My Lords, it has been rather a lengthy debate, but rightly so. I accept that the provisions in Part 3 of the Bill raise important questions about the balance of rights in our vibrant democracy, as my noble friends Lady Stowell and Lord Goschen and the noble Lords, Lord Hogan-Howe and Lord Walney, so eloquently outlined. This Government stand by the right to freedom of expression and assembly; no democracy can survive without them. However, these are necessarily qualified rights and must be balanced against the rights and freedoms of
others. That point was well put by the President of the Queen’s Bench Division just last week when sentencing the protesters who had breached the M25 injunction. She said:
“In a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and, up to a point, tolerated. But the words ‘up to a point’ are important. Ordinary members of the public have rights too”.
The provisions in Part 3 of the Bill are about where to draw that line—to paraphrase the noble Lord, Lord Dubs, and indeed the point made by the noble Lord, Lord Campbell-Savours. We believe that, in the light of the experience in recent years with protest groups such as Extinction Rebellion, Insulate Britain and others, the law governing the policing of protests—which is over 35 years old—needs to be updated.
Again, just last week, we heard from the Metropolitan Police the cost of policing the Extinction Rebellion protests in August and September: as well as £4.5 million in overtime costs, the protests required as many as 2,000 police officers to be assigned to police Extinction Rebellion events on any given day. Some 4,000 rest days were cancelled overall. This means 2,000 officers being taken away from protecting local communities—as the noble Lord, Lord Hogan-Howe, pointed out. Of course, there were also costs and significant inconvenience to members of the public and local businesses—and this was on top of the £37 million cost of policing the 2019 protests by Extinction Rebellion. Some costs and disruption are an inevitable part of peaceful protests but, as the noble Lord, Lord Coaker, recognised with his Amendment 292Q, there is a line to be drawn.
Nobody could fail to empathise with people trying to get to work or to get their children to school or their loved ones to hospital who were obstructed, not just—as the noble Lord, Lord Hogan-Howe, said—for a small amount of time but sometimes for hours on end. There were utterly heartbreaking stories of people who were not able to visit people who were dying in hospital. Those protesters are not winning public support in this; the public are pretty disgusted. The working public want to go to work. As the noble Lord, Lord Hogan-Howe, said, police resources are diverted from other parts of Greater London when the protests take place in London. I note that not one Member of the Committee who opposes what the Government are doing mentioned these protests or their effect on the working public.
That brings me to Amendment 293 in the name of the noble Lord, Lord Dubs. I reiterate here that this Government fully support the right to peaceful protest. This amendment aims to enshrine that right in legislation. As the Committee will be aware, the Human Rights Act 1998 writes the European Convention on Human Rights into UK law, including those rights in Articles 10 and 11. Under Section 6 of the Human Rights Act, it is already unlawful for public authorities to act in a way that is incompatible with the convention rights. That being the case, while I share the noble Lord’s belief in the importance of the freedoms of expression and assembly, I do not think that this new clause is necessary.
Amendments 294, 295, 299, 300, 303, 305 and 306 would remove the ability of the police to place conditions on processions and assemblies where the noise they generate risks causing serious disruption to the activities of an organisation or significant impact to those in the vicinity of a protest. The threshold at which the police will be able to impose these conditions is very high, and the vast majority of protests will be able to continue making noise as they currently do. These powers can be used only on unjustifiably noisy protests.
I would also like to take this opportunity to clarify that the police will be able to place conditions only on the basis of the level of noise which is generated from a protest. This means that the police will not be able to place conditions on a protest if the content of what is being said or chanted causes anyone unease, alarm or distress. Protests by their nature highlight often very controversial and difficult issues in society, and we have no intention of preventing this. In making use of this power, the police will have to consider the intensity and duration of the noise generated, the number of people and organisations affected, and the rights of the protestors involved, to respond to the question from the noble Lord, Lord Oates, on the embassy protest. As the noble Lord, Lord Hogan-Howe, said, the police make these judgment calls every day.
I remind the Committee that the police are restrained in their use of conditions on protests, and this will not change. In his evidence to the JCHR, the NPCC public order lead, Chief Constable Harrington, said that there were over 2,500 protests between 21 January and 21 April 2021, and that where they have records, conditions had been imposed no more than a dozen times. As the noble Lord, Lord Hogan-Howe, said, the police have been acting proportionately.
Moving now to Amendments 297 and 307 in the name of the noble Lord, Lord Beith, I am grateful to him for pointing out that these are probing amendments to understand the meaning of the term “unease”. Should the noise from a protest risk causing persons in the vicinity “serious unease”, the police may place conditions on the protest to prevent that harm. As I have indicated, when setting conditions, the police will be required to consider the likely number of people impacted by the noise, the likely duration and the intensity of the impact on those people. The police will also be required to act compatibly with the rights to freedom of expression and assembly of those generating the noise.
The word will take its natural meaning and it will ultimately be for the courts to interpret. Removing “unease” would raise the threshold at which conditions can be placed on the basis of noise. The police will be able to do so only where there is a risk of intimidation, harassment, serious alarm or serious distress. That would leave a gap where protesters could continue to cause harm to those in their vicinity through the level of noise they generate.
Amendments 296 and 301 in the name of the noble Lord, Lord Paddick, would require the police to obtain a High Court order before they can impose conditions on public processions and assemblies. This would be a significant departure from the framework in the 1986 Act. As the noble Lord will know, the nature of protests can change rapidly. It is vital that the police
are able to respond swiftly to developments, and I fear that requiring them to seek permission from the High Court to place conditions does not recognise the fast-moving dynamics of policing a protest.
Public order commanders receive extensive training and guidance on the safe management of protests. Through the College of Policing’s authorised professional practice, their training and their continuous professional development, the police are continuously improving their ability to strike the correct balance between the rights of protesters and the rights of others.
Amendment 302 in the name of the noble Lord, Lord Dubs, would remove the ability for the police to place any necessary condition on an assembly, as they can currently do for processions. I have already explained the fluid nature of protest, and I re-emphasise the need for the ability to place conditions on assemblies and processions to be aligned. While giving evidence to the JCHR, Chief Constable Harrington detailed that it is not always evident when a procession becomes an assembly, or indeed vice versa, which makes the imposition of conditions for complex protest scenarios extremely challenging. He also stated that the limitations on what conditions can be placed on assemblies are not suitable for some of the assemblies they have had to police in the past. Ensuring that the range of conditions which can be placed on assemblies matches those currently available for processions would resolve both these issues.
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I come now to Amendment 304 in the name of the noble Lord, Lord Hendy, whose speech was read out by the noble Baroness, Lady Chakrabarti. I wholeheartedly agree that we must support workers’ right to peacefully protest and take collective action as part of a trade dispute. The ECHR provides that the rights of freedom of assembly and expression can be legitimately limited to prevent disorder and to protect the rights of others. When using these powers, the police must not act incompatibly with picketers’ rights under the ECHR, as is currently the case when considering the use of Sections 12 and 14 of the Public Order Act.
Amendments 309, 310 and 312 concern the fault element for not complying with police conditions on an assembly or procession. The Bill modifies the threshold from one where the prosecution has to show that a protestor knew of the conditions to one where the prosecution must prove that the protestor knew or “ought to have known” of the conditions in place. These amendments would change this to where the perpetrator either “recklessly” or “deliberately” avoids gaining knowledge of conditions they go on to breach.
From that, I recognise concerns that we must ensure that these measures do not sweep up those who are inadvertently or accidentally unaware of conditions in place. As I have said, if the police cannot evidence the fact that they made appropriate efforts to inform protesters, then those who accidentally break conditions will not be at fault.
These amendments would place a disproportionately high burden on the prosecution, which would be required to prove beyond reasonable doubt that the defendant actively took steps to avoid being made aware of the
conditions in place. Collecting such evidence would be extremely challenging in the context of a large protest. Therefore, I think that this approach would not resolve the loophole exploited by some.
Amendments 311 and 313 would remove the increase in sentences for those who breach, or incite others to breach, conditions on assemblies and processions. As the Government have already made clear in their response to the JCHR, we think that the current maximum penalties for breaching conditions are disproportionately low compared with the harm suffered in the most extreme examples of protests. It will be for the independent judiciary to pass sentences appropriate to the facts of each case, subject to the statutory maximum.
Amendment 318 would require that only a police officer of the rank of inspector or above would be able to impose conditions on one-person protests. It is right that we follow the same approach for processions and assemblies, where the most senior officer of any rank at the scene of a protest can impose conditions which are necessary. The police need to be able to react to harmful protests swiftly and I have already detailed the extensive training and guidance that public order trained officers rely on. Therefore, it is right that the most senior officer available be the one with responsibility for placing conditions on a single-person protest.
Finally, Amendment 320A seeks to explore whether the model of a parades commission as it applies in Northern Ireland could be adopted in England and Wales. I do not think that the amendment is necessary. The Parades Commission that currently exists in Northern Ireland was set up to independently place conditions on parades in order to minimise sectarian tensions. The context in England and Wales is completely different from that in Northern Ireland and the powers available to the police under Section 12 of the Public Order Act, as amended by this Bill, are sufficient for the management of marches. As I have said, the police are restrained in their use of conditions and use them in only a small minority of the protests they manage. Therefore, I see no need to pass the power to set conditions over to a third party.
In conclusion, these provisions in the Bill provide for no more than a modest updating of the Public Order Act. The police must have the tools they need to ensure that the rights of protesters are appropriately balanced with the rights of others. I hope that, in the light of my explanations, I have been able to satisfy noble Lords and I commend these clauses to the Committee.