UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 826-i

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

POLICING AND PROTEST

Tuesday 24 June 2008

DR ERIC METCALFE and MR JAMES WELCH

Evidence heard in Public Questions 1 - 61

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Joint Committee on Human Rights

on Tuesday 24 June 2008

Members present:

Mr Andrew Dismore, in the Chair

________________

Witnesses: Dr Eric Metcalfe, Human Rights Policy Director, JUSTICE, and Mr James Welch, Legal Director, Liberty, gave evidence.

Q1 Chairman: Good afternoon, everybody. This is the first witness session on our new inquiry on Policing and Protest, and we are joined by Eric Metcalfe, the human rights policy director of JUSTICE, and James Welch, the legal director at Liberty, so welcome to you both, old friends, I think. Do either of you want to say anything by way of an opening statement before we start?

Dr Metcalfe: No, thank you.

Q2 Chairman: Perhaps I could start with James. Do you think that the right to protest is valued and protected now as much as it was when the NCCL, as it then was, was first set up? If not, what has changed?

Mr Welch: Unfortunately or luckily perhaps even I do not have that long a memory. Members may well be aware that the National Council for Civil Liberties was set up in 1934 in response to concern about the way that the police were treating demonstrators, hunger marchers from various parts of the country when they arrived in London, so protest has been or was then the focus of our work and has remained the focus of our work ever since. Whether it is still as valued or is as valued now as it was then, I do not know, I do not have that long a memory, but certainly, I think it is completely right that protest is a very important democratic right, and one which should be cherished and looked after.

Dr Metcalfe: In our view, I think the situation is both better and worse. It is arguably much better protected than it was, historically speaking, but in substantive terms, the right to protest, the right to free assembly is also much smaller than it was. On the plus side, for the first time in the last ten years, we have constitutional protection given to freedom of assembly under the Human Rights Act, but at the same time in the last 30 years, for example, we have seen sweeping public order powers introduced and handed to the police, and that is a trend that has only really accelerated under the Human Rights Act. While I would say the right to freedom of assembly is smaller than it was, there is now a much larger range of statutory powers that exist that engage or interfere with legitimate peaceful protest. I am hesitant to say there was any golden age of the right of peaceful assembly, we were founded in 1957 and I am not sure things were that great then, but it is certainly true to say that now, in 2008, there are far more legal powers that infringe upon peaceful assembly than were the case in, say, 1957. I think part of this is a problem under the Human Rights Act to assume that powers will be exercised consistently with Convention rights, and that therefore, to an extent, Parliamentarians have not always given due attention to the need for specific safeguards in relation to particular powers.

Q3 Chairman: To what extent do you think that the current security scenario should make any difference?

Dr Metcalfe: Well, I certainly think that it has made things worse. National security, as is so often the case with any human rights issue, is used as a trump card. I am not suggesting for a moment that there are not serious security concerns, there is a serious terrorist threat in the country, but we have found particularly since 9/11 that the security concerns have tended to operate in a way to override normal freedom of assembly concerns, and I think the Gillan case, about section 44, stop and search, is the perfect illustration of that, where the Metropolitan Police justified their blanket authorisations and rolling authorisations of stop and search powers within Greater Metropolitan London on the basis that pretty much any large scale gathering is a potential source of terrorist activity, and therefore, that justifies them using stop and search without reasonable suspicion because it is simply not possible, as far as the police are concerned, to distinguish between those areas which are more at risk and those areas which are less at risk.

Q4 Chairman: Do you want to add anything to that?

Mr Welch: All I would say is although obviously we appreciate there is a very serious terrorist threat, we are not aware of any suggestion that protest demonstrations, marches or whatever, have been targeted by terrorists or sought to be targeted by terrorists or that anybody has actually used such large events involving lots of people in order to get access to areas they would not have previously got access to. The reports that we hear of plots there have been tend to suggest that it is other types of occasions involving large numbers of people that have tended to be targeted, so discotheques, nightclubs, shopping streets, things like that. I do not think there is any suggestion, or has been certainly in this country any suggestion that there is particular targeting of protest events. Just to build on what Eric said about use of section 44 against demonstrators and the case of Gillan, which was a case that Liberty took through the courts, our concern is very clear, that whatever the police's motivation, the powers are being used in such a way as is likely to discourage people from participating in lawful, peaceful protest. We hear about people who say that they went on a protest, were stopped by the police, their bag was gone through, their diary was gone through, people find that very intrusive, whatever the House of Lords in their judicial capacity may have said about it not engaging Article 8, or indeed any of the other articles of the Convention, but people do find it very intrusive when they are stopped by the police, and that is likely to have a considerable chilling effect on people's right to protest. So while we accept that there may well be occasions when the police should use these powers, and the Committee are probably aware that Liberty does have concerns about section 44 generally, but assuming that there are occasions when they can legitimately be used, then we would call on the police to use them very sparingly in the demonstration context.

Q5 Lord Dubs: Do you think there should be a legal distinction between peaceful and violent protests, given that some violent protests are used to intimidate people that the protesters do not like, or organisations?

Dr Metcalfe: We have certainly never been an organisation that suggests that violence is a legitimate part of the right to freedom of assembly, I think it is very clear that a protest that involves violence, whether directed at individuals or property, such activity is plainly unlawful. I think you do have to be careful to distinguish between peaceful assembly in general and the possibility that a peaceful assembly may nonetheless contain individuals who are prepared to breach the rules. I think this is one of the perennial problems that we grapple with in the right to free assembly in general. It is very important to protect the right to peaceful protest. The right of 1,000 people to march peacefully should not be prohibited or disproportionately infringed simply because one or two people on that march break the law. So I think that really what you need, and what is in fact required by the case law of the European Court, is for there to be an assessment of the risk of disorder in any peaceful assembly and for policing to be based upon a sensible assessment of the risk in any particular case, but the mere risk that violence may occur in a protest is not, in our view, certainly sufficient grounds to abridge the right of protest completely. It is certainly sensible grounds for regulating it in certain cases.

Mr Welch: I have very little to add to what Eric has already said. Clearly we support the right to peaceful protest, we do not support people's right to engage in acts of violence or acts of intimidation, but as Eric says, there is a problem where perhaps people organising demonstrations set out with peaceful intentions, their intentions may be peaceful, but other people may attend the march who do not have those intentions and end up causing trouble, but as Eric said, I do not think that is any reason to seek to curtail the right to protest peacefully just because there is a possibility in some cases, albeit thankfully fairly rare, when people do hijack demonstrations for their own purposes.

Q6 Lord Dubs: If I could ask a supplementary to that one, do you think that the police are good at making judgments as to whether an ostensibly peaceful protest is liable to turn violent when the organisers say it is not and the police think it is, do you find that happens?

Mr Welch: Well, I think in a way, the police can only judge what is happening on the day, and by and large, that should be their approach; where there have been problems, certainly problems that end up going through the courts, these have tended to arise because the police have acted pre-emptively. I am thinking of the case which is now going to the House of Lords, Austin & Saxby v Metropolitan Police Commissioner, where the police corralled people into Oxford Circus. I am also thinking of the Laporte case, the one about people going to protest outside an RAF base in Gloucestershire. Those cases were very much clearly cases where the police anticipated trouble, and certainly, it has now become clear, I think, as a result of the House of Lords judgment in the Laporte case, in that case, they acted precipitately and wrongly in doing what they did. The Austin & Saxby case, as I say, has yet to go to the House of Lords. But I think there are problems where the police anticipate violence and act pre-emptively; far fewer, I would suggest, where the police perhaps see what happens on the day, although I appreciate that there may be circumstances where the threat is so great that the police do feel they have to go further than just reacting on the day.

Dr Metcalfe: I was just going to mention, I am looking at the guidelines on freedom of peaceful assembly which were developed by the Organisation for Security and Co-operation in Europe, these were released last year, but it notes that although assemblies can change from being non-violent to violent, "the making of unlawful statements by participants in an assembly (whether verbal or written) does not of itself turn an otherwise peaceful assembly into a non-peaceful assembly, and any intervention should again arrest the particular individuals involved rather than dispersing the entire event." Really that is a statement of the principle that sometimes, for example, you can have a protest where people say unlawful things, say, for example, incitement to violence, but the reaction of police to that illegality should not be to disperse the entire event or 1,000 people for the sake of one person saying an illegal thing. Also bear in mind, of course, the risk that the action may itself be disproportionate. We saw very recently the Scientology protest in which I believe it was a student was cited for holding a placard referring to Scientology as a cult. Given the risk in the exercise of any discretionary power that the decision of a police officer may itself turn out to be disproportionate, it would have been even more disproportionate if the entire gathering had been quelled simply because that one policeman had made an error of judgment.

Q7 Lord Dubs: How should we resolve conflicts between the right to free speech and the right to protest against what is being said?

Mr Welch: I do not think there is necessarily a conflict between the two of them. If one person says something that another person does not like, surely they have a right to say that. There may be disagreement as to the terms in which that disagreement is expressed, and I think that tends to be where the problems have arisen, but clearly in a democratic society, debate involves people expressing disagreement with other people's views, and sometimes very strongly, and I think we have to be not too squeamish in our approach to this and accept that there may well be circumstances where people express themselves in opposition to the views of others, in rather extreme terms.

Q8 Lord Lester of Herne Hill: Can I just ask a supplementary? Presumably if speech eventually degenerates into a clear and imminent threat of violence, then that is a different matter.

Mr Welch: Absolutely. Obviously, you may cross a point where clearly, there has to be interference with the right to freedom of expression or freedom of protest against other people's views, but the starting position should be that both sides should be accommodated, both sides should have their right to say their piece.

Q9 Lord Lester of Herne Hill: You know better than I do the cases, for example, about anti-Semitic speech in Trafalgar Square and then Jews protesting and the police deciding to ban the speakers on the ground that they would be an imminent threat to breach of the peace, saying you take your audience as you find it and so on and so forth, that is all very difficult stuff, is it not? Because it is so hard to protect the peace while at the same time protecting other fundamental rights.

Dr Metcalfe: Just to add, I agree completely with James, the right to peaceful assembly requires not only facilitation of certain points of view but also views opposing that. As to the particular problems relating to the risk of violence arising from protests and counter-protests, it may be appropriate in the most exceptional circumstances for facilitation of the counter-protests to make clear arrangements, say, for example, holding the protest on opposite sides of the square or even on alternate days if necessary. You only have to look at the work of the Parades Commission in Northern Ireland to see this taken to the most extreme form, where you have an entire commission set up to ensure that peaceful expression of views does not degenerate into violence, and that involves very clear mapping out of boundaries and so on.

Q10 Dr Harris: Are you saying that would be a better way forward to put restrictions on where one can protest in order that both sides could have their say?

Dr Metcalfe: I am not advocating that as a general principle, I think I should probably have to be quite clear on this point, I am saying that if your assessment of risk in a particular case is such -- say, for example, it is a Northern Ireland type situation, and it is July 12th, your factual assessment may require those exceptional measures to be taken. I am not suggesting that those exceptional measures should be in any way the norm, and I am saying that the default position should be that protests and counter-protests should be able to exist lawfully side by side.

Q11 Dr Harris: I just want to take one example, which is policies of no platform, where people protest specifically to try and prevent a speech taking place, and sometimes, when the speech is likely to be unpleasant, let us say it is a BNP speaker, in my experience, the police side with the protesters. They did in Oxford at a debate I was involved in on curiously the rights of extremists to free speech, where the police allowed the demonstration to prevent the speech taking place, and they thought that was fine, because it was inside a private venue and it was not their duty to allow people inside a private venue to hold a debate.

Dr Metcalfe: I do recall the case that you refer to, and I would share your criticism, if I understand it to be that, of the police's decision in that case. It seems to me that that was a disproportionate infringement of people's ability to freely attend an event, however much we would condemn some of the views being expressed during that event.

Q12 Dr Harris: On Anthony's point finally, let us say you have someone who might say something racist and therefore unlawful, because it incites racial hatred, one could argue that it is best to record what is said and prosecute it, rather than prevent it being said in case it might say something; do you think that that is the best approach, unless there is imminent risk of violence, of course, and if you do, do you think the police or the authorities get that balance right, or are they too willing to reject an application by, for example, the BNP to have a platform in case they say something?

Dr Metcalfe: As a policy organisation, we are not quite in such a good position to make general statements as to whether the police are always striking the balance right. I would say, however, that we are concerned that there is a tendency towards prior restraint. I agree with you that the proper approach should be if someone says something unlawful, for the action to follow subsequently, rather than to prevent the speech being made in the first place. I think the big catch-all is obviously however the police's assessment that there is a risk of violence, and unfortunately, we are dealing with speech that may incite violence in front of a crowd. Unfortunately, the police are always going to be mindful of the potential, and one can perhaps be sympathetic to their aim that they would prefer to avoid people being injured in a resulting stampede, and they may see that the lesser evil is to restrain the speech in that particular case.

Q13 Dr Harris: But cannot the police say, "Look, we cannot afford to put 100 officers here to prevent the stampede, to separate the crowd, so the easiest thing for us to do is say you cannot have your controversial meeting"?

Dr Metcalfe: That is exactly the evil that results, which is that the police end up restraining all kinds of speech that are liable to be controversial.

Q14 Dr Harris: So what I am putting to you, if we could be specific, is should not the police just do their job and keep separation and manage the situation, and be extremely loathe to impose prior restraint on budgetary grounds, because I am not sure what we have the police for, I would say, if they say, "We are not prepared to police this free speech so we will ban it".

Dr Metcalfe: Absolutely, I agree completely.

Mr Welch: I would just like to say, I have no doubt the police face very difficult jobs trying to ensure that two sides of a conflicting argument can both get to have their say, but I come back to what I said earlier on, the starting principle should be that people should be able to have their say, should be able to hold their protest, and only under very extreme circumstances should steps be taken to interfere with that. Again I would agree with Eric that by and large we do not approve of prior restraint, it is much better that action is taken afterwards rather than running the risk of stifling speech which is not itself criminal by banning a march from the outset. I think sometimes there are problems, however, as I think Dr Harris has indicated, where the police tend perhaps to side with one side rather than the other. They do do a very difficult job, and I appreciate that they are doing a very difficult job, but it may well be that sometimes, one side of the argument rather than the other puts more pressure on them behind the scenes in advance or whatever, and that this results in the police perhaps being more heavy-handed on one side than they are on the other.

Q15 Lord Lester of Herne Hill: Can I just follow up? When Lord Scarman looked at this in the light of the Red Lion Square disorders, which are really the kind of questions Lord Dubs is asking about, you remember his solution was to widen the crime of race hate speech, which we did, perhaps too much, but we did, so his solution partly was the separate demonstration solution, but partly it was to criminalise race hate speech more in order to try to prevent what the National Front were doing. Are you saying that such is your commitment to free speech and freedom of assembly that you think that was a misjudgment, and there should be more opportunity for provocative speech and demonstrations, or are you saying that kind of restriction is justifiable?

Mr Welch: Unfortunately, I do not remember as far back as the Red Lion Square disturbances, but what I am saying is that one should be loath to prevent a demonstration completely on the basis that something may be said there which might be criminal. I mean, clearly there may be circumstances where the intent is so clearly criminal that it can be justified to ban the protest from the outset, but what I am trying to get across is that there may be people who are going to say stuff which is unpleasant and unlawful, there may just be people who are going to say stuff with which you disagree, but they still have the right to say it. Banning the protest from the outset means there is no chance for any type of speech, and that should be very much the remedy of last resort.

Q16 Lord Dubs: May I just ask a supplementary to that? You mention Northern Ireland; in fact, it was either total restraint or no restraint in terms of whether a march goes down the Garvaghy Road or not, and the only value to the Northern Ireland system was it was an independent body that decided rather than the police or the Secretary of State, so it took that pressure off. But if we apply that to the UK, surely we have for a long time had the practice that a BNP/National Front type march should not be allowed to go through areas where large numbers of black people live, and is that not dealing with the point rather differently from the way you suggested?

Dr Metcalfe: I think a march through a neighbourhood is somewhat different from a march in what we might call a pure public space, such as a square, which is not immediately adjacent to people's homes. There is an argument, which I think has to be taken very seriously, that your right to a private life and your right to peaceful enjoyment of your home provides additional protection in that kind of situation to make it -- if it is open to you to protest in the town square, the argument goes, you should not need to march in front of someone's house in order to make your point. I am not saying that marches in front of houses should always be banned, but I do think that provides additional grounds for regulation in relation to the kind of situation we are looking at, such as the BNP march, or an Orange march or a nationalist march.

Q17 Lord Dubs: That leads me very nicely to my next question: how do we ensure that there is space for all to exercise the right to protest, and how should competing protests within the same physical space be reconciled? You have dealt with it partly in terms of Red Lion Square but of course, there are other examples.

Dr Metcalfe: I think the key point we would make is any regulation should be kept to a minimum. I am not saying there should be no regulation, obviously there should be regulation to facilitate where there are competing demands, but I do think that the arguments that certain public spaces such as Parliament Square require prior authorisation, simply because of the sheer demand for public protest, is often overstated. If it is truly necessary to regulate protests at Parliament Square, first show the need, first show that there have been multiple demands for protests on the same day at the same time, and that these have led to significant problems. I myself am deeply sceptical that Parliament Square is in demand 365 days a year, and I do not know that even Trafalgar Square, which is probably even more popular, is in demand to the same extent. If the evidence shows that on most days, for example, there are no requests for protests, or no protests being held, but there are only multiple protests on weekends, then it would be in my view unreasonable to require a system of authorisation every single day of the week. It may be proportionate in that situation to only require authorisations on Saturdays and Sundays. I am simply giving these as hypothetical examples of how the trend towards regulation should always be kept at the minimum possible. I am not saying there is not a need for regulation in certain circumstances to prevent public order difficulties. There was a very interesting article in the New York Times yesterday about how they regulate protests at City Hall in New York City. Until 2001, they had no regulation whatsoever, they referred to the City steps as prime real estate, and after 9/11, Mayor Giuliani imposed a situation where you needed a police permit in order to hold a demonstration on the City steps, and Mayor Bloomberg scrapped that, and now the situation is you have an appointment, and so you make an appointment and you book 15 minutes and you get 15 minutes on the City Hall steps, and the title of the article was, "To make a stir at City Hall, make an appointment". I am not saying you need a system of appointments or a system of bookings, I am saying that is one way of managing prime protest real estate, if you like, but certainly the trend should be towards keeping regulation to a minimum.

Mr Welch: I would agree with what Eric said, I do not think there is much evidence that this was a problem before the Serious Organised Crime and Police Act came into force and proposed those restrictions. Now possibly even if they were taken away, there might be a problem for a while because Parliament Square has now become such a focus of demonstration as a result of having been elevated, if you like, through special provisions being applied to it. But I am sure that in time, things would revert to where they were before. Certainly the conversations I have with people who organise demonstrations is that until it was actually required by the Serious Organised Crime and Police Act, people would tend to notify the police anyway as a matter of course. They were not required to, but they did it voluntarily, because obviously they could see that there was merit in the police knowing that people were going to be there and what they were doing and how long they were going to be there for. The trouble is, once you made it compulsory, people objected to that, because they saw it as unnecessary, and that is how we have got ourselves into the position where we find ourselves.

Q18 Lord Dubs: My last question is this: there are of course some long-term or permanent protests, I think some of the Parliament Square protesters are there 365 days a year, at least I have not seen the Square without them for a long time, but what protection can and should be given to long-term or permanent protests of that sort?

Mr Welch: I think if people want to protest and it is not causing a major problem for others, people should be allowed to do that. I do not think there are many people that would have the commitment that, say, Brian Haw has. I admire him for what he has done. I do not think the fact that he possibly forms a bit of an eyesore is any good reason to take his protest away.

Q19 Chairman: What happens if he queers the pitch for somebody else? I will give you an example. Last year, I was helping with a demonstration for Chinese people protesting against immigration laws, and basically, he has taken over the whole of the pitch, and gets rather sniffy if anyone else tries to muscle in, and gets shoved up at one end in a corner. Effectively, this is following up on Alf's question, if somebody dominates the whole of one side of Parliament Square, it means nobody else gets a look in. How do you balance that out?

Mr Welch: I can see that there may be reasons why he should not be entitled to take up the whole of the Square, but I would have thought that might well be better dealt with by way of discussion between him and other people who wish to protest.

Q20 Chairman: He is not really amenable to discussion, in my experience, on that occasion anyway.

Mr Welch: That is very much a one-off case. Our concern, when the bill was brought forward that became the Serious Organised Crime and Police Act, was that this was a measure that was being introduced solely to regulate his protest, I think we accept that there were other factors that then got thrown into the legislation as well, and that was not the sole reason, but I prefer to regard what he does as a great example of British bloody-mindedness, good on him.

Q21 Lord Lester of Herne Hill: I am all in favour of that kind of statement in general, but surely, time, manner and place regulation of a proportional kind is needed when someone seeks to occupy a public forum like that permanently to the exclusion of others. Surely if he is bloody-minded in the way that you regard as characteristically British, at that point, we have to say, okay, but others have rights to free speech as well.

Dr Metcalfe: I agree, but I do not think that necessarily contradicts James' essential point that he has a right to be there, he has a right to protest there, to maintain his protest. I also agree that he should be asked to move down to one corner and not take up the entire side of Parliament Square if other protests are being held, as much as Mr Haw no doubt will protest when he is asked to move to one corner, so long as he is allowed to maintain his protest on Parliament Square. If at some point in the future, we have 100 people camping out in Parliament Square and they are all demanding equal time and equal space, then it would be appropriate to review the situation, but this goes back to my basic point which is: do not impose the regulation until you can show a need for the regulation. I do not think the fact that Brian Haw is maintaining a permanent protest on Parliament Square shows a need for arguably some regulation to make Brian Haw move down to one corner, but it does not necessarily show that Brian Haw cannot maintain his protest full stop. I do not think Brian Haw being allowed to maintain his protest but on a smaller pitch than normal on certain days when other people are protesting is in conflict with that.

Mr Welch: Just to clarify my position, I think what I am trying to say, it is a case of -- I think the expression is hard cases make bad law. He is very much a one-off, and I do not think we ought to construct a whole system regulating the way that people demonstrate in Parliament around one man. I think I would be in agreement with what Eric just said; it may well turn out that if there are so many calls on Parliament Square that all cannot be accommodated, some form of curtailment of rights has to become necessary, but leaving aside the example of Brian Haw, I do not think that is the case.

Q22 Lord Dubs: Would you think there should be any constraints in a situation like that of the use of loudspeakers at whatever volume there is? Do you think that is part of the right to protest, or is an excessive use of loudspeakers at a high volume such that (a) it stops other protesters, because they are drowned out, and secondly, in general terms, should that be constrained?

Mr Welch: Again, it is a matter of being persuaded that there is genuinely a problem. Obviously, if there are large crowds of people, people making speeches, loudspeakers are necessary in order for people to be able to hear them, and I would be reluctant to have a blanket ban as there is currently in Parliament Square for that reason. Obviously, it is also a means by which you can hopefully reach the people that you are addressing, and given that it is Parliamentarians that are no doubt the audience at which these demonstrations are aimed, then I can see why people want to be able to use loudspeakers, but I accept that there may be circumstances, if it were the case that it was seriously obstructing the work of Parliament, then it may be necessary, but again I am not persuaded of that fact.

Dr Metcalfe: There is a hypothetical case, of course, for public health constraints; if a protester were to deafen passers-by by playing music through an amplifier so loud that it was causing permanent hearing damage, then of course it would be right to regulate that. Less seriously, you can of course have the situation where a person is maintaining a very loud protest for 20 hours a day, that similarly I think would fall to be regulated on grounds of simply public nuisance. You know, it is right for people to be able to use loudspeakers during protests in general, but there is nothing wrong with manner and place and time restrictions on disproportionate use of a loudspeaker. I do not really see that as being an issue that is real at the moment. I do not think Brian Haw's use of a loudspeaker in Parliament Square seems to me to cause so many problems, and if it is a standing problem in terms of Parliament, caused by noise from outside, it seems to me a much better use of public money to soundproof the building than to impose restrictions on free assembly in Parliament Square.

Q23 Mr Sharma: How strong is the positive obligation on the state to facilitate free speech by regulating or policing protest?

Mr Welch: I would say it should be a very strong obligation on the state, given what we have already said about the importance of protest. I would say it is a fundamental democratic right. It is one of the ways by which people express their views on matters of importance to them. I would say that given its importance, there should be an obligation on the state to facilitate protest, and that, as I think we have already covered, can include the police allowing counter-protests to take place, but I think possibly more importantly, certainly on the basis of what we at Liberty have been hearing about the way the protest is being approached at the moment, I think there is an obligation on public authorities generally to facilitate protests and not to put obstructions in the way of people who are seeking to exercise their right to peacefully protest. I am thinking of things we have heard about at Liberty in the last few months, people being threatened with being charged for road closure orders; people being told that in order to protest at a particular location, they have to take out public liability insurance; I am aware of a group in Lancaster who have been told that if they played music on demonstrations, that would breach the Licensing Act. There seems to be a lot at present suggesting that some local authorities are throwing up other obstacles in the way of people protesting, and we would say that that is fundamentally wrong. Local authorities or public authorities should view their responsibility as being to facilitate protest rather than to throw up bureaucratic obstacles.

Dr Metcalfe: The European Court of Human Rights in a recent case against Turkey set out in general terms the positive obligations that fall upon states. One is to take appropriate measures with regard to lawful demonstrations in order to ensure the peaceful conduct and the safety of all citizens, but they said in addition that States must not only safeguard the freedom of peaceful assembly, but also refrain from applying indirect unreasonable restrictions upon that right, and even to an extent undertake positive obligations to ensure effective enjoyment. So if, for example, there needs to be first aid facilities at a large protest, it would be proper for the police to make arrangements so that an ambulance can get through at short notice. In one dissent in a recent case, it was even noted that forcible intervention by police, where a protest which was peaceful had turned violent in small parts, may be disproportionate, even if the notification requirements had not been complied with, which is to say that the police reaction should not be disproportionate, even in the situation where you have authorisation or notification requirements, and to a certain extent, there has to be some toleration of disruption to the public caused by the right to lawful assembly.

Q24 Mr Sharma: Thank you, you partially answered my next question, but still I will put it: what steps, if any, would you expect the state to take to facilitate peaceful protest?

Mr Welch: I will just start perhaps with a rather specific issue: one thing that we have been contacted about by members of the public in recent months and over the last year or so has been the issue of the right to march on roads, so people who wish to conduct a moving demonstration comply with their obligations under the Public Order Act, notified the police, but as I already suggested, in one case, although the police were notified, the local authority then contacted the three school students who were actually organising the demonstration to say that if this march went ahead, the local authority wished to charge them for closing the road, and I think a sum in the region of £2,000 was mentioned. This slightly got kicked into the long grass, the march went ahead and the local authority now does not seem to be trying to bill anybody for this, but we would say that that was completely inappropriate. We both think it is actually unlawful, because the statute under which they were seeking to charge we would say does not allow them to charge for public demonstrations, as opposed to other sort of social events that take place on the street, but we would also say it is wrong in principle, that this is the type of thing which public authorities should be undertaking in order to allow protests to go ahead. Where somebody wishes to hold a march, we would very much hope that the relevant public authorities, the police, local authorities, should accept that it is their responsibility, if it is necessary to close a road or parts of a road in order to let that march pass, they should take the necessary steps to allow that to happen, and that that, it would seem to me, is an appropriate level of facilitation which we should expect from public authorities. I think we would also, to broaden this out slightly, say that public authorities should not put obstructions in the way of people using their space. An example of this which Liberty itself experienced in recent weeks was an attempt by us to organise a protest in Parliament Square, and we were told by the GLA, which is responsible for that bit of Parliament Square, that if we were to hold an event there, we would need to get public liability insurance. It may well be highly desirable that an organisation like Liberty should have public liability insurance when we organise a demonstration, and no doubt we will take steps to make sure we do, if we do not already have it, but I do not think it is part of the role of the local authority to be telling us to do that. The right to protest is so important, we would say that bureaucratic obstacles should not be put in the way of people exercising that right.

Q25 Lord Lester of Herne Hill: I should declare an interest because I am on the council of JUSTICE and a member of Liberty as a supporter. I would like to ask you about how you draw the line in terms of private space. I have read the evidence of both organisations. Liberty does not really deal with it in any way; JUSTICE, in your evidence, seems not to like either the notion of harassing someone in his home, under section 126 of SOCPA, or criminal trespass, and neither organisation seems to me to be weighing up in its evidence respect for private life, home and the rights of others in the context of private space. Now for the purpose of my question, let us forget about YL and cases where private space is really not private space because it is being managed by a private body exercising public power, let us just deal with, as it were, the Harriet Harman home type problem, the two Fathers For Justice people on the roof and so on. Are you not willing to contemplate, to take the easiest example, that people's homes are a private space and that invading that private space is something that one should toll against unless there were overwhelming reasons to the contrary?

Dr Metcalfe: I think my earlier answer in relation to marching through residential areas helped to set out what I think are the important considerations, I think we recognise that there is the right to respect for home under Article 8, and that is an important right and it sets limits on the right of peaceful assembly. A protest outside someone's house may be legitimate, but it would also be legitimate to regulate that in a far more intrusive or intensive manner than we would, say, allow regulation of a protest in the town square. I think accordingly, it would be proper, if someone wants to protest on Harriet Harman's private dwelling, for example, you might require regulation for them, hypothetically speaking, that they can only protest across the street, they cannot make more than 30 decibels of noise, it has to be a silent protest, you know, they can only hold placards, blah blah blah, across the other side of the street. I am not referring to any law here, I am simply giving an example of why, when balancing public and private interests in this way, it is appropriate to allow more weight to be given to the fact that that is Harriet Harman's home, or a private individual's home. I think this is a special case, because Harriet Harman is an elected official. There would be different considerations if that was a purely private individual.

Q26 Lord Lester of Herne Hill: I should declare an interest, because I live round the corner from the house in question. The consequence, for example, of what was done there was that a very large number of police officers were deployed for the entire day and night closing off the entire street for all the residents, that she had to get out of her house, in order to do so, that they invaded her property, used a ladder and so on, and surely that would be an example of an entirely disproportionate invasion which, for example, the Protection from Harassment Act, which you do not like in this context, is designed to deal with. It is the harassing of somebody in their private property, whether they are a public official or anybody else.

Dr Metcalfe: I have to confess some uncertainty about the facts of the case. If they were on her property at all, it seems to me a straightforward matter of trespass. I think we could have a debate about the merits of the Protection from Harassment Act, and also the difficulties that it applies in relation to public protests, say, for example, the Sikh play in Birmingham, but if you are on a person's property and you have no lawful reason to be there and it is a private property, you are guilty of trespass.

Q27 Lord Lester of Herne Hill: But is your position that you would give greater protection to private space than to public space?

Dr Metcalfe: Yes.

Q28 Chairman: Is there not a distinction really between somebody's private residence -- this goes back a long way, I think it was the Conspiracy and Protection of Property Act 1875 which said you could not picket outside somebody's house, whereas you can picket outside the factory. So it is a long-standing tradition of English law that you cannot actually go and get somebody in their home in that way. You think you should be able to picket somebody's house?

Dr Metcalfe: I am saying that the blanket prohibition on picketing anywhere near a person's residence is arguably disproportionate, but I am not saying you should not give much greater weight to the fact that it is a person's private residence.

Q29 Chairman: Should there not be a distinction between somebody's personal and private family life, under Article 8 perhaps, and their professional life? If you want to come and picket outside the Ministry or Parliament, that is one thing, that is where I work, that is my job, that is what I do, as opposed to being at home with my family, in the garden or watching TV or something; you think it is perfectly okay, within reason, to picket outside somebody's house as well?

Dr Metcalfe: I think it is not a black or white issue. I am saying that it is very clear that your right to respect for private life means that you are protected to a far, far greater degree when you are in your private home from peaceful assembly, from protest than you are at your place of work. What I am suggesting is that the argument that you can never, ever, ever in any circumstances tolerate any kind of protest outside of the front of a person's house, in any circumstance whatsoever, seems to be an equally disproportionate argument.

Mr Welch: I would agree broadly with Eric on that point. Dealing first of all with the protest on Harriet Harman's roof, I have not come with my statute book with me, but it strikes me that it may be aggravated trespass anyway, so a criminal offence under the Criminal Justice and Public Order Act, but I may be wrong on that. Protests outside people's houses: clearly the existing law, section 14 of the Public Order Act, would allow for restrictions to be put on that if it was seriously disruptive, and that, one would have hoped, should be sufficient, and where it is not, then this may be one of the cases where the Protection from Harassment Act does have a role and a court in making the assessment of whether there is harassment would have regard to the fact that this was happening outside a person's home and would have regard to the fact that the object of the demonstration's Article 8 rights were engaged and hopefully, that would, in extreme cases, allow for a proper balance to be struck between the interests of the homeowner and the people seeking to demonstrate outside. But if I can broaden this out, I think there is a much wider problem with demonstrations on private property, and that is because now quite a lot of what most people might regard as our public space is privately owned, and that would seem to allow the owner of the private property to place restrictions on people's right to demonstrate. Two cases come to mind; firstly, Liberty was involved several years ago in a case brought by a community group in Washington New Town, Tyne and Wear, who wished to gather signatures on a petition. Their town centre and the surrounding area was effectively a large shopping mall, and when they put up a trestle table in the shopping mall and started to collect signatures, the owner of this private mall told them they could not do that there. This had been publicly owned land, it had been a new town set up with public money, but it was sold off, and the private owners were not prepared to accept this. We took the case to Strasbourg, the European Court of Human Rights. Unfortunately, I think in a bad decision, the court decided against us. It accepted that there could be positive obligations to promote freedom of expression, freedom of association, but in this case, the interference was not so grave that it was an interference with this group's Article 10 and 11 rights. The court said they could have sought support for their campaign in other ways, by going round knocking on people's doors. I think the principle is right, there are positive obligations, as we have already discussed, but the court was unrealistic about what other avenues were open to these people.

Q30 Chairman: Do you draw a distinction in those cases between land that was formerly public and has been developed into a privately run centre -- for example, in my patch, I have Brent Cross Shopping Centre, it has always been private land, if you want to go out and give out leaflets or get people to sign petitions in Brent Cross, is this an area that you put forward?

Mr Welch: I do not live near Brent Cross so I do not know how much a focal point of the local community it is, but I do not think actually the proper distinction is whether this was formerly publicly owned and now become private or not, I think the distinction to be made is whether this is perceived as community space, if you like, the space that people view as the centre of their community. Just to go to what I was saying, the other example that I have of sort of restrictions brought by private landowners on demonstrations is Canary Wharf. We were involved a few years ago in an attempt by people who wished to protest against low rates of pay for cleaners working in Canary Wharf, the union wished to organise a demonstration, it was made very clear to them that if they sought to demonstrate on land that was owned by Canary Wharf, they would injunct them to stop them doing that. As it was, there was a small area of land by Canary Wharf tube station which is owned by Transport for London, so they were able to demonstrate there. But that seemed to be another example of problems where vast areas of space that people perceive of as public, perhaps obviously wrongly, if it is privately owned, but if people perceive a space as public and people are being restrained from exercising their rights to demonstrate there.

Q31 Lord Lester of Herne Hill: I understand that free speech does not depend upon whether the censor is public or private, in other words, the BBC and a private television regulator, it does not make any difference if they unreasonably censor, I understand that, but is not the Chairman right that in the kind of situation of a shopping mall, the real problem is that our notion of what is a public body or a public authority is too narrow, so that if the body is concerned with providing the public with services or facilities, and that is its business, I think what you are saying is that it should be treated as public for the purpose of its obligation to facilitate free speech or assembly and so on, and that the real problem is the narrow approach to public authority, like the YL example.

Mr Welch: I think you are right, but it is a sort of application of that problem in a very specific sphere. The trouble is, in terms of Convention jurisprudence, the case I am referring to, the Appleby case, the one about Washington New Town, probably would go against us on that, but what I am trying to suggest is that applying those principles in this context of demonstrations in private spaces, I would hope we should be able to develop some notion of quasi public space, I think was the term we tried to suggest in the Strasbourg case. There are places that may well be publicly owned but they are of such significance for the community that lives round them, the community of which they are the centre, that they should nonetheless be viewed as public spaces for the purposes of demonstration and indeed for other purposes as well.

Dr Metcalfe: There was in fact a line of US Supreme Court authority supporting the view that if you had made your private property available to all comers, such as in the shopping mall, then it should be treated as being public for the purposes of the First Amendment. Unfortunately, that line of authority was reversed subsequently by the Supreme Court and so no longer holds, but I think in our view certainly the principle is sound and we agree with what James is saying.

Q32 Chairman: To give you one more example before we go on from this, which is a hybrid between the home and the shopping mall, a gated housing estate, and you want to go and collect signatures on a petition or you want to go and leaflet in there with your protest leaflet, should the freeholders of the gated estate allow you even to do that or should they have the right to refuse you access?

Dr Metcalfe: It depends upon the terms on which they give access. If the gate is always open, then arguably it should be treated more as a public space. If the gate is normally shut and people are only allowed in with an access code, then arguably they should not be required to give you space. If you like, there is an analogy with rights of way; if I have always allowed people access on to the housing estate, there are normally no restrictions, but it is technically private property, then it should not be for me to prevent people going on to the property, simply to prevent protests. On the other hand, if the gated community always has its doors shut, then clearly that is an attempt to maintain the area as private, so I am not creating a right of way, and I am not creating an expectation that the area is in normal terms public. I agree, and I would make this clear, that a private dwelling, a person's home is entitled to superior protection, in that any right of lawful assembly nearby has to be very much attenuated to respect a person's private dwelling place, but I think the points in our written evidence, the concerns we express about the Protection from Harassment Act and so on, are directed very much about the reliance upon what James has identified as quasi public spaces, areas in Canary Wharf which although are privately owned are in very many respects public spaces.

Q33 Lord Bowness: Chairman, can I just follow up? Just following your argument through about gated communities, that would be true surely of a lot of shopping centres where rights of way are either specifically excluded by notice under the Highways Act, or in fact, when the thing is closed, you cannot walk through it.

Dr Metcalfe: Yes, but that would then permit you to go in during the day. If I wanted to go to Brent Cross Shopping Centre and distribute leaflets during the day, should I be required to leave simply because the area is privately owned?

Q34 Lord Bowness: Yes, I did not really want to get into that, Chairman, I think it is just that the analogy being drawn was a bit flawed, because there are lots of roads that are maintained as private and public access is not acquired because they are closed the requisite number of times of the day in the year or regularly, but when they are not actually closed, you can walk through as if it is a public highway, so it is a distinction which I think would be very difficult to draw.

Dr Metcalfe: It is a very crude analogy with rights of way and I am obviously keen not to press it too far. Certainly if the shopping centre is not open, you are not entitled to break in to distribute leaflets. I am suggesting that insofar as the shopping centre is being treated as a public space during the day when people are free to come and go and visit shops, in the open areas between the shops, it seems to me that there must be a presumption that that is a public space. It is not to say that it cannot be displaced in certain circumstances. As you say, most private rights of way have a sign somewhere which indicates that no public right of way is being created.

Chairman: I think we need to move on.

Baroness Stern: Am I allowed to ask a supplementary on this, or do you feel we have gone far enough on this?

Chairman: We have a lot of ground to cover, a lot to get through.

Lord Lester of Herne Hill: Could I just ask whether the two organisations could give us a supplementary paper, just telling us how you deal with the private space issue that you have been asked questions about, with the kind of criteria that are reasonably certain, so we can consider them, because having heard you, I am not really clear, it is probably my fault. If we could get a further paper from both of you, that, I think, would be a helpful thing to do.

Q35 Baroness Stern: Can we move on, to my regret, as it happens, to talk about the current law and what you might feel was not appropriate in it. I have two questions, and I am going to put them both together, because they are part of a package. The first question is that you both suggest in the very helpful papers you submitted that the existing law has a deterrent effect on the right to protest or on free speech. Could you tell us which powers you think are the most disuasive on people wishing to exercise these rights? You have indeed given us some examples, but it would be good if we could answer this question as one. The second question is: you, as well as we, at the time of the passage of the Serious Organised Crime and Police Act, expressed concerns about human rights compatibility, and your evidence suggests that since then, these concerns have been borne out in practice, so it would be helpful to have some specific examples of where the Serious Organised Crime and Police Act has failed to safeguard protest and free speech rights. I think we might be needing to be a little bit more constrained.

Mr Welch: Can I just say, on what the most disuasive aspect is? I think, taking a broadbrush approach, it is the imposition of criminal sanctions if you get it wrong. That applies under the motion for designated area around Parliament, it applies in relation to public demonstrations, public possessions under the Public Order Act. I think we would accept that there should be a requirement or there can be justification for asking people, certainly in relation to moving processions, to give notice in advance of your intention to do so, because obviously that is more potentially disruptive of the lives of others than static demonstrations, but I think when you throw in a criminal sanction as a penalty for getting it wrong, that is the thing that is likely to have the most disuasive effect, the most chilling effect on people's right to protest. So if you asked one thing, that would be what I would say. In relation to the restriction on protests around Parliament in the Serious Organised Crime and Police Act, I think it is an example, if you like, of a measure that has been brought in to control protest that simply was not accepted by the people it was aimed at, and it has therefore caused a lot of trouble, because people have sought to challenge it, people have sought to mock it, obviously Mark Steel organising all sorts of protests in Parliament Square. I think it is an example of how dangerous it is, if you like, to interfere with protest, because protest is a matter which to work properly depends to a very large degree on consensus. It has to be accepted, I think, by a very large proportion of the population what the rules are, and I think by and large, subject to what I have already said about the imposition of criminal sanctions under the 1986 Act, that the 1986 Act did however set out a framework that everybody understood, and the problem with the restrictions on demonstrations around Parliament was that it interfered with that consensus, it changed the balance, it imposed restrictions and requirements on people that people felt were unjustified, and people have balked against it. As a result, there have been prosecutions which I would say, and I acted for Milan Rai in his prosecution, it just simply was not necessary. He was somebody that was prepared, and always had given notice to the police when he intended to demonstrate, but he balked at being required to do so, so he stood up, he took a stand, he ended up being convicted. It is simply disproportionate in these circumstances to impose those penalties. I think it would be much better if we reverted to the situation as it was before SOCPA was passed, dealt with Parliament in the same way as any other part of the country, I think people would accept and understand that, and the consensus that we need to have for demonstrations to operate properly would be restored.

Q36 Baroness Stern: Could you just say what happens if you get it wrong?

Mr Welch: Well, both in relation to a failure to give notice of a moving demonstration under section 11 of the Public Order Act, and in relation to a failure to comply with all the requirements required for a demonstration in the designated area around Parliament, if you get it wrong, you can be prosecuted, and fined, I am not too sure I can remember exactly what the level of the fine is, but a fine and possibly imprisoned as well.

Q37 Dr Harris: You spoke to the Public Order Act 1986; there was some Parliamentary debate I was involved in recently where it was asserted by a number of Parliamentarians that it was being overused by the police and suppressing free speech. This was in the context of incitement to homophobic hatred, but the examples used were not of those provisions, which had not been formed, but of other provisions, interviewing Iqbal Sacranie and stuff like that. I wanted to ask you to what extent do you think this impacts on protest, whereby otherwise legitimate protest might be found to be outside the law because the police arrest someone or stop them under the Public Order Act on the basis they are causing distress and alarm to other people?

Mr Welch: Presumably you are talking about section 5 of the Public Order Act?

Q38 Dr Harris: Yes.

Mr Welch: I think Eric touched earlier on on the recent case of a young man who was protesting outside the headquarters of the Scientology group in London, and he held up a poster calling them a cult, and was threatened, although the prosecution backed down, but he was threatened with prosecution under section 5, for saying something presumably thought to be insulting. I think this goes back to what I said earlier --

Q39 Dr Harris: Insulting? That is not the terms of the statute, is it?

Mr Welch: "Threatening, abusive or insulting words or behaviour". Insulting is, if you like, the least mischief that it seeks to address.

Lord Lester of Herne Hill: Insulting, but likely to stir up a breach of the peace.

Q40 Dr Harris: Let me give you another example. I was on a demonstration in Trafalgar Square in support of free speech at the time of the Danish cartoons, so it was defending the people who were doing cartoons. It was all approved, it was in Trafalgar Square, it was not in Brick Lane. A couple of people there were wearing T-shirts with some of the cartoons on, on a demonstration for free speech and free expression, and the police arrested one of them because they presumably had had a complaint or felt they had had a complaint that it was causing distress and alarm, in a big demonstration about free speech. I mean, so that was a real problem, because that meant in the future, people might not feel they are able to protest in favour of free expression, when it is threatened by people saying they are insulted. It is a vicious circle, in a sense.

Dr Metcalfe: It blends over into the pure freedom of expression issues, when you are talking about wearing T-shirts, it is not harm caused by the assembly as such, it is simply the harm caused by the public making of the statement by wearing a T-shirt. You have similar issues around the significant overpolicing of the Chinese Premier's visit a couple of years ago, when placards protesting against Chinese policy in Tibet and so on were taken down by police. There were significant efforts taken to prevent that protest being visible to the passing car.

Q41 Dr Harris: But that is separate, is it not? Because the case I am talking about, someone may have said, "I am upset by this, I have a right not to see someone wearing a representation of the Prophet, arrest that person"; that is one case. In the other case, there was not even that basis, presumably, was there?

Dr Metcalfe: I am still unclear, several years afterwards, as to what exactly the police basis --

Q42 Dr Harris: What did the police say their basis was for removing placards that took one view in a global political issue?

Mr Welch: I do not know what the basis was in relation to the Chinese demonstration, but I think probably section 5. The definition is "threatening, abusive or insulting words or behaviour [likely to cause] harassment, alarm or distress". What is insulting? We would say that insulting should be given a very restricted meaning, if not to the point almost of restricting it out of existence in this context, because otherwise it is going to restrict people's right to express their views in as forceful a manner as they think appropriate, but the problem is the police, when faced with a demonstration, have to make their own decision as to whether something is insulting. What I suspect happens in these types of situations is that people will be bending the ear of the police, saying, "Look, you cannot allow him to say that, you cannot allow him to say that, because we find it insulting". There undoubtedly is a role for section 5 of the Public Order Act, but it should be given a very, very restrictive interpretation.

Q43 Dr Harris: There is a rumour the police have guidelines on this. They cannot have been reading them in Oxford, because at that Oxford Union debate, there was a placard saying, "Kill Tryl", the name of the Oxford Union President, and that could be considered both insulting and threatening, and that was left alone because it was with an anti-fascist. Are there guidelines?

Mr Welch: I have put in a Freedom of Information Act request asking for the police's guidelines in relation to the policing of Scientology protests. I will let you know if I find something out.

Dr Metcalfe: We have certainly had meetings with ACPO in relation to the guidelines in relation to section 44 powers, so they are or have been working on guidelines for stop and search. I would be very surprised if they do not have similar guidelines in relation to these public order powers.

Chairman: We will have to ask ACPO and find out if they have some guidelines. Lord Bowness?

Q44 Lord Bowness: Thank you, Chairman. I think much of the area of the question I was going to ask you about, specific concerns about Parliament, has been dealt with, and I do not think we want to dwell on our own concerns too much. The only question I would ask you, which arises out of this particular question, is: how do you deal with the problem of access? Personally, I am not so concerned about noise and whether you sell tickets from a pavement office to accommodate half a dozen instead of one, that is almost by the by, but access, I think, is actually a real problem, in that malevolent demonstrators, it is perhaps a bit far-fetched, but not impossible, could have an interest in certain circumstances at certain times in preventing the access to Parliament by Members if they were going to vote. That is, after all, what the sessional orders are all about. How would you deal with the question of keeping access to Parliament free, bearing in mind you were saying you did not really see any need for anything different from the existing legislation, or do you think that the existing legislation is sufficient to allow both the protest and the access?

Dr Metcalfe: I think it would be perfectly appropriate, in times of very vigorous protest, for example, to establish a cordon to ensure that the driveways around Parliament and the public access, the footpath on the Parliamentary side of Parliament Square, remains open.

Q45 Lord Bowness: But with due respect, forgive me interrupting, I agree with that, but it is actually not quite as simple as that, is it? It is no good putting a cordon around the gates, if you cannot come over Lambeth Bridge or whatever, whether you are on foot or in a vehicle, it is not just keeping the gates open, is it? It is people actually getting to the gates.

Dr Metcalfe: Right. I think it is difficult to discuss outside the context of a particular case. You could, in any large scale protest, always require at least one viable route or more than one viable route, that seems to me the kind of manner and form restriction that you would impose on any large scale gathering, simply in order to manage a large scale protest successfully. It certainly does not seem to me a basis for the kind of blanket restrictions that always seem to be bandied about.

Mr Welch: I am not sure that the provisions of the Serious Organised Crime and Police Act add anything to the powers which would exist under section 14 of the Public Order Act anyway. The power to impose restrictions under the two provisions are very similar, slightly wider in relation to under the Serious Organised Crime and Police Act, but if there were a large gathering of people outside the Houses of Parliament, and they were blocking access to Peers and Members of Parliament, access to the building, then the police could impose a restriction at that time under section 14 of the Public Order Act to allow access. The practicality is whether the crowd would actually obey, but I am not too sure that you need the whole edifice of SOCPA in order to ensure that that will not happen.

Lord Bowness: You are saying that the present arrangement is satisfactory, that was really just the answer, thank you.

Q46 Lord Morris of Handsworth: As you know, there are certain fixed structures, installations, which provide for our way of life ongoing, such as electricity pylons taking supplies to hospitals or masts which support the emergency services, such as that. Should certain geographical areas, areas like around nuclear and military facilities, or indeed even Parliament, be treated differently from the rest of the country, and if so why; and if not, why not, if you do not support that?

Mr Welch: I presume you are talking about the provisions, again, under the Serious Organised Crime and Police Act that allows certain sites to be designated? We had very considerable concerns about those measures, because we were not convinced that they were necessary, or at least that they were necessary as regards areas other than nuclear power stations, I think nuclear power stations may be a particular case, but our understanding is that these measures have been used largely to restrict demonstrations around various military bases. Indeed, looking at the law this morning, I noticed that an amendment seemed to have been added into the statute to make it clear that a military base includes the area where the gates would close. It does seem to be aimed at a particular type of demonstration which, while no doubt for the people working in these bases it is rather vexatious and annoying to have people demonstrating outside, looked at from the other side, I think demonstrations against bases, a lot of people have very strong views opposing various types of military action, and they should be entitled to exercise the right to protest. I think criminalising somebody for putting a foot across a line is a bit absurd. If people break into bases by using wire cutters to get into the bases, then they are committing an offence of criminal damage and can be prosecuted for that. I do not see what these particular measures added to the existing criminal law.

Q47 Lord Morris of Handsworth: Well, some of the installations preceded the legislation to which you have actually referred. What I am seeking to establish is whether you think that there should be any sort of protection whatsoever given to some of these installations that I have talked about; radio masts, which support our communications service for the emergency services, or indeed support some of our institutions like hospitals. In your view, should they be just treated like normal, with no designated protection at all?

Mr Welch: As I say, I do not see why it is necessary, because assuming these places are surrounded by fences and ---

Q48 Lord Morris of Handsworth: Hospitals are not.

Mr Welch: Hospitals are not, but is there any evidence that people are actually seeking to go into hospitals in order to protest and cause damage? Protest, I think, in a hospital, I do not really see what the problem is, unless it is obstructing the provision of medical services, but I have not really heard that that is a problem.

Q49 Lord Morris of Handsworth: Nobody is saying it is a problem, what we are doing is seeking your organisations' views as to whether these areas should be treated just like any other areas, or whether they should have some measure ---

Mr Welch: I think existing criminal law is apt to deal with any problems that arise.

Q50 Lord Lester of Herne Hill: Again, I am always searching for a bright line or a criterion. You accepted before that a private home should be treated differently from a public space. Why should not similarly a bright line be drawn between a nuclear installation and others or military facilities and others? I do not understand --

Mr Welch: I accept essentially that particular protection may well be necessary for nuclear installations.

Q51 Lord Lester of Herne Hill: What is the difference between nuclear and others?

Mr Welch: I think if something goes wrong ---

Dr Metcalfe: A nuclear power station does not have any personal feelings to protect if you hold a public protest outside it. The reason the law gives special weight to my home is because the law recognises that I have a fundamental right of respect to privacy. No intrinsic harm comes to a nuclear facility if a peaceful protest is held outside it. I agree completely with James that the criminal law already provides more than sufficient protection; you know, it is an offence to cause criminal damage of any kind. Presumably, these nuclear power stations have fences and security guards and all the rest. There has never been any suggestion that the criminal law is inadequate to deal with it. We are talking about a measure that is aimed primarily at people gathering outside protesting. The Article 8 private life considerations that arise in relation to a person's home simply do not seem to me to arise, particularly the presence of a military base, for example, or nuclear power, issues about which people have strong feelings and a legitimate point of public discussion. So unlike a private home, it seems to me perfectly legitimate that people should be entitled to hold peaceful protests outside them, and if they go beyond peaceful protests, the criminal law is fully capable of punishing such activity. I think the particular problem with section 128 of the Serious Organised Crime and Police Act is it is open to the Secretary of State to designate any site in the interests of national security. There is limited protection, in that the Attorney General's consent is required to bring a prosecution, but it is a perfect example of what we have indicated post the Human Rights Act of legislation not containing any specific safeguards in relation to necessity. The common argument of Parliamentary draftsmen is of course any powers have to be exercised consistently with Convention rights and interpreted consistently with Convention rights, but there is nothing in section 128 which requires the Secretary of State to consider whether it is necessary to designate a site. She only has to consider whether it is appropriate to do so.

Q52 Lord Lester of Herne Hill: Why should the state not have an exclusion zone around a nuclear power station on the basis that it is too late when you have people close to it demonstrating who suddenly start getting through the wire, and therefore, there will be a tight exclusion zone, that will be an area where you are not allowed to demonstrate?

Dr Metcalfe: There is certainly nothing wrong with the Secretary of State taking a decision that it is necessary to do so on those grounds, because they think the risk of a protest turning violent and thence entering and compromising national security, but the point is that no judgment is reflected in the statute about that necessity. It is simply open to the Secretary of State to designate an area as he or she deems appropriate. Without any kind of assessment, it seems difficult to justify, but that is the terms of the law as it stands.

Q53 Lord Morris of Handsworth: Some witnesses have suggested that the designated area provision should be repealed, and that is the section you have talked about in the Serious Organised Crime and Police Act. Do you agree that it should be repealed, and would the Public Order Act be sufficient to provide the safeguards that are necessary?

Dr Metcalfe: We believe so, yes.

Mr Welch: Likewise.

Q54 Lord Morris of Handsworth: You both support repeal?

Dr Metcalfe: Yes.

Q55 Lord Morris of Handsworth: And you both believe that the Public Order Act would suffice?

Mr Welch: The Public Order Acts and other aspects of the criminal law.

Dr Metcalfe: The Terrorism Act 2006 similarly contained a certain number of provisions enhancing security at certain key sites, power sites and so on, so I think section 128 adds nothing.

Q56 Baroness Stern: Could we go on to have a quick look at this question of the legislation being overbroad, which we have already touched on? You have both expressed concerns about the overbroadness, which leads to broad discretion being given to police officers, and JUSTICE suggested that clear guidance was needed. I think our question is: would guidance alone solve the problem of overbroadness or is more than that required?

Mr Welch: I think our position is that if you are going to ensure Convention compliance, it is the legislators that should do that at the outset. You should avoid passing legislation which is so broad that it could be applied in a non-Convention compliant manner. It is much better that narrow legislation is passed in the first place, rather than the police and other public bodies, who need to make a decision very quickly, having to decide themselves at the time whether they are acting in a Convention compliant manner or not.

Dr Metcalfe: Yes, I would agree with James. In some ways, we refer to guidance, but we also referred to actually legislative guarantees. Say, for example, where you are legislating in an area that affects the right to freedom of assembly, it is appropriate to make clear that this does not, for example, impinge upon the right to peaceful protest. I think a very good example of this is the definition of terrorism in other common law countries such as Australia, Canada and New Zealand, which makes clear that terrorism is deemed not to include peaceful protests or industrial action. Another example of a legislative measure that can be adopted is confirmation that peaceful protest in and of itself cannot constitute anti-social behaviour or harassment, that would be a very good safeguard. Also directing police when they are exercising stop and search powers, dispersal directions and so on, not to restrain peaceful protest. These are examples of legislative safeguards which we would like to see.

Baroness Stern: That is very helpful, thank you.

Q57 Dr Harris: I wanted to ask briefly this point, the Government says that everything is okay in ECHR terms because the public authority, including the police, cannot act incompatibly. Is that an adequate provision?

Dr Metcalfe: Unfortunately, it is not, and I think it goes to a combined problem under the Human Rights Act, which we wholly support, under the terms of the European Convention, which allows considerable latitude to public authorities to act for legitimate purpose, which includes, for example, public order and national security and prevention of crime, and so you end up with a situation such as in section 44, which was considered by the House of Lords in the Gillan case, where the House of Lords essentially says that so long as a policeman is not acting arbitrarily, then the exercise of his discretion will be lawful.

Q58 Dr Harris: Which case was that? I did not catch.

Dr Metcalfe: This was about the use of stop and search powers, Gillan. This was considered in relation to the arms fair. What you end up with is a situation in which ex post facto judicial review of the police's decision is more or less deemed to be compatible, unless you have some clear evidence that the policeman was acting with some illegal purpose in mind, say for example racial prejudice. Given the evidential challenge of showing that any in total stop and search was motivated by -- unless the policeman happens to admit openly to the person that they are stopping that the reason that they are stopping them is because of their ethnicity, then you are never really going to be in an effective situation to challenge the police suspicion in the first place, when you have a legislative provision that sets the bar so low. I think it is quite interesting to compare the judgment of the Divisional Court in the Gillan case, in which they relied upon Lord Carlile's 2001 report into the operation of the Terrorism Act, in which he said, "No difficulties have been drawn to my attention in relation to the exercise of section 44, I am satisfied that the use works well and it is used to protect the public interest." By 2006, Lord Carlisle said, "Difficult problems arise in connection with the use of section 44. It should never be used where there is an acceptable alternative under other powers, and while there was continuing work to improve the way in which it is being used, it is still used too much." So in many ways, what we find is the courts finding no difficulty with the operation of section 44, on the basis of Lord Carlile's findings in 2001, when by 2006, his own position had changed considerably.

Q59 Dr Harris: Yes, and his 2008 report which we have just got says much the same, I see. While we are on section 44, in both your written submissions, you have identified a number of pieces of legislation which are being used not for the original purpose, but to police protests. Section 44 is one, I think, it was not the original point of it. Can you think of others and can you set out a little bit the implications of that?

Dr Metcalfe: Well, the anti-social behaviour legislation, you have the example of the protests over the Sikh play in Birmingham, in which the protests were in some kinds stepping beyond their bounds, intruding into the lobby of the theatre. In that situation, there was reliance upon, as I understand it, and James will correct me if I am wrong, the anti-social behaviour legislation, to prevent alarm and distress and so on. It seems to us that this was an improper use of the legislation; it is perfectly right for the police to have taken steps to prevent the protest from overstepping its bounds, in situations where people were prevented from going to see the play, but we question whether anti-social behaviour legislation was ever intended to address the right to protest in this way.

Mr Welch: We have already touched on section 5 of the Public Order Act, which I think can be used in a way which we would say illegitimately stifles protest. The other provision I think I would like to add to the ones that Eric has already mentioned is the Protection from Harassment Act, although earlier on I conceded that it may well be appropriate for that to be used in the context of demonstrations outside people's homes. There have been instances that we have been aware of, and cases that have gone through the courts, where large corporations have been using the Protection from Harassment Act in order to try and stifle protests against activities of theirs that people object to. Perhaps it is not so much a problem with the legislation but the way it is applied through the court processes that is the problem, because it is possible, there have been cases where companies have gone out and got ex parte injunctions, so injunctions without notice being given to the respective respondents, granted in a way that binds not just the named defendants but loads of others besides, people who are aware of the injunction -- there was one in your constituency or very near your constituency.

Q60 Dr Harris: Radley Lakes.

Mr Welch: Indeed, and these are obtained on an ex parte basis.

Q61 Dr Harris: The application was to ban any encampment, any tent erected anywhere in Abingdon essentially.

Mr Welch: An overbroad injunction was granted, binding on anybody who had notice of it, and the trouble was nothing could be done about that until at least the return date on the injunction, by which time the company, if you like, had bought itself space to do the things that it wanted to do. There was not any immediate redress that the protesters could seek, we had difficulty getting legal aid in order to take any action, in order to try and get the injunction overturned very quickly, so it was being used in a very heavy-handed, disproportionate manner with the undoubted aim of inhibiting what should have been lawful protest.

Chairman: Thank you very much. We have come to the end of the questions we were going to ask you, there may be one or two things we think of afterwards which we might write to you about, and you have promised a memorandum for Lord Lester. Thank you for your evidence.