HC Deb 13 July 1977 vol 935 cc533-42

(1) It shall be lawful for a person or persons to stand upon or walk along the highway and in the course of doing so to hold notices to offer written materials to passers by and to address passers by for the purpose of peacefully communicating information or views to other users of the highway provided no unreasonable obstruction or inconvenience is caused to other users of the highway or the occupants of premises adjacent to the highway.

(2) A person shall not be guilty of any criminal offence by reason only of the fact that he is acting in a manner provided for in subsection (1) above.—[Mr. George Cunningham.]

Brought up, and read the First time.

Mr. George Cunningham

I beg to move, That the clause be read a Second time.

I shall be brief. The new clause relates to the right of a person to demonstrate upon the highway when he is not doing so in pursuance of a trade dispute. In fact, a person—at least this would be the commonly accepted view of the judiciary—does not have the right to demonstrate upon the highway except in pursuance of a trade dispute under trade union legislation, which has been spoken of a great deal in the House recently.

Many people demonstrate upon the highway with the permission of the police. No action, whether criminal or civil, is taken against them. I thought that it was significant that when the Home Secretary was making his statement on Monday of this week about Grunwick he said: If people want to march in large numbers in this society, there is no way of stopping them. He also said: Those who wish to march peacefully to show their strong views have every right to do so."—[Official Report, 11th July 1977; Vol. 935, c. 30–1.] I do not know whether the Home Secretary thought that he was talking of a moral or of a legal right. If he thought that he was talking about a legal right, he was expressing a view that would be shared by Lord Denning but not one that would be shared by most of the rest of the judiciary.

8.45 p.m.

The question that arises here is whether one ought to have the right to march and demonstrate on the highway in pursuit of purposes that have nothing to do with a trade dispute. I raise this issue because it was in my constituency in 1974 that the last famous case originated, when a number of my constituents chose to picket on the pavement outside the premises of an estate agent, protesting against the actions of that estate agent and their social consequences. They did so with the full knowledge of the police, who were present for most of the time, and they did so absolutely peacefully. There was never any violence at that location.

However, although the police took no action, the estate agents did. They applied for an injunction and sought damages for nuisance and also. I believe, for libel. The application for an injunction went to the High Court and later to the Court of Appeal. At the High Court the judge assumed that the law was what most lawyers have—I understand—always believed that it was: that a person has the right to pass and repass on the highway but does not have the right to use it for any other purpose. Later the case went to the Court of Appeal and Lord Denning, in his judgment in that case, made some remarks that I think are worthy of quotation. Referring to the decision in the High Court, which concluded that the right did not exist, Lord Denning said: This ruling is of such significance that I do not think it should be allowed to stand. I see no valid reason for distinguishing between picketing in furtherance of a trade dispute and picketing in furtherance of other causes…I do not think there is any distinction drawn by the law save that, in the case of a trade dispute, picketing is governed by statutory provisions and, in the case of the other causes, it is left to the common law…Picketing is lawful so long as it is done merely to obtain or communicate information, or peacefully to persuade; and is not such as to submit any other person to any kind of constraint or restriction of his personal freedom". He went on to refer to the important historical place that demonstrations have had in establishing other rights in our history. Those remarks, too are worthy of quotation, and I shall do so as briefly as I can: Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority—at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. Most notable was the demonstration at St. Peter's Fields, Manchester, in 1819 in support of universal suffrage. The magistrates sought to stop it. Hundreds were killed and injured. Afterwards the Court of Common Council of London affirmed 'the undoubted right of Englishmen to assemble together for the purpose of deliberating upon public grievances'. Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern. As long as all is done peaceably and in good order without threats or incitement to violence or obstruction to traffic, it is not prohibited…I stress the need for peace and good order. Only too often violence may break out: and then it should be firmly handled and severely punished. But, so long as good order is maintained, the right to demonstrate must be preserved. It was therefore the view of the Master of the Rolls, Lord Denning—who is not a raging Socialist—that not only should the right exist but that it did exist. However, he was outvoted by the other two members of the Court of Appeal on that occasion as to whether that right existed. All these remarks were obiter. However, he clearly stated his view that the right should exist.

The situation now is most unsatisfactory. People demonstrate on the highway and meet outside embassies, Government Departments, grocers shops and what-not. It happens every day of the year in thousands of places up and down the country. It is not a criminal offence. At least, after the passing of this Bill it will not be a criminal offence. At the moment it is a criminal offence to arrange to do it—not to do it but to arrange to do it, because one is conspiring to do an unlawful act. That is being put right in the Bill.

It is unsatisfactory that people up and down the country are doing these things in large numbers, often shepherded by police officers in the doing of them, and liable at least to a civil suit for damages in respect of those actions if anyone cares to take it. We must tidy up that situation.

Secondly, it is undesirable that the right to do these things should be subject to police approval. If we wanted to institutionalise that approval, as we do in the Public Order Act, that might be different, but at present it is a police approval which is informal and localised and subject to no code. Therefore, that is undesirable.

I want to see us establish it as the right of a person, as Lord Denning has said, to demonstrate on any public highway, so long as he does not cause inconvenience to other users of the highway and so long as people do not by their presence in very large numbers impose on those other users the fear of violence. That is a worthy objective, which is supported by one of our most eminent and respected lawyers. I hope that the Government will say that they accept the principle in this proposal and that they will find some means of giving effect to it in some legislation in the not-distant future.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)

I agree with everything that my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) said about the right to demonstrate and picket peacefully. I yield to nobody in my regard for this important civil liberty matter.

However, my hon. Friend's new clause has certain defects. He mentioned the existing law. If it has one virtue, it is that it is very simple—

Mr. Greville Janner (Leicester, West)

Simply awful.

Mr. Davidson

—if not entirely satisfactory. I go further, to please my hon. and learned Friend the Member for Leicester, West (Mr. Janner), and say that it is far from satisfactory

. The existing law is to be found in Section 121 of the Highways Act 1959, which simply states: If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he shall be guilty of an offence". Sometimes simple words in a statute lead to confusion. The word in that Act that has given rise to great confusion is "obstruction". There is the question when a particular act constitutes obstruc- tion. I think that my hon. Friend is trying to clarify what "obstruction" is and to make it much clearer to the person who wishes to exercise his right to picket in which circumstances he will be creating an obstruction. I think that that is why he uses the word "unreasonable".

My hon. Friend mentioned the Prebble case. He has mentioned it to me over the years and we have had long discussions about it. I agree with his view of it and have agreed with that view for a long time. I do not think, however, that he ought to over-exaggerate the significance of the Prebble decision. It was only deciding an interlocutory matter—whether an injunction should be granted —and the substance of the law was not considered by the lower court or by the Court of Appeal.

I think my hon. Friend will agree with me when I say that since the Prebble case—and, indeed, before that case—there has been no great difficulty. Most of us on both sides of the House have been involved, I suppose, in demonstrations of one sort or another. Most of us have given out leaflets on the footpath, whether objecting to a zebra crossing being built or perhaps on some more politically motivated matter. None the less, we have all indulged in it.

One of the difficulties with my hon. Friend's new clause is that it does not distinguish between non-industrial picketing and industrial picketing. In addition, it does not amend Section 121 of the Highways Act 1959. If the new clause were passed we should have both provisions—the new clause governing picketing and also Section 121. That would cause even more confusion than my hon. Friend claims is caused by the present law.

As my hon. Friend knows, my right hon. Friend the Secretary of State for Employment announced this week that he would be examining the law concerning industrial picketing. I give my hon. Friend a similar undertaking. My right hon. Friend the Home Secretary is now considering the law concerning non-industrial picketing in the same manner and with the same sense of urgency. I hope my hon. Friend will accept my assurance that there is proper concern about the matter. I am certainly concerned about it and would like to help him. In view of that undertaking—

Mr. George Cunningham

May we take it that there is to be a review of industrial picketing, which will be the responsibility of the Department of Employment, that at the same time there will be within the Home Office a review of non-trade union picketing, and that: in the light of both reviews there might well be some outcome which will be common to both?

Mr. Davidson

That is exactly the position, and I certainly give my lion. Friend the undertaking.

Mrs. Elaine Kellett-Bowman (Lancaster)

I hope that the Home Secretary, when bringing in any further legislation or examining any subject, will not put further burdens on the police. However peaceful a procession may be when it is wandering down the highway, the police must always be there in relative strength in order to ensure that nothing other than peaceful persuasion or the thrusting of documents under people's noses takes place.

Mr. Davidson

That is exactly the sort of matter that ought to be considered. No one, I am sure, would suggest that it is easy to arrive at a definition which will protect the right of people to walk peaceably along the street and the right of people to demonstrate peacefully. These are exactly the matters that my right hon. Friend will be considering. I hope that at the end of the day, in both the industrial and the non-industrial areas, sensible legislation can be introduced.

Mr. Grieve

I hope that in this inquiry or review the Home Secretary will also have regard to the undoubted right of Her Majesty's subjects not to be stopped if they do not wish it, not to be spoken to if they do not wish it, and not to have their vehicles boarded if they do not wish it. I hope that he will have regard to the right of Her Majesty's subjects to go about their own business as they please, without embarrassment from other people.

Mr. Davidson

With great respect to the hon. and learned Gentleman, that is exactly what I said that the review would be considering. I should have thought that it was a matter of obvious common sense that such a review ought to consider matters of that sort.

9.0 p.m.

Mr. Greville Janner

If anyone wishes to demonstrate or to picket in this country at the moment, he does so entirely by courtesy of the police. This is not just a question of obstruction under the Highways Act. If he cannot be charged with obstructing the highway he can be charged with obstructing the police if the police ask him to pass along and he does not do so. The only way in which one can demonstrate within the law is to take a placard, remove oneself a reasonable distance from anything that one wants to influence and walk around in a brisk circle—providing that the police do not come along. If one demonstrates or pickets in any other way, one may be able to rely, if it is industrial picketing, upon one clause of the Employment Protection Act, but one is still liable to prosecution for obstruction if one stops or if a policeman considers that one should move along.

I congratulate my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) on his new clause, if only because it has produced an excellent and helpful undertaking from the Minister. I introduced a Ten-Minute Bill after the Islington incident. It went the way of all, or nearly all, Ten-Minute Bills, but it had the joy of all kites that sometimes they fly home in another direction. If this new clause is introduced in another Bill as part of a general review of picketing, it will have done a proper service.

I would add one warning. We can introduce whatever laws we like about picketing and demonstrations, but if they are not acceptable to the mass of the people for whom they are designed, those laws will be ignored. This is not a threat from a lawyer who is against the rule of law; it is merely a suggestion that we should not forget the lessons of the Industrial Relations Act—that one can pass laws banning anything one wishes but if people feel that the laws are unfair and that they are being trodden down, in this free country of ours they will rise up and ignore the law. If we wish the rule of law to survive and to be strengthened, we should be careful which laws we pass to regulate picketing and to place apparent restrictions on people's right to march or demonstrate.

I hope that we shall give people a right to stop, to talk, to hold up their banners, to attempt, as the Islington people did with the estate agents, to influence the public or foreign embassies and to hold up to the light of day injustices at home or abroad without the local police having to bear the responsibility of deciding on each occasion whether to permit them to do so. The law as it stands is wholly unsatisfactory. We must be careful that by changing it we do not make it worse.

Mr. Clegg

I had not intended to intervene, since I understand that the hon. Member for Islington, South and Finsbury (Mr. Cunningham) is likely to seek to withdraw the clause in view of the Minister's undertaking. I have been brought to the Dispatch Box by the speech of the hon. and learned Member for Leicester, West (Mr. Janner), who drew some rather wild conclusions. Following his argument, anyone who got a mob together to defy the law, no matter what their purpose—even if it were purely to cause mayhem—the law would not apply, so it would be broken and brought into contempt for almost any conceivable reason. I do not think that that is what the hon. Member for Islington, South was getting at.

There is great concern about picketing. To many people, it has become a dirty word, and Parliament must be careful how it handles the matter. Whether we have limitations or not, it certainly needs careful consideration. There is grave feeling in the country, as well as in this House, among those who are subject to picketing and those who want to picket. The Minister's suggestion that we should take a calm view is probably the best course that the House can adopt at the moment.

Mr. Mikardo

In one of my characteristic one-sentence, one-minute speeches I shall remind the House that by far the largest-ever example of demonstrations and picketing for a non-industrial purpose in my lifetime was the activities about 30 years ago of the Housewives' League, a front organisation of the Conservative Party. At that time there were no protests or expressions of solicitude for the police from any hon. Gentlemen, or, for that matter, any hon. Ladies opposite.

Mrs. Kellett-Bowman

Women are better behaved.

Mr. Mikardo

The hon. Lady should have seen them. She never saw them. She is too young.

Mr. Hooley

I am not concerned with the estate agents or the foreign embassies. They have plenty of money and are well able to look after themselves. I have taken part very often in handing out leaflets and in stopping people and talking to them on pavements during demonstrations against apartheid and other things.

However I am rather worried about the impact of this new clause on private residents living on a fairly busy road or corner who found that every Saturday there were demonstrators outside their homes causing a nuisance. Presumably such families would have no remedy. They could take civil action, but obviously that is something that cannot be done by every family in the country. It takes time and money, and by the time civil action was taken against one group, a man could be landed with another lot of demonstrators.

A person in this situation cannot go to the police and ask them to move the demonstrators on. The police would say that under the law these people were perfectly entitled to be there. Therefore I wonder whether this new clause, or something like it, might not be exposing perfectly innocent people to some form of inconvenience that they do not want, and against which they have no remedy at all.

I am worried that if we give blanket and indiscriminate power to demonstrate and hand out leaflets in this way, it could cause inconvenience to people whose homes are sited at particularly strategic places.

Question put and negatived.

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