointed out (Q 343), and where a person is advancing political views it may be a disproportionate and hence unlawful interference with his or her right to freedom of expression to bring proceedings at all.[19]

20. It seems to me, therefore, that, if it is thought that some control over noise is needed, the Public Order Act 1986 would not provide a reliable or comprehensive means of providing it. I have no expertise in the general law relating to noise pollution, and so will not consider that matter, which was explained by Mr Allison and by Mr Dean Ingledew in oral evidence (QQ 337, 338, 342).

21. I am asked for a view as to the human-rights implications, if the relevant provisions of the 2005 Act were to be repealed, of retaining a ban on the unauthorised use of loudspeakers and a power for the police to impose conditions on the maximum permissible noise level of demonstrations.

22. I refer to the principles outlined in paragraphs 3 to 5 above, which are applicable here.

23. In relation to the use of loudspeakers, there is, in my view, a necessary implication in Article 10 of the ECHR that, in imparting information and ideas, one is entitled to use mechanisms to ensure that one is heard above the hubbub. It is strange to require authorisation to be given for use of a loudspeaker at a demonstration, and I find it hard to take seriously the suggestion that it would be necessary and proportionate in pursuit of a permissible objective under Article 10.2 to prohibit the use of loudspeakers save in extraordinary circumstances. There may be legitimate reasons for regulating the type of loudspeaker that can be used in public or the volume at which it can be used. For example, it might be necessary to impose limits to protect people's hearing against damage, or to allow them to go about their work without having their own speech drowned out by mechanically assisted speech. Such regulation would be legitimate to protect health and the rights of others. However, a blanket ban on the use of loudspeakers at demonstrations, or a power to ban their use, would face problems in relation to the proportionality of and necessity for the interference with freedom of expression.

24. A power to fix a maximum noise level for a demonstration would be a great deal easier to justify in human-rights terms and would, in my view, present no serious legal difficulty, although as noted above the practical difficulties involved both in selecting an appropriate level and in policing it would be considerable.

25. A power to confiscate loudspeakers that are being used unlawfully has been suggested. As noted above, the right to freedom of expression can carry with it a right to impart and receive information and ideas by means of a loudspeaker. Assuming that the unlawfulness stemmed from the use of a loudspeaker without authorisation, the compatibility of a power to confiscate the loudspeaker with the right to freedom of expression would, in my view, depend on whether the refusal of or failure to grant authorisation to use the loudspeaker was justified on the facts of the case as a proportionate response to a pressing social need to pursue a permitted objective under Article 10.2 of the ECHR. When making this assessment, it would be relevant to consider the strength of the evidence for claiming that measures short of prohibiting the use of the loudspeaker would have been likely in the particular case to be insufficient to avert a harm falling within Article 10.2.

26. Confiscating the loudspeaker would be likely to interfere with the right to property under Article 1 of Protocol No. 1 to the ECHR, but it would often be possible to justify the interference and I do not anticipate serious problems under that Article. A confiscation would also be likely to interfere with the civil rights (in this case, property and possession rights) of the person who owns or was in possession of the loudspeaker. It would be necessary to allow the aggrieved person to test the legality of the confiscation before an independent and impartial tribunal (ideally a court) in order to comply with the fair-trial requirements of Article 6.1 of the ECHR.

D. ARREST WITHOUT WARRANT

27. I am asked for my view as to whether, after the amendments made by the 2005 Act to section 24 of the Police and Criminal Evidence Act 1984, a constable can no longer arrest without a warrant an individual who is committing a minor public-order offence, such as using an unauthorised loudspeaker, if the constable knows the person and so would be able to serve a summons on him or her.

28. The form in which the question is put is based on a misconception. Before the amendments made by the 2005 Act took effect, the position was as follows.

A constable was allowed to arrest, without a warrant, a person whom the constable suspected on reasonable grounds to be about to commit, in the act of committing or have committed an "arrestable offence", ie an offence for which the sentence was fixed by law (murder) or which carried a maximum sentence of imprisonment for five years or more. This had been the position since 1967, and reflected the belief that it was not appropriate to deprive a person of his or her liberty, a fundamentally important interest, unless there were good grounds for suspecting that person of a serious criminal offence. However, there was no test of necessity to justify the arrest; an arrest for an arrestable offence would be lawful unless it was unreasonable.

Since 1 January 1986 (when section 25 of the Police and Criminal Evidence Act 1984 came into force) a constable had also had power to arrest without a warrant a person who was suspected of committing a less serious offence if the constable did not know who the person was or where he or she lived. This was a special provision designed to overcome the problem arising where a suspect gave a false name and address and could not be tracked down later, frustrating efforts to serve a summons.

Numerous statutory provisions creating less serious offences contained individual powers to arrest without warrant. These powers were subject only to an unreasonableness test for the lawfulness of their exercise until 2 October 2000.

On 2 October 2000 the Human Rights Act 1998 came into force. Thenceforth a constable, as a public authority for the purpose of the Act, would act unlawfully if he or she exercised a power of arrest in circumstances where the arrest violated a person's Convention rights, including the right to liberty under Article 5 of the ECHR and the rights to freedom of expression and freedom of assembly under Articles 10 and 11. These safeguards supplemented those in the various statutory provisions authorising arrest, and called for the exercise of judgement by both constables and reviewing courts.

29. The effect of the 2005 Act on powers of arrest (and other investigatory powers, such as search of premises and seizure of property) was to abolish the distinction between arrestable and non-arrestable offences, and to allow the powers to be exercised in respect of all offences, however minor. However, recognising that this would authorise a very serious interference with a very important right—the right to liberty—and that such interference needed to be justified by reference to a compelling social need, the Act provided that the power to arrest could be exercised only in specified circumstances, designed to ensure that the arrest would be a proportionate way of achieving one of the purposes regarded as justifiable by Article 5.1 of the ECHR, particularly securing the fulfilment of an obligation imposed by law, the lawful arrest or detention of a person effected for the purpose of bringing him or her before a competent legal authority on suspicion of having committed an offence, or when it is reasonably considered necessary to prevent the person committing an offence or fleeing after having done so. Other grounds for arresting are concerned with the obligation of the police under Articles 2 and 3 of the ECHR to take reasonable steps to protect the life and health of people at risk (including those at risk from themselves).

30. This short historical account shows that it would have been open to the drafters of the 2005 Act to attach a power of arrest to the offence of operating a loudspeaker without authorisation, subject to any necessary restrictions to accommodate justifications for interfering with the right to freedom of expression. The drafters did not do so, and the Bill was not amended in this respect in either House. Nevertheless, the powers of constables in this regard are wider than they would have been before the amendments made by the 2005 Act to powers of arrest: there is now a power to arrest without warrant for very minor offences of this kind, but the power is very properly limited to ensure that it is used to interfere with people's fundamental rights only when necessary to achieve purposes justified under the relevant Articles of the ECHR. It is mistaken to suggest that the 2005 Act limited powers of arrest in respect of very minor offences. It considerably extended them, but subject to conditions.

31. In view of the conditions imposed by the 2005 Act on the power of the police to arrest for very minor offences I am asked whether, in my view, it would be appropriate to extend current police powers of arrest or to review powers of arrest in the near future. This is a matter that calls for political judgement, but it seems to me that judgement needs to be informed by the following considerations.

32. First, the power to arrest without a warrant for very minor offences has already been extended very widely by the 2005 Act. (By contrast, it is arguable that the power to arrest for very serious offences has been subjected to some increased safeguards for rights.) It seems to me to be questionable whether we should be continuing to extend coercive powers in respect of very minor offences, particularly considering the huge expansion in the number of such offences over the past two decades.

33. Secondly, suggestions for extensions need to be examined particularly critically where they would be aimed at people exercising a fundamental democratic right to assemble peacefully and impart information and ideas on political matters. Bearing in mind that many people have limited access to other means of communicating information and ideas to a mass audience, given for example that the Communications Act 2003 maintains a total prohibition on political advertising on radio and television, that private owners of print media have no obligation to allow proponents of ideas opposed to their own to publish in their outlets, and that some points of view are effectively excluded from broadcast media on grounds of taste, public assemblies and loudspeakers continue to serve a very important political function in our democracy.

34. Thirdly, the limited evidence I have seen does not seem to me to make a strong case for establishing a pressing social need for this sort of action in pursuit of any legitimate aim under Article 10.2 or Article 11.2 of the ECHR. There might be much evidence which I have not seen, but in my view, as at present advised, the idea that there is a pressing social need to extend police powers for this purpose in order to secure a legitimate aim falls somewhere on the scale between unpersuasive and fanciful.

E. DIRECTIONS BY ATTORNEY GENERAL TO DISCONTINUE INVESTIGATIONS OR PROSECUTIONS ON GROUNDS OF NATIONAL SECURITY

35. Clause 12 of the Draft Constitutional Renewal Bill would give power to the Attorney General to direct the Director of the Serious Fraud Office not to investigate specified matters in England and Wales, and to direct prosecutors not to bring proceedings or to discontinue proceedings in respect of a specified matter or offence, where the Attorney is satisfied that it is necessary to do so for the purpose of safeguarding national security. If in any proceedings a question arises as to whether the direction is or was necessary for the purpose of safeguarding national security, clause 13(5) would allow any Minister to issue a certificate that would have to be taken as conclusive evidence that the direction was so necessary.

36. I am asked whether the power to issue a direction would be capable of being reviewed in the courts (a) generally, and (b) if a certificate were issued, and whether ouster of judicial review would be vulnerable to a declaration of incompatibility under section 4 of the Human Rights Act 1998.

37. The answer to the general question is that the direction should, in my view, in principle be amenable to judicial review in the same way as any other exercise of statutory power by a public body. The discretion of a prosecuting authority to continue a prosecution inconsistently with a settled policy developed by the Director of Public Prosecutions in the public interest or otherwise unreasonably is reviewable.[20] A decision of the DPP not to say before an offence is committed that the potential perpetrator would not be prosecuted was rejected on the merits but not, apparently, on the ground that the court had no power to review.[21] The jurisdiction to review a decision relating to prosecution is exceptional, and courts have been reluctant to engage in it.[22] However, very recently, the Administrative Court has reviewed a decision of the Director of the Serious Fraud Office to discontinue an investigation into alleged bribery because of claims that continuing the investigation would prejudice national security.[23] Clauses 12 and 13 of the Bill appear to be a direct attempt to head off future challenges of that kind.

38. In some cases in the past the fact that a decision has been taken by the Attorney General rather than a statutory decision-maker has been treated as conferring a presumptive immunity from review, as the Attorney exercises common-law or prerogative powers in the public interest and is accountable to Parliament for the exercise of those powers.[24] However, since the House of Lords held in Council of Civil Service Unions v. Minister for the Civil Service[25] that reviewability depends on the public-law nature of a power rather than the source of it, so that prerogative powers could be reviewed unless there was a good reason for not doing so, there is no reason to exempt decisions by the Attorney from review in suitable cases. In any case, the power under clause 12 would be a statutory power rather than a prerogative power, reinforcing the desirability of maintaining review of it to uphold rule-of-law principles.

39. If there were to be a ministerial certificate under clause 13(5), would it make review impossible? That would depend on the approach of the courts to the certificate. The certificate seems to me to be similar in nature and purpose to a public interest immunity certificate. The courts have held that they can satisfy themselves that such certificates have been properly issued. If there is evidence of improper purpose or of an attempt to mislead the court, a court can disregard the certificate, as in the trial of directors of Matrix Churchill on charges relating to the export of dual-use equipment to Iraq. However, there will rarely be such evidence.

40. Would the use of a certificate to cut off judicial review of the Attorney's direction violate human rights? In principle, a certificate is capable of depriving litigants of the right to a fair and public hearing before an independent and impartial tribunal for the determination of criminal charges or civil rights or obligations.[26] However, for there to be a violation of that right there must be a victim of the violation. In a case like that involving the discontinuance of the investigation into allegations of bribery, the only person whose criminal charge or civil right or obligation would be determined will be the potential defendant in criminal proceedings, and it is hard to see how he or she could be regarded as a victim of a violation of his or her right as a result of a decision by the Attorney to direct the discontinuance of an investigation or prosecution. If the offence involved harm to a person giving rise to a risk of death or degrading treatment or infringement of other rights, the victim could claim to have a genuine interest in seeing the case come to trial, and might suffer a violation of the right to life or to be free of degrading treatment if the state failed to prosecute the suspected offender. However, that would give rise to a separate cause of action against the Attorney General, potentially sounding in damages. In my opinion, it would not give rise to a violation of Article 6 of the ECHR unless the victim were to be prevented in some way from claiming for violation of another right, and the more appropriate basis of challenge to such a step would be to rely on the right to an effective remedy for violation of a Convention right under Article 13 of the ECHR, not to claim a violation of Article 6. Article 13 has not been made actionable in the courts of England and Wales: it is not one of the Convention rights covered by the Human Rights Act 1998.

41. In my view, it is therefore very unlikely that the use of the certificate under clause 13(5) would give rise to a declaration of incompatibility under section 4 of the Human Rights Act 1998.

July 2008