CONCLUSIONS AND RECOMMENDATIONS
1. The
evidence we received inevitably focused on some of the largest
and most controversial protests, which are the most difficult
events to police. However, we also received evidence from some
small longstanding protest groups. We were struck by the accounts
of the use of a wide range of police powers against protestors
and others involved with protest - such as journalists - as well
as the significant mismatch between the perceptions of protestors
and the police about the way in which protest is managed. These
factors could serve to diminish, rather than facilitate, protest
and also risk encouraging conflict rather than co-operation between
protestors and the police. In addition to its positive duty,
the state is required not to restrict protests unless it is justified
as being both necessary and proportionate to do so in pursuance
of a legitimate aim: this is a high threshold. Whilst protests
may be disruptive or inconvenient, the presumption should be in
favour of protests taking place without state interference, unless
compelling evidence can be provided of legitimate reasons for
any restrictions and those restrictions go no further than is
strictly necessary to achieve their aim. (Paragraph 66)
2. There
is a clear need for the rights of those protested against - however
unpopular their own cause may be - to be safeguarded such that
they are able to go about their lawful business and that their
own rights to free expression are not disregarded by those responsible
for policing protests. There is some evidence that the police
do not always get this balance right, perhaps by failing to identify
the fundamental liberties at stake. (Paragraph 67)
3. In
the past, there were good reasons for maintaining a strict distinction
between private and public space, insofar as protests were or
were not permitted. However, given the increasing privatisation
of ostensibly public space, such as shopping centres, we consider
that the situation has changed. Where preventing protest on private
land to which the public routinely has access would effectively
deprive individuals of their right to peaceful protest, the Government
should consider the position of quasi-public spaces to ensure
that the right to protest is preserved. (Paragraph 68)
4. We
agree with the Minister that there needs to be greater clarity
about how broad police powers are used. However, in our view,
the better approach is to draft legislation itself in sufficiently
precise terms so as to constrain and guide police discretion,
rather than to rely on decision makers to exercise a broad discretion
compatibly with human rights. (Paragraph 76)
5. Section
5 of the Public Order Act gives the police a wide discretion to
decide what language or behaviour is "threatening, abusive
or insulting". Whilst arresting a protestor for using "threatening
or abusive" speech may, depending on the circumstances, be
a proportionate response, we do not think that language or behaviour
which is merely "insulting" should ever be criminalised
in this way. Whilst we welcome the Minister's agreement to discuss
the examples we raised with ACPO in order to see whether guidance
or support to police officers would improve matters, we do not
consider that improving guidance will be sufficient to address
our concern. We recommend that the Government amend section 5
of the Public Order Act 1986 so that it cannot be used inappropriately
to suppress the right to free speech, by deleting the reference
to language or behaviour that is merely "insulting."
This amendment would provide proportionate protection to individuals'
right to free speech, whilst continuing to protect people from
threatening or abusive speech. We suggest such an amendment.
(Paragraph 85)
6. Whilst
we accept that there may be circumstances where the police reasonably
believe, on the basis of intelligence, that a demonstration could
be used to mask a terrorist attack or be a target of terrorism,
we have heard of no examples of this issue arising in practice.
We are concerned by the reports we have received of police using
counter-terrorism powers on peaceful protestors. It is not clear
to us whether this stems from a deliberate decision by the police
to use a legal tool which they now have or if individual officers
are exercising their discretion inappropriately. Whatever the
reason, this is a matter of concern. We welcome the Minister's
comments that counter-terrorism legislation should not be used
to deal with public order or protests. We also welcome the recommendation
in the new guidance to human rights being included in community
impact assessments. We recommend that the new guidance on the
use of the section 44 stop and search power be amended to make
clear that counter-terrorism powers should not be used against
peaceful protestors. In addition, the guidance should make specific
reference to the duty of police to act compatibly with human rights,
including, for example, by specifying the human rights engaged
by protest. (Paragraph 93)
7. We
therefore recommend that, to eliminate any scope for doubt about
the scope of the new offence in section 76 of the Counter Terrorism
Act 2008, guidance be issued to the police about the scope of
the offence in light of the decision of the Court of Appeal, and
specifically addressing concerns about its improper use to prevent
photographing or filming police. (Paragraph 95)
8. We
appreciate that injunctions bring benefits to those who have experienced
violent and intimidatory protest, especially at their homes. However,
we are concerned that the Protection from Harassment Act 1997
(which was not designed to deal with protestors, but has developed
over time to encompass this area of activity) has the potential
for overbroad and disproportionate application. We do not consider
that, in the usual course of events, there is any pressing need
for applications against protestors to be made without providing
the possibility for protestors to make representations on the
proposed injunction. This is particularly so given the potential
risk of substantial costs faced by protestors who seek to amend
or revoke an injunction once it has been granted. (Paragraph 99)
9. We
recommend that the Government reverse the presumption that hearings
for protection from harassment injunctions are held in private,
where they relate to the activities of protestors. Practice Direction
39 to the Civil Procedure Rules should be amended to make clear
that applications for injunctions relating to protests are not
covered by paragraph 1.5. In addition, and applying the same
reasoning, we recommend that Practice Direction 25 be amended
to ensure that applications for injunctions relating to protest
activities may not be made without notice being given to any individuals
or organisations named on the application. These recommendations
will assist the courts in ensuring that injunctions against protestors
are necessary and proportionate within the context of the rights
to freedom of speech and peaceful assembly. (Paragraph 100)
10. Many
of the concerns which we expressed during the passage of the Bill
which became the Serious Organised Crime and Police Act 2005 have
been borne out in practice: we do not have confidence that section
128 has been implemented in a manner compatible with Convention
rights, or that appropriate safeguards are in place to secure
compatibility. We recommend that section 128(3)(c) be amended
to permit the Home Secretary to designate sites on the grounds
of national security only where it is necessary to do so. We
suggest an amendment to section 128. (Paragraph 108)
11. We
recommend that the police should be proactive in using the existing
criminal law to prosecute protestors who are carrying out threatening
or abusive protest via the internet. Further, we recommend that
the Home Office review the existing law to ensure that it adequately
protects both the rights of protestors and those who are targeted
by such protests. (Paragraph 109)
12. Measures
for dealing with protest around Parliament must comply with the
European Convention on Human Rights, including the need for the
law to be predictable and certain so as not to be arbitrary. (Paragraph
125)
13. In
our view, the maintenance of access to Parliament is a persuasive
reason to restrict the rights to protest and to freedom of assembly
within the areas directly around the Palace of Westminster and
Portcullis House. We also share the view of the parliamentary
authorities that legislation on protest around Parliament should
not differentiate between sitting and non-sitting days, in order
to ensure that there is clarity and legal certainty for Members,
the police and the public, although the way in which protest is
policed should take account of the likely level of disruption
to parliamentary activity. (Paragraph 126)
14. We
share the view expressed by a range of witnesses that the Serious
Organised Crime and Police Act 2005 provisions should be repealed,
principally because they have proved too heavy-handed in practice,
are difficult to police, and lack widespread acceptance by the
public. (Paragraph 127)
15. Advance
notification of protest around Parliament should be encouraged
by the Metropolitan Police, in order to facilitate safe protest,
but should not be a legal requirement and no sanction should apply
to those who choose not to notify the police of their intention
to protest solely by reason of that choice. (Paragraph 128)
16. We
recommend that the parliamentary authorities work with the police
to develop clear conditions which can be imposed on protestors
under the Public Order Act, amended if necessary to achieve this
aim, to ensure that access is maintained at all times. Conditions
might include requiring protestors to keep clear of the vehicular
access points, to permit access to Parliament and to ensure public
safety around the gates. (Paragraph 131)
17. We
recommend that the Home Office, the police, Westminster City Council
and the parliamentary authorities should develop alternative arrangements
to manage noise levels from protest in Parliament Square, including
consideration of whether legislative change is necessary and whether
maximum noise levels should be imposed and enforced effectively.
(Paragraph 133)
18. We
have heard no good argument in favour of introducing an arbitrary
limit on the duration of protests around Parliament, although
we note the potential security concerns associated with the existence
of the camp. We share the view of the Joint Committee on the draft
Constitutional Renewal Bill that the police power in the Serious
Organised Crime and Police Act 2005 to impose conditions relating
to security issues should be continued for the area around Parliament.
We are also concerned to ensure that the existence of long-term
protests does not prevent or deter other people from protesting
in Parliament Square. The police should have the power to impose
conditions on protests in order to facilitate protest by others
- for example, where more than one protest takes place in Parliament
Square on the same day. (Paragraph 134)
19. We
note that the Greater London Authority may consider creating new
byelaws to manage protest in Parliament Square, including to limit
the duration of protests. Given the potential significance of
these new byelaws for the rights to freedom of expression and
assembly, we recommend that section 236A of the Local Government
Act 1972 be amended to set out the framework for balancing relevant
interests. (Paragraph 135)
20. We
recommend that the Greater London Authority involve the police,
Westminster City Council and the parliamentary authorities in
discussions about any new byelaws; and that any new restrictions
on the rights to freedom of assembly and expression are not disproportionate.
(Paragraph 136)
21. We
consider that protest around Parliament should be governed by
the Public Order Act, in particular the police power to impose
conditions on protests under section 14. There is a case, however,
for amending section 14 to deal with the specific circumstances
of Parliament. We recommend that the Public Order Act should be
amended to enable conditions to be placed on static protests where
they seriously impede, or it is likely that they will seriously
impede, access to Parliament. (Paragraph 137)
22. Crucially,
we note that the onus is on the Government to bring forward the
necessary reform which commands the support of the police, the
parliamentary authorities and the local authorities. (Paragraph
139)
23. We
are pleased to hear that the police consider that the Human Rights
Act helps, rather than hinders, effective policing. We also recognise
that police officers have human rights themselves, which the state
is required to protect. We hope that the positive messages about
human rights which we heard from the officers from whom we took
oral evidence are reflected in police forces across the country.
(Paragraph 145)
24. The
police and Home Office, along with other witnesses, are correct
to assert that there is a balance to be struck between the rights
of protestors and others. However, this is only half the story.
Human rights law makes clear that the balance should always fall
in favour of those seeking to assert their right to protest, unless
there is strong evidence for interfering with their right. Inconvenience
or disruption alone are not sufficient reasons for preventing
a protest from taking place, although they may be good reasons
to reroute it or place other conditions upon it. Given the value
of the right to protest, a certain amount of inconvenience or
disruption needs to be tolerated. (Paragraph 148)
25. Officers
at all levels need to be supported in carrying out their legal
and professional duties. Training is vital to ensuring that this
happens. We recommend that human rights training should be integrated
into other training, rather than provided as a discrete component,
and that it should be regular, relevant and up to date. Objective
evidence on the extent to which training in human rights awareness
had been successful would be valuable. We recommend that the Home
Office or ACPO commission independent research into the extent
of police knowledge and awareness of the human rights engaged
by the issue of protest. (Paragraph 156)
26. We
are disappointed by suggestions from some witnesses that resolution
of disputes often depends on those affected taking costly and
time consuming court action against police. Legal action where
officers are in breach of their human rights obligations, whilst
important, is not appropriate to deal with systemic problems nor
a good basis from which to learn lessons for the future. It is
also damaging to future relations between protestors and the police
and does not allow protestors the swift response that may sometimes
be required, if they are to achieve their aim of a timely and
persuasive demonstration. We recommend that the Government develops
a quick and cost free system for resolving complaints and disputes
in advance of protests taking place. (Paragraph 157)
27. Greater
consistency of practice across police forces is, in our view,
essential and could be achieved if debriefing after protests,
to ensure that lessons are learnt, routinely deals with human
rights issues. This would be enhanced by agreeing to engage the
organisers of protests as part of that debriefing. We would encourage
good joint working between forces to facilitate the sharing of
information, intelligence, expertise and resources. Comprehensive
systems need to be put in place within and between forces to ensure
that lessons (both good and bad) are regularly drawn from police
practice and disseminated broadly. (Paragraph 159)
28. As
we have already noted, good leadership from the top of the police
down is vital to ensuring respect for human rights in any policing
operations, including policing protests. This will also help
to ensure consistent good practice across police forces. We recommend
that any officer who is involved, in whatever way, with policing
protests, should have access to accurate and helpful guidance
on how to police compatibly with human rights standards. ACPO
and the Police Federation should give consideration as to how
this can best be achieved, engaging all police officers involved
in this area of police work. (Paragraph 162)
29. Whilst
we recognise that the political and historical situation in England
and Wales is different from that in Northern Ireland, there are
undoubtedly lessons that can be drawn from the Northern Irish
experience of policing contentious protests whilst trying to ensure
respect for human rights. Given the record of the Police Service
of Northern Ireland in policing protest, we recommend that police
forces in England and Wales evaluate the expertise of their legal
advisers to ensure that there is sufficient human rights knowledge
and understanding available to all levels of the police on a daily
basis to help the police avoid human rights breaches. We also
recommend that the Home Office consider whether police contracts
and disciplinary procedures pay sufficient recognition to the
duty of officers to act compatibly with human rights. (Paragraph
169)
30. Having
seen and heard from those working in Northern Ireland about the
positive effect of this duty, we recognise it as a valuable tool
in enhancing human rights compliance by the police. We will
continue to monitor its application and effectiveness, and intend
to review the report of the HM Inspectorate of Constabulary when
it is published later this year. (Paragraph 171)
31. We
have already recommended against retaining the present system
of compulsory prior notification of protests around Parliament.
We see no reason to introduce such a requirement elsewhere in
the UK. In our view, insisting on prior notification of protests
is a disproportionate interference with the right to protest and
is more likely to discourage some protestors from cooperating
with the police than to encourage effective dialogue. (Paragraph
180)
32. We
recommend that police forces review how they foster effective
dialogue with protestors, with a view to ensuring that the Minister's
aim of good quality, trustworthy communication is achieved as
often as possible. National guidance should have a part to play
in achieving this. The police should take proactive steps to
ensure that dialogue is encouraged, but that it is made clear
to all that such dialogue is voluntary. In this spirit, protestors
themselves should also, where possible, engage with the police
at an early stage in their planning, in order to facilitate peaceful
protests. It is in the interests of protestors, the police, targets
and the general public for there to be effective communication
and co-operation between the police and protestors. (Paragraph
181)
33. We
are concerned that protestors have the impression that the police
are sometimes heavy-handed in their approach to protests, especially
in wearing riot equipment in order to deal with peaceful demonstrations.
Whilst we recognise that police officers should not be placed
at risk of serious injury, the deployment of riot police can unnecessarily
raise the temperature at protests. The Police Service of Northern
Ireland has shown how fewer police can be deployed at protests,
in normal uniform, apparently with success. Whilst the decision
as to the equipment used must be an operational one and must depend
on the circumstances and geography in the particular circumstances,
policing practice of this sort can help to support peaceful protest
and uphold the right to peaceful assembly and we recommend that
the adoption of this approach be considered by police forces in
England and Wales, where appropriate. (Paragraph 187)
34. We
recommend that guidance on the use of tasers, to which officers
should be required to have regard, should make clear that the
weapons should not be used against peaceful protestors. In addition,
we recommend that quarterly reports be made to Parliament on the
deployment and use of tasers, including the reasons for their
use in specific incidents. The Government should continue to
monitor the medical effects of the use of tasers and publish its
findings. (Paragraph 192)
35. It
is unacceptable that individual journalists are left with no option
but to take court action against officers who unlawfully interfere
with their work. Journalists have the right to carry out their
lawful business and report the way in which demonstrations are
handled by the police without state interference, unless such
interference is necessary and proportionate, and journalists need
to be confident that they can carry out their role. The public
in turn have the right to impart and receive information: the
media are the eyes and ears of the public, helping to ensure that
the police are accountable to the people they serve. Effective
training of front line police officers on the role of journalists
in protests is vital. Police forces should consider how to ensure
their officers follow the media guidelines which have been agreed
between ACPO and the National Union of Journalists, and take steps
to deal with officers who do not follow them. (Paragraph 200)
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