§ 5 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur)
My Lords, with the leave of the House, I shall now repeat a Statement about the review of public order law which is now being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"The Government are today publishing a White Paper announcing the conclusions of the review, which was commenced in 1979, and which I have conducted in conjunction with the Secretary of State for Scotland. In conducting the review we have taken into account the lessons to be learned from the varying forms of major public disorder in recent 1277 years. We have also considered carefully the response to the 1980 Green Paper on the Public Order Act 1936 and related legislation, the report of the Select Committee on Home Affairs, Lord Scarman's report on the Brixton riots and the Law Commission's proposals for the codification of the common law public order offences.
"The rights of peaceful protest and assembly are among our fundamental freedoms: they are numbered among the touchstones which distinguish a free society from a totalitarian one. But these rights, fundamental though they are, have never been regarded as absolute.
"The European Convention on Human Rights, for example, in the article guaranteeing the right to freedom of peaceful assembly, recognises that it may need to be restricted by law for the prevention of disorder and for the protection of the rights and freedoms of others.
"Even so, any limitations on the rights of peaceful protest and assembly should be imposed to the minimum extent necessary to preserve order and protect the ordinary citizen. That has been our approach in this review.
"Most of the present law relating to these matters is either to be found in the Public Order Act 1936 or derives from the common law. The 1936 Act was passed to deal with a particular problem of the day: the threat to freedom posed by the fascist use of intimidation and violence. It is hardly surprising that since 1936 different problems should have come to the fore and the rights of the citizen should need protection from altogether different sorts of threat.
"None the less, the review has revealed no yawning gaps in the law. It is also important to bear in mind that even where there may be a theoretical case for change, there is no point in passing laws or conferring powers which are of no practical value because they are unenforceable. There are, however, a number of areas where the law can and should be extended and clarified, mainly in improving the opportunities for the police to try to prevent disorder or disruption before it occurs.
"To this end, the first proposed change is the introduction in England and Wales of a national requirement to give advance notice of marches, subject to certain exemptions for religious and traditional processions and those for which longer notice is not possible. A requirement of advance notice already exists in Scotland and certain other parts of the country and helps reduce the risk of disorder by giving the police and organisers time to make the necessary preparations.
"Under the Public Order Act the powers of the police to impose conditions on a march are confined to circumstances when serious public disorder is anticipated. We have concluded that the power to impose conditions should also apply where what is anticipated is a serious disruption of the life of the community or the coercion of individuals. There will, however, be the opportunity to challenge police conditions imposed on any of these grounds in the courts, and there will be no extension of the existing power to ban marches.
1278 "One of the major developments of recent years has been that the threat to public order or to the rights of the individual is nowadays often posed not by a march but by a static demonstration or assembly—whether it is a football crowd that has turned into a mob or a mass picket behaving in an intimidatory manner.
"The use of open-air assemblies is, however, so fundamental to free speech and the right to protest that we think it would be quite wrong to confer any power to ban them. But where such assemblies threaten to result in serious public disorder, serious disruption or the coercion of individuals we have concluded that it is right for the police to have the power to impose limitations on the number of people present, the location and the duration of the assembly. The imposition of such conditions would also of course be subject to challenge in the courts.
"The power to impose conditions would apply in the case of all types of assembly in the open air. We do not, for the most part, consider that there should be special limitations on particular types of demonstration, such as pickets or demonstrations by foreign nationals. It is both in principle and in practice preferable for the general law to apple, and we consider that the general changes we propose are adequate to deal with disorder and violence whatever its cause or source.
"One of the most objectionable assaults on the rights of the individual citizen is the use of intimidation against his person or property in an attempt to prevent him doing what he has a legal right to do or force him to do what he has a right to abstain from doing. Such conduct is already an offence under Section 7 of the Conspiracy and Protection of Property Act. But for this to be an effective remedy it is not sufficient for the police to bring charges after the event. They must be able to nip intimidation in the bud. We therefore propose that this offence should carry a specific power of arrest, and that the maximum penalty should be increased from three months' and £100 fine to six months' imprisonment or a fine of £2,000.
"I turn now to the common law public order offences. In England and Wales the Law Commission have recommended the modernisation of the offences of riot, unlawful assembly and affray. Subject to certain minor amendments, the Government propose to accept their recommendations for the new statutory offences of riot, violent disorder (the successor to unlawful assembly) and affray. These changes will not significantly affect the overall scope of the criminal law. But they will restate these offences in clearer, more modern language; they will introduce statutory maximum penalties and give prosecutors greater flexibility over the mode of trial, by enabling less serious cases of affray and violent disorder to be tried in a magistrates' court.
"The White Paper contains a number of other improvements to public order law, including some tightening up of the offence of incitement to racial hatred; but I have outlined the main proposals which will apply in England and Wales. Scotland already has some of the provisions we now propose for marches, including advance notice. The 1279 regulatory powers of local authorities there over marches will continue, and the police will be given the same powers as in England and Wales to impose conditions both on marches and on static assemblies. The proposed change to the Conspiracy and Protection of Property Act and those on incitement to racial hatred will extend to Scotland, but the common law there will remain unchanged pending recommendations from the Scottish Law Commission on mobbing and rioting.
"As the House already knows, legislation will also be introduced in England and Wales to control the availability of alcohol at or on the way to football matches along the lines of the existing Scottish legislation.
"Mr. Speaker, the White Paper contains a set of proposals which bring up to date the age-old balance between fundamental but sometimes competing rights in our society. We must and shall continue to preserve the basic and crucial right to freedom of speech and freedom of assembly. These freedoms are essential to any democratic society. They must be given full and effective protection. But people also have the right to protection against being bullied, hurt, intimidated or obstructed, whatever the motive of those responsible may be, whether they are violent demonstrators, rioters, intimidatory mass pickets or soccer hooligans. I believe these proposals will contribute in a practical way to protecting both sets of freedoms."
My Lords, that concludes the Statement.
§ 5.9 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble Lord for repeating the Statement of the Home Secretary. The review of public order law was set up as far back as June 1979, arising from the fearful and tragic Southall disturbances. It is right, of course, that a good deal of time should have been taken over the consideration of what should best be done, bearing in mind the necessity to strike a proper balance between the interests of society in the maintenance of law and order and the right of the individual to enjoy civil liberties.
We are presented with a White Paper which comes out today for the first time. I make no complaint about that fact, but it means that we cannot give a full and considered judgment to the important changes that are proposed, altering the common law in a number of ways, until we have had an opportunity of examining not only the White Paper but, what will be more important even than that, the Bill which will be introduced in due course to give effect to the proposals. Can the Minister say when it is proposed to publish such a Bill and to legislate upon this matter? Certainly, some of the proposals give some satisfaction; but some, in our view, taking an interim view of the matter at the moment, do not go anything like far enough.
I noticed that early in the Statement it was said that the 1936 Public Order Act was passed to deal with a particular problem of the day—the threat to freedom posed by the Fascist use of intimidation and violence. That use continues, particularly in the areas where a large number of our friends from the Dominions and other places are now found. The conditions in places 1280 like Newham and Tower Hamlets have become positively alarming because of the outrageous ways in which racist threats are being made as well as intimidation, and apparently the police are powerless to intervene. So we shall look to a hardening of the law in that direction.
The White Paper draws attention to the intolerable situation of masses of racially inflammatory material being exposed, as I know it is, in areas near Brick Lane, and this is done with impunity. What, apparently, the White Paper proposes is to create an offence of possessing racially inflammatory material with a view to distribution or publication. But then it goes on to say that someone who was handed a racially inflammatory leaflet in the street would not be committing an offence. I am not sure that that is good enough. Clearly, someone keeping several hundred leaflets for distribution will come within the scope of what is proposed, and that is good so far as it goes. But this goes to emphasise the importance of waiting to see precisely what is to be included in the legislation before we pass judgment upon it. But so far as it goes, this is a necessary and welcome step to prevent this vice of racial inflammation going on in the heart of many of our communities.
There are other important changes in the law which are proposed. There is the suggestion of modernising the offences of riot, unlawful assembly and affray, and new offences are to be created. The result of some of these changes will be to enable less serious cases of affray and violent disorder to be tried in a magistrates' court. There again we shall have to see how that is defined. Removing the right to trial by jury in serious offences of that kind is clearly an important step which we shall have to consider with great care.
Then, on the problem of how to deal with intimidation of those going about their lawful occasions, what is proposed, as I understand it, is to give the police power of arrest without warrant in those circumstances. This is an important and potentially perilous development in regard to the necessity for maintaining a good relationship between the public and the police. But here again we shall have to see how the proposal is spelled out in detail before we can pass judgment upon it.
The prohibition of marches has had to be considered and particularly we think in an election period, when excitement is great. Marches at that time are of great importance, especially marches with racial overtones. In some elections, we have seen that they have proved very damaging indeed to public order. As I said, the provision in regard to giving the police power to arrest without warrant in a new sphere is something of importance.
I feel that at this stage, when we are without the real material upon which to decide on these matters, it is better to withhold any final judgment. But as regards the emphasis on the intention to punish and penalise those who are guilty of a breach of civil liberties in achieving their purposes, we welcome an approach along those lines and we shall await with interest the production of the Bill to give effect to these proposals. We shall then no doubt examine them with responsible care.
§ 5.17 p.m.
§ Lord Wigoder
My Lords, we welcome the publication of the White Paper in order to bring the whole area of public order law up to date. It follows, perhaps somewhat belatedly, the Green Paper of April 1980, the Home Affairs Committee's report of August 1980, and of course the Law Commission's very useful report of October 1983. Only one or two comments might be helpful at this stage until one has had a chance of studying the White Paper.
First, I must say that I have some sympathy with the comments in the Statement about marches. I have never quite understood the viewpoint that there is an inalienable right in a human being to collect together with a large number of other ones, in order to march through streets carrying indecipherable placards and bringing the life of the neighbourhood to a complete standstill. Certainly, I believe it is quite right that restrictions should be envisaged where the location for such a march is quite deliberately chosen in order to cause the maximum amount of provocation and, if possible, the greatest danger to the public peace by the creation of acts of violence taking place under the noses of television cameras specifically invited along for that very purpose. We shall look forward with interest to see precisely what restrictions are imposed in the interests of the public as a whole.
Secondly, I note the comments made about public assemblies, and in particular the somewhat curious one that the police should have the right to impose limitations on the number of people present. How this will work I do not know. I envisage a somewhat curious situation in which organisers of a demonstration are told that in Trafalgar Square the limit is 5,000 and the inspector in charge of the police says that there are 5,001 present, but the organisers say, "No, there are only 4,999". I hope that before any such artificial proposal is put forward, the Government will think about the slightly absurd consequences that might result.
Thirdly, I support what the noble and learned Lord, Lord Elwyn-Jones, has said about the suggestion that trial by jury might in some respects be diminished. I hope very much that that will not take place. Any right of trial by jury that is diminished in any way will meet with a great deal of resistance by my noble friends on these Benches because we all know that it will be the thin end of a wedge and might be expanded very rapidly as soon as the opportunity presents itself.
Finally, perhaps I may ask the noble Lord the Minister a very simple question. I am sure he is aware that on a number of occasions recently at public inquiries the whole purpose of those inquiries has been frustrated by those who have deliberately indulged in disorder. I refer in particular to the inquiries at Archway and Highgate. If the criminal law in its present form is able to cope with those outbreaks of public disorder then clearly it is not being used. I should like to ask the noble Lord the Minister, why not? If, as I rather suspect, the criminal law is not adequate at the moment to deal with those who deliberately bring public inquiries to a complete halt, may I ask the Minister whether the Government have considered creating a specific offence to deal with that very real problem?
§ Lord Glenarthur
My Lords, perhaps I may respond, first, to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Wigoder, and thank them for their comments and for what I believe to be a general welcome for what is proposed in the White Paper.
The first thing I have to say is that a Whitt. Paper such as this requires a study over a period of time. It might encourage the noble and learned Lord. Lord Elwyn-Jones, if I say that he will find at Chapter Nine where it summarises the proposals the comment:The Government would particularly welcome comments on the proposals marked with an asterisk".Those are two on which he and other noble Lords will no doubt comment.
With regard to timing for legislation, I can say to the noble and learned Lord that we intend to bring forward proposals at the first legislative opportunity. I cannot go further than that but I hope he will accept that in the way it is intended. In regard to the offence of incitement to racial hatred and why there is a need to strengthen it, the offence will be strengthened, first, by extending it to conduct which is likely or intended to stir up racial hatred. This is necessary to catch material which is circulated to groups of people, such as clergymen, Members of another place and no doubt even ourselves, who are unlikely themselves to be incited to racial hatred. The second way in which it will be strengthened is by making it an offence to possess racially inflammatory material with a view to distribution or publication. This is being introduced because of the difficulty of bringing prosecutions against those who produce or supply racially inflammatory material unless a specific instance of distribution can be proved against them.
On the question of marches, the noble Lord, Lord Wigoder, was encouraged by what he had read. The Select Committee recommended a requirement of advance notice, as did the noble and learned Lord, Lord Scarman, in his report on the Brixton riots. An advance notice requirement currently exists in Scotland and in 92 local authority areas in England and Wales; and its works very well. The Government are merely proposing an extension of these arrangements to the rest of the country. Most responsible organisers of marches already give advance notice to the police. The statutory requirement will simply formalise that practice.
The noble and learned Lord, Lord Elwyn-Jones, asked me about the minimum period of seven days' notice, particularly with regard to times such as elections when it might be considered too short. The period must be sufficient for the police to conduct the very necessary discussions with the organisers and to make their own preparations. It is clearly desirable for organisers to get in touch with the police before distributing publicity about the route of their march, and so on. Seven days is the statutory period of notice in Scotland and, as I have said, we propose to adopt the same period in England and Wales. As far as I can see, this must be a benefit both to the police and to the organisers of marches.
On the question of affray and violent disorder and the kind of points which the noble Lord, Lord 1283 Wigoder, raised just now, other offences carrying higher maximum penalties—theft and burglary—are triable either way. No case can be tried in a magistrates' court except with the consent of prosecution and defendant. Most cases will probably continue to be tried in the Crown Court, but it would enable less serious cases to be tried more speedily and more economically. That I think would serve us well.
On the question of public inquiries and the disruption that has occurred in the past—I am well aware of the sort of thing to which the noble Lord refers—the noble Lord will find the answers to the points that he raised in paragraph 5.17 on page 36 of the White Paper. I will not necessarily read it out now but I hope that that will answer the questions he raised.
Those are the immediate questions that were asked. If I have missed out any I shall certainly study them and write to both noble Lords.
My Lords, may I ask my noble friend whether this measure, which I imagine every law-abiding citizen in this country would welcome, will allow the banning of gatherings which, it may be guessed, will damage either public or private property? From what the noble Lord, Lord Wigoder said, numbers can be reduced. If the noble Lord cannot answer on that matter, I wonder whether it could be considered at another stage or at another time, so that this measure can be made to cover gatherings which are likely to damage either public or private property? Trafalgar Square was mentioned by the noble Lord opposite. I can think of many other places in connection with the public point of view, but I am thinking in particular of private property. I do not expect an answer now.
§ Lord Glenarthur
My Lords, I am afraid that I cannot give an answer in quite the terms that my noble friend asks, but I shall certainly study his remarks and let him know.
§ Lord Monson
My Lords, does the noble Lord the Minister not agree that, as the noble Lord, Lord Wigoder, hinted, the right of ordinary peace-loving citizens to go about their lawful business without being intimidated or, for that matter, obstructed by mobs, is every bit as important as the right of demonstrators to demonstrate? It is on that basis that the fine print of the Government's proposed legislation will be judged.
§ Lord Glenarthur
My Lords, I hope that I made clear when I repeated the Statement, and my right honourable friend made clear in making the Statement, that that was one of the most important features of the White Paper and the proposals that might eventually stem from it.
§ Lord Somers
My Lords, I am personally very happy that the White Paper states what it does. I should like to make one point. A march is not really necessary at all; nor does it ever really achieve anything that it intends to. Those who organise a public march no doubt hold very firm convictions themselves but they very seldom manage to convince anybody who is watching them. I think that all of us have very firm convictions about many things, but we would convince nobody else by going out and organising a 1284 march through the streets. Therefore I think that the only motive behind organising a march is to cause a little excitement which may sometimes escalate to dangerous heights.
§ Lord Glenarthur
My Lords, the noble Lord, Lord Somers, is certainly entitled to his view on that. I suspect that his remarks might quite well be addressed to those who organise the marches.
§ Lord Mishcon
My Lords, would the noble Lord not agree that the ability to march and demonstrate is all part of a British tradition? Would he not accept from me that it enables a lot of people to get rid of a lot of steam in regard to something about which they feel fervently and is therefore a good reason why they should not indulge in any other rather more energetic enterprise which may indeed lead to a breach of public order?
§ Lord Glenarthur
My Lords, the noble Lord, Lord Somers, expressed the view that marches do not achieve anything. I was not attempting to make a judgment. I am sure that a march does allow people to let off steam. The point is that in doing so they should not necessarily trespass against other people and bring about all the other difficulties which might occur. That is why the proposals in the White Paper appear as they do.
§ Baroness Hornsby-Smith
My Lords, perhaps I may follow up the comment made by the noble Lord, Lord Mishcon. I will point out to my noble friend that those of us who live in SW1, and not north of Hyde Park, suffer from more demos and interruptions than any other area in any city in this country. For four and a half hours on one occasion, eight streets in the particular area where I live were closed, and it was impossible to use one's car. We have seen Westminster Bridge closed, and on occasions Lambeth Bridge as well. This means that people cannot take buses or use their cars to get home.
It really is about time that we placed some limit on the size of demonstrations. On the two occasions I have in mind, pensioners trying to start their cheap off-season holidays were stranded and, with heavy luggage, were quite unable to reach Victoria Station and catch their train to Gatwick. They were sobbing their eyes out because they could not reach their destination. It is about time that something was done for the ratepayers and residents in this city—particularly in the SW1 area—who find themselves isolated in their homes by perpetual demonstrations, which in many cases involve abnormal numbers of people, who parade down streets which are closed to the rest of us.
§ Lord Glenarthur
My Lords, I note my noble friend's concern. The fact is that the two new tests which the Government propose—and particularly the first of these, that serious disruption to the local community should be one of the factors which the police ought to consider—will no doubt to some extent take account of some of my noble friend's worries. This measure was proposed by the Home Affairs Committee in another place, and their report vividly describes the degree of disruption which can be caused 1285 by a procession of even average size. I believe that those tests will probably meet my noble friend's concern.