Supplementary memorandum by the Minister
of State (Ev 79)
When giving evidence to the Joint Committee
on repeal of sections 132-138 of the Serious Organised Crime and
Police Act 2005 (SOCPA) on 17 June, I gave an undertaking to respond
in writing to the evidence of the House Authorities, and to look
at the Police and Criminal Evidence Act to see if more could be
done about addressing the issue of police powers to stop noise
nuisance associated with demonstrations.
Before commenting in detail on the House Authorities'
evidence I would like to reiterate the Government's commitment,
set out in my oral evidence to the Committee, to work with the
House Authorities—as well as members of Parliament and Peers—to
establish what, if anything, is necessary to secure the proper
operation of Parliament in terms of managing access and noise.
I also refer the Joint Committee to the memorandum
provided to the Committee setting out the main relevant legislation
that would apply to policing protests around Parliament were SOCPA
repealed (Ev 57).
ACCESS
The oral evidence from the House Authorities
is helpful in clarifying what they think is required in terms
of the areas that need to be secured to guarantee access. And
I would agree with them that if special provision is required
it should apply to a much smaller area than that currently set
out in SOCPA.
The House Authorities' position that special
provision is needed has to be balanced against the point repeatedly
made by respondents to our Consultation, and the point teased
out by Lord Norton in the House Authorities' evidence session,
which is what distinguishes Parliament from other public buildings?
It seems that this is the key question that needs to run through
consideration of the issue of managing protest around Parliament.
Evidence from the House Authorities mentioned
the sheer volume of visitors to Parliament Square. I am not sure
footfall is grounds enough for a distinct regime; a more powerful
argument, submitted in the House Authorities evidence, is the
need to secure Parliament's exercise of its sovereign functions.
I do not necessarily think this means that different
regimes should apply at different times depending on whether the
House is in session. The argument for one system which provides
clarity for police, protestors and users of Parliament about the
boundaries of lawful protest, put forward by the House Authorities
and the police, is a strong one. This could be achieved through,
for example, a simple power for police to impose conditions on
demonstrations to prevent obstruction of access to Parliament.
Such a power would be far more proportionate,
and I think acceptable, than the idea of an exclusion zone advanced
by the House Authorities. An exclusion zone in effect amounts
to a ban on demonstrations in a certain area which is far more
draconian than anything in SOCPA. Two people conducting themselves
peacefully at carriage gates would not impact on access; two hundred
people could.
There is of course the wider issue on whether
the police already have the powers to secure access. Again, I
would agree with the House Authorities that Sessional Orders are
not a source of legal authority for the control of access to Parliament—they
are a statement of the House's expectations on the Commissioner
and do not confer any powers on the police. However the Metropolitan
Police Act 1839, I think, does provide relevant powers when considered
alongside powers to prevent unlawful obstruction of the highway.
NOISE
The issue of noise is more complicated but it
is important not to lose sight of the issue continually raised
in responses to our consultation of what is special about Parliament?
Again we will listen to House Authorities, and to MPs and Peers
on whether noise really does disrupt the business of the House
or whether it is simply an annoyance.
I do think that generally evidence to the Committee
has confused offences with police powers of arrest to prevent
or stop a person committing those offences. This applies to noise
in particular. Section 137 of SOCAP creates a very explicit offence
of using a loudspeaker within the designated area around Parliament
(subject to a number of exceptions). But the existence of that
offence has not been effective in dealing with the House Authorities'
concerns about noise since SOCPA was introduced.
What I think the House Authorities are concerned
about is not so much the absence of an offence, but that the police
do not have a power of arrest (in certain circumstances) if people
persist in using the loudhailer. This centres on the far wider
issue of the purpose of an arrest power which I will deal with
separately under our proposed review of PACE.
Repeal of section 137 will remove the general
offence for using a loudspeaker in a designated area. However,
if action involving use of a loudhailer amounted to harassment,
alarm or distress then the police may consider that an offence
under section 5 the Public Order Act 1986 had been committed.
And of course bye-laws pertaining to noise would also continue
to apply.
Lord Armstrong raised the issue of civil injunctions
in respect of noise. All I would say in that regard is that the
University of Oxford has taken out injunctions which relate to
use of loudspeakers which have worked well.
PERMANENT DEMONSTRATIONS
On the issue permanent demonstrations, I would
argue that it is not the permanence per se that is a potential
issue, but rather the paraphernalia associated with a particular
permanent demonstration. So to disagree slightly with the House
Authorities' evidence, it is not a permanent or overnight demonstration
that causes a security concern but rather the presence of semi-permanent
structures in the immediate vicinity of Parliament. The question
then is should semi-permanent structures be permitted as opposed
to should permanent demonstrations be permitted? My position is
that there are adequate bye-laws to deal with encampments, and
that as a point of principle demonstrations should not be limited
simply on the basis of their duration. Quite apart from ECHR concerns,
from a practical policing perspective I am not sure how a series
of consecutive temporary demonstrations that amounted to a permanent
demonstration could be prevented.
And we again have to address the central issue
that runs through this exercise—why should the position
in Parliament Square be different with regards to permanent demonstrations
than anywhere else in the UK?
NOTIFICATION
The House Authorities consider that prior notification
would be helpful to allow the police to plan more effectively
for demonstrations around Parliament. The Government looked at
this option in considering responses to our Consultation and the
majority view was that prior notification could not be justified
around Parliament.
The corollary of having a compulsory notification
system is that you create an offence for protesting without notification
thereby potentially criminalising protest. Once again we need
to be conscious that the central aim of this Bill is the reinvigoration
of democracy.
Evidence to the Committee has noted that it
is in everyone's interest to notify in advance—protestors,
police and public. Working with police and campaign groups to
promote the advantages of advance notification, and pursuing a
voluntary notification scheme, would seem to strike the right
balance.
There is of course the additional safeguard
that a prior notification system would continue to exist for the
garden area of Parliament Square under GLA byelaws—as for
Trafalgar Square. This would allow advance planning for any large
demonstration which would necessarily encroach on the garden.
The Committee will want to note that under the
Public Order Act 1986 the number of people that constituted a
publc assembly on which, in certain circumstances, conditions
can be imposed was formerly 20. Protest groups made a point of
demonstrating in groups of 19 to get around this limitation and
as a result the Government reduced the number of people who constitute
a public assembly in the Public Order Act to 2.
Those groups who want to work with the police
will voluntarily notify. Those groups who don't want to work with
the police could easily work around such a restriction on numbers
by claiming, if the limit for notification was 20 people, that
they constituted say five different protests of 19 people.
There is a risk that a prior notification scheme
of any sort is likely to increase the numbers of protestors unwilling
to work with the police so that the provision becomes counter-productive.
POWERS OF
ARREST
To return to the issue of arrest powers, I think
it is important to be clear about the purpose of arrest powers:
Under PACE a lawful arrest requires two elements:
— A person's involvement, suspected
involvement or attempted involvement in the commission of a criminal
offence.
— Reasonable grounds for believing
that the person's arrest is necessary. Under s24(5) PACE.
The necessity criteria is set out in paragraph
2.9 of the PACE Code of Practice on arrest.
The criteria provides for arrest in order to
enable the prompt and effective investigation of the offence or
of the conduct of the person, to prevent the person or others
suffering harm or property being damaged, to enable the person's
name and/ or address to be ascertained and to protect a child
or other vulnerable person.
In applying the criteria, the arresting officer
has to be satisfied that at least one of the reasons supporting
the need for arrest is satisfied.
Paragraph 1.3 of PACE Code G also states that
"the use of the power must be fully justified and officers
exercising the power should consider if the necessary objectives
can be met by other, less intrusive means. Arrest must never be
used simply because it can be used.
The issue of so called "ongoing offences"
has been raised in the current PACE Review. There is confusion
around whether an officer can apply the arrest powers where an
individual continues or persists with the breach after an officer
has issued a warning.
Whilst we believe that the officer can exercise
his or her power of arrest, we intend to remove that confusion
by putting forward proposals as part of the PACE Review consultation
paper that the necessity criteria includes dealing with person
who failed to comply with a request or warning by a constable.
This should directly address a number of the concerns raised in
the evidence sessions to the Committee.
Rt Hon Tony McNulty MP
July 2008
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