Dominic Grieve QC is a former Attorney General and a former MP for Beaconsfield.
In my last five years in the House of Commons, I had a room giving straight out onto Parliament Street. As a result, the sound of every demonstration in Parliament Square, often accompanied by the use of amplification equipment could be heard rather too clearly and on one occasion I was forced to retreat to the Commons Library giving on to the Thames where the noise was inaudible.
It is to address this and the problem of “disruptive” demonstrations generally, that the Government is pushing through clauses in the Police, Crime and Sentencing Bill to give the Police more powers to cover excessive levels of noise and exercise more control over demonstrations by imposing specific conditions on each with increased sentences for their breach. It also gives unusual new powers to the Home Secretary to be able to decide what constitutes “serious disruption,” a term that has been in use since the Public Order Act 1986, but which hitherto has been left to the Police to apply operationally and our courts to interpret if the operation of that discretion is challenged.
Tempting as it may be for Parliamentarians to want to stop disruptive demonstrations, these changes are, as drafted, a potential threat to the right to peaceful protest which is an essential element of our freedom and democracy.
While demonstrations may sometimes be inconvenient, that right needs to be upheld. Giving such a draconian discretionary power to the Home Secretary is excessive and wrong. It probably won’t work anyway as it will be open to legal challenge itself as it is an administrative act capable of being reviewed in court.
The right to freedom of expression and the right of assembly are protected both by our historic common law traditions of liberty, as well as in the Human Rights Act that, in part, derives from them. A balance has inevitably to be struck between the right to peacefully demonstrate and those who may be adversely affected by the demonstrating. The Police may not always get that balance right and they are sometimes criticised by all sides. But by international standards, they are exceptionally good at observing this balance and acting proportionately both to protect the public wanting to go about their lawful business and avoiding unnecessary confrontation and the potential criminalisation of law-abiding individuals who want their voice of protest to be heard.
The Bill as passed by the Commons, is now about to be scrutinised in the House of Lords. Sensible amendments have been tabled to moderate or remove the offending clauses. These include removing the Home Secretary’s proposed power to both define the powers of the Police and the limits of the right to protest. Others also require proof that persons attending a demonstration know or ought to have known particular conditions have been imposed in relation to it before they can be criminalised for breaching them.
These amendments appear sensible, and it is to be hoped that they will be passed.
More importantly, however, is how the Government responds when the bill returns to the Commons. Responding positively to the disquiet that these measures have raised would be a sign that the government understands, as it claims to do, the need to uphold civil liberties and to engage in dialogue on how best to manage demonstrations for our collective benefit rather than just imposing solutions that may prove to be ineffective when challenged.