HL Deb 24 July 1986 vol 479 cc436-42

6.52 p.m.

Lord Glenarthur

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee—(Lord Glenarthur).

House in Committee accordingly.

[The LORD WELLS-PESTELL in the Chair.]

Lord Mishcon moved Amendment No. 31:

Before Clause 11, insert the following new clause:

("General

. Subject to the provisions in this Part contained, persons shall be lawfully entitled peacefully to demonstrate or peacefully to hold assemblies.")

The noble Lord said: I should like to speak briefly to this important amendment on the Public Order Bill. As the Committee will see, the amendment proposes a clear statutory provision that, subject to the provisions of Part II, which we are now embarking upon, persons shall be lawfully entitled peacefully to demonstrate or peacefully to hold assemblies.

The Committee will realise that Part II of the Bill deals entirely with provisions which restrict the right of assembly and the right of demonstration. The Committee may decide one way or the other about the propriety of those restrictions. But nowhere in the Bill, which is a public order Bill and not a public disorder Bill, is there a statutory right peacefully to demonstrate, peacefully to assemble. It is one of the rights which many of us, indeed, all of us, I suppose, take for granted. It is a safety valve which from our point of view as a nation has proved to be very useful in times of crisis and on occasions when people have wanted perfectly peacefully to demonstrate by way of protest or by way of supporting a cause that they favoured.

It may surprise the Committee to learn that nowhere in any statute is a right enshrined to demonstrate or to assemble. I promised the Committee that I would be brief, and I shall quote only one sentence from Dicey, the great authority on our constitution. I quote from page 271 of that famous volume, the Tenth Edition: it can hardly be said that our constitution knows of such a thing as any specific right of public meeting". Only one more sentence do I quote, and it is from Lord Chief Justice Hewart when delivering judgment in the case of Duncan v. Jones in 1936. This is what he said: There have been moments during the argument in this case when it appeared to be suggested that the Court had to do with a grave case involving what is called the right of public meeting. I say 'called', because English law does not recognize any special right of public meeting for political or other purposes.

The Committee has the opportunity at a time when we are dealing with provisions relating, I repeat, to the restrictions on public assembly and the right to demonstrate clearly to put into an Act of Parliament that if people do it lawfully and peacefully, they are exercising a legal right. As mentioned in another place, it is not good enough merely to say that the police will be informed that this is a recognised right. People other than the police deserve to be informed of this, and our nation as such deserves to have it as a right enshrined in statute. I beg to move.

Lord Denning

This right or duty is amply provided for in common law. My learned friend—I call him learned in this respect—goes back to Dicey and so forth. I do not want to be too modest and if he turns to the case of Hubbard v. Pitt in 1976, reported in the Queen's Bench Division at page 178, he will see what I said. I do not like to quote myself, but no one disagreed with me: 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 Peterloo case, though I shall not go further into that. I went on to say: 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. Although I said that, I affirm that the right is in the common law of England. It is better to be stated in common law by the judges than to have it put in a statute. I say that because the others disagreed with me on the facts because there was a nuisance there. One does not have all the exceptions stated in the statute. If the right to demonstrate causes a nuisance, the common law will restrain it. But the real point—I stress this—is that these principles are enshrined in our common law. It is much better stated in the common law because the judges can moderate it, deal with it, or give exceptions, as the case may be. The same is true of the right of assembly. All these have been protected by the judges for all these years by the common law. Let them still be protected by the common law. Do not let us start writing words in statutes.

Lord Mishcon

Before the noble and learned Lord sits down, I am sure that with his usual courtesy he will allow me to say that he is much too modest in thinking that I have not read his judgment. I have it here. It was a judgment which dealt with the common law position. In my speech I made no mention of the fact that it was not part of the common law which was interpreted by our judges. I said that we were dealing here with statutory limitations on that right. If there are statutory limitations, with all due respect to the noble and learned Lord, the right to which those limitations apply ought themselves to be in a statute.

7 p.m.

Lord Hutchinson of Lullington

With some temerity I should like to support the noble Lord, Lord Mishcon. I am unable, of course, to quote my own words in any case, Hubbard v. Pitt or any other; and if I were to do so I do not think that your Lordships would pay very much attention because they would have been words of counsel crying in the wilderness. The whole thrust of this Bill is restrictive. It creates numbers of new offences, it criminalises whole areas of behaviour which in a tolerant democracy should be accepted as part of living in a free society. And it repeatedly shifts the burden of proof of offences, placing the onus on the person charged to prove his innocence. There is almost nothing in this Public Order Bill that can be said to uphold, protect or extend the civil liberties of the citizen.

In this Bill, the police are called upon to make numerous wholly subjective judgments. Increasingly, they are asked under the various clauses of this Bill to become interpreters as well as enforcers of the law, with the widest discretionary powers. It is because the provisions of the Bill are so loosely drawn; because the interpretation and the discretion are so wide in their scope and the powers are so extensive that there is a need, I would suggest, for the clearest statement of the principles which should guide the implementation of the provisions of the Bill.

After all, this is only the second occasion in our history that it has been felt necessary to propose a measure dealing with public order. Surely, in passing a Bill that deals with the limitation and the potential suppression of the exercise of some of our liberal democratic freedoms, we should at the same time proclaim clearly just what those freedoms are and, if I may say so, provide the police with a touchstone by which they can exercise their very extensive powers.

Lord Butterworth

I shall be very brief. It seems to me that we are at the moment on very dangerous ground. We are about to change some of the fundamental principles of the English law, if I may put it this way, by a side wind before dinner. The right to protect, the right of assembly, is unwritten and depends upon the right that every citizen has to undertake such conduct as seems to him to be proper, subject to not breaking the ordinary law of the land. The danger, if we pass this clause, is that we shall leave the law in an unbalanced condition. We shall give the right to the noble Lord, Lord Mishcon, to assemble, to protest; but we shall remain silent about the rights of all ordinary citizens to go about their business, their right to go shopping, their right to catch the train at Euston Station.

What I wish to say this evening is simply this. If you are going to include in this Bill the right of noble Lords to protest and to assemble, then I ask that you should also put into the Bill my right to go shopping, my right to catch the train at Euston Station—because the rights of assembly, the rights of protest, must be exercised with discretion, having regard to the rights of ordinary citizens to go about their business. If we were to allow this, or indeed the next, amendment to be passed, we should leave, in my submission, the law in an unbalanced condition and the rights of ordinary citizens desperately unprotected.

Lord Glenarthur

This short debate on this amendment has in many ways gone much wider than a debate on a fairly straightforward amendment, because, as my noble friend Lord Butterworth has said, we are grappling with a subject that goes towards the heart of our legal system. I understand the feelings that lie behind the wish of the noble Lord, Lord Mishcon, in this case. We are all rightly and passionately proud of our democratic values and traditions. Throughout their review of public order law and, consequently, during the passage of this Bill, the Government have thought long and hard about whether we should have a statutory right to demonstrate.

We have decided that to attempt such a provision would have serious repercussions for our civil liberties and individual rights. As the noble Lord, Lord Mishcon, has said, it is a fundamental precept of English law that we are all free to do anything not prohibited by law. Other countries and other systems of justice have taken a different route. They have enshrined in law certain basic rights against which to balance other conduct or behaviour. That is not an approach that I favour because as a matter of principle I believe that it limits freedom rather than guarantees it; but I can see the logic involved.

The new clause before us starts down this path but it does not go the whole way. It seeks to enshrine in statute a right to demonstrate and assemble peacefully subject only to Part II of the Bill. It is silent on other rights: the right to live in peace, the right to privacy, the right to go to work and the right to carry on one's business unmolested by others. At present, our law draws no distinction and establishes no hierarchy between such rights. But this new clause implies that the right to demonstrate and assemble is so important that it alone deserves to be recognised in statute. Are we to conclude that it is the most important right? Will that be the effect of this new clause? We canot be sure that it will not have that effect; and such a result would be fundamentally wrong.

That is an argument of principle on which we may legitimately and honourably disagree but it has important practical implications as well. The new clause states baldly that there is an absolute right to demonstrate or hold assemblies peaceably, subject only to the provisions in Part II of the Bill. That may have serious and unwelcome consequences. It may mean, for example, that there would be an absolute right to hold a procession or assembly on anyone's private land, whether the owner wishes such a gathering to take place or not; because the powers contained in Part II do not extend to private places. The landowner might have no recourse to the law, not even if the assembly or the procession was tortious.

Lord Mishcon

Perhaps I may interrupt the noble Lord only to save time. He has not caught the word "lawfully" which is in the amendment.

Lord Glenarthur

In that case, I could perhaps cut out half of what I was going to say and speed towards my conclusion. If the police wish to use their powers to prevent obstruction of the highways to stop people blockading others on the way to work, as far as I can tell from the noble Lord's amendment, the demonstrators may say, "No, we have an absolute right to demonstrate and there is nothing you can do about it". That does not seem entirely to concur with the last expression of the noble Lord, Lord Mishcon. And they would be right unless conditions could be imposed under Clause 14.

The provisions in Part II of the Bill provide a balance—and I think that this is a point that the noble and learned Lord, Lord Denning, was hinting at—between the right to demonstrate and the right of others to go about their business in peace. They do so because the law recognises a person's freedom to do anything not prohibited by law. So anyone can demonstrate, assemble or protest, subject only to limitations imposed by law, of which Part II would be a part, but not the whole.

This new clause really does overturn that balance. It does not provide greater protection under the law, or a balance of rights. It does, I submit, produce a jumble, a conflict of rights which cannot be resolved. It is for that reason, above all others, that it is not acceptable. That is why I hope the noble Lord will see the force of that argument and will accept the remarks of the noble and learned Lord, Lord Denning, and that he will feel able to withdraw his amendment.

Lord Mishcon

A debate would be very interesting but I think we have had most of it by way of interjection in the various speeches. I think it would possibly be the wish of the Committee that the view of your Lordships should be taken now without a further speech from me.

7.11 p.m.

On Question, Whether the said amendment (No. 31) shall be agreed to?

Their Lordships divided: Contents, 75; Not-Contents, 134.

DIVISION NO.3
CONTENTS
Airedale, L. Banks, L.
Amherst, E. Barnett, L.
Ardwick, L. Birk, B.
Attlee, E. Boston of Faversham, L.
Avebury, L. Brockway, L.
Carmichael of Kelvingrove, L. Kirkhill, L.
Cledwyn of Penrhos, L. Lloyd of Kilgerran, L.
Darwen, L. Longford, E.
David, B. McNair, L.
Dean of Beswick, L. Manchester, Bp.
Diamond, L. Mayhew, L.
Donoughue, L. Meston, L.
Elwyn-Jones, L. Mishcon, L.
Ennals, L. Molloy, L.
Ewart-Biggs, B. Nicol, B.
Falkland, V. Pitt of Hampstead, L.
Fisher of Rednal, B. Plant, L.
Fitt, L. Ponsonby of Shulbrede, L.
Foot, L. [Teller.]
Gallacher, L. Rea, L.
Gifford, L. Ritchie of Dundee, L.
Graham of Edmonton, L. Robson of Kiddington, B.
[Teller.] Seear, B.
Grimond, L. Serota, B.
Halsbury, E. Shepherd, L.
Hampton, L. Silkin of Dulwich, L.
Hanworth, V. Stallard, L.
Harris of Greenwich, L. Stedman, B.
Hatch of Lusby, L. Stewart of Fulham, L.
Houghton of Sowerby, L. Stoddart of Swindon, L.
Hutchinson of Lullington, L. Strabolgi, L.
Irving of Dartford, L. Underhill, L.
Jacques, L. Wallace of Coslany, L.
Jeger, B. Wedderburn of Charlton, L.
John-Mackie, L. Wells-Pestell, L.
Kagan, L. White, B.
Kennet, L. Wilson of Rievaulx, L.
Kilbracken, L. Winterbottom, L.
Kilmarnock, L.
NOT-CONTENTS
Ampthill, L. Freyberg, L.
Ashbourne, L. Gardner of Parkes, B.
Bauer, L. Gibson-Watt, L.
Beaverbrook, L. Glenarthur, L.
Belhaven and Stenton, L. Gray, L.
Bellwin, L. Gray of Contin, L.
Beloff, L. Greenway, L.
Birdwood, L. Gridley, L.
Blake, L. Hanson, L.
Brabazon of Tara, L. Harmar-Nicholls, L.
Brocket, L. Henley, L.
Brougham and Vaux, L. Hesketh, L.
Broxbourne, L. Hives, L.
Butterworth, L. Hood, V.
Caithness, E. Hooper, B.
Caldecote, V. Hylton, L.
Cameron of Lochbroom, L. Ironside, L.
Campbell of Alloway, L. Keyes, L.
Campbell of Croy, L. Kimball, L.
Carnock, L. Knollys, V.
Cathcart, E. Lane-Fox, B.
Chelmer, L. Lauderdale, E.
Clinton, L. Lawrence, L.
Coleraine, L. Layton, L.
Colwyn, L. Limerick, E.
Constantine of Stanmore, L. Lindsay, E.
Cork and Orrery, E. Lindsey and Abingdon, E.
Craigavon, L. Long, V.
Craigmyle, L. McFadzean, L.
Crawford and Balcarres, E. Macleod of Borve, B.
Croft, L. Malmesbury, E.
Dacre of Glanton, L. Mancroft, L.
Davidson, V. Margadale, L.
Denham, L. [Teller.] Marshall of Leeds, L.
Denning, L. Maude of Stratford-upon-
Drumalbyn, L. Avon, L.
Dudley, E. Merrivale, L.
Dundee, E. Mersey, V.
Elibank, L. Middleton, L.
Elles, B. Milverton, L.
Elliot of Harwood, B. Molson, L.
Elton, L. Monk Bretton, L.
Erroll of Hale, L. Monson, L.
Fraser of Kilmorack, L. Montgomery of Alamein, V.
Morris, L. Southborough, L.
Mottistone, L. Stanley of Alderley, L.
Moyne, L. Strathcona and Mount Royal,
Munster, E. L.
Napier and Ettrick, L. Suffield, L.
Norfolk, D. Swinfen, L.
Norrie, L. Swinton. E. [Teller.]
Orr-Ewing, L. Teviot, L.
Pender, L. Thomas of Swynnerton, L.
Penrhyn, L. Torphichen, L.
Plummer of St. Marylebone, Townshend, M.
L. Trefgarne, L.
Portsmouth, E. Trumpington, B.
Rankeillour, L. Ullswater, V.
Renton, L. Vaux of Harrowden, L.
Renwick, L. Vickers, B.
Romney, E. Vivian, L.
Russell of Liverpool, L. Whitelaw, V.
St. Davids, V. Wigram, L.
Salisbury, M. Windlesham, L.
Sanderson of Bowden, L. Wynford, L.
Sandys, L. Yarborough, E.
Sempill, Ly. Young, B.
Shannon, E. Young of Graffham, L.
Skelmersdale, L.

Moved accordingly, and, on Question, Motion agreed to.

7.19 p.m.

Viscount Davidson

In rising to move that the House do now resume, I suggest we do not return to the Committee stage before 20 minutes past eight. I beg to move that the House do now resume.

House resumed.