Lord Marks of Henley-on-Thames (LD)

My Lords, in opening this group, I will speak principally to Amendment 369, which is in my name and the names of my noble friend Baroness Doocey, and the noble Baronesses, Lady Fox of Buckley and Lady Jones of Moulsecoomb. I will also speak to Amendments 369A, 372A, 372B, 372C and 373. Amendment 369 brings to Report our amendment calling for a strong statement in domestic law of the right to protest. Nothing has been said in Committee or so far on Report that has even started to persuade these Benches that this Bill does not need within it a strong statement of a statutory right to protest, which would both supplement and complement rights of the citizen under the ECHR. Our Amendment 369 is co-signed by the noble Baroness, Lady Doocey, and others, as I have said, and I accept entirely that the right to protest is, in part at least, enshrined in Articles 10 and 11 of the European Convention on Human Rights: Article 10 is on “Freedom of expression” and Article 11 is on “Freedom of assembly and association”. As I mentioned in Committee, the convention rights are circumscribed because they “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals”, or for the protection of the rights and freedom of others. A significant feature of the rights under the convention is that the degree to which the European Court of Human Rights may interpret or enforce those rights is subject to what is known as the “margin of appreciation”, accorded to individual signatory countries to decide how they, as nation states, interpret and enforce those rights. It is only where countries stray beyond that margin of appreciation that the European Court of Human Rights will hold a signatory nation in breach. What our amendment would do, that is new and not encompassed by the convention, is make it absolutely clear that in this jurisdiction, public authorities have a threefold duty in relation to protest: first, to respect, secondly, to protect, and, thirdly, to facilitate the right to protest. That duty is dynamic and positive. Our amendment is an important and clear statement of what every citizen would have a right to expect and insist upon from government, local and national. Government would have a duty to act, which is far stronger than a duty merely to refrain from interfering. Such a firm statement would be a more powerful protection than the convention rights, precisely because the margin of appreciation of which I spoke would be irrelevant. I need remind the Government only that it is their own express view that how we determine and apply the limits of Article 8, on the right to respect for private and family life, is open to discussion, as is the proper area for domestic legislation which they propose to introduce, in order to limit the way that Article 8 might act within the margin of appreciation. That is their stated position in the context of immigration law. That is a position the Government are entitled to take under the European convention, in my view. But there is a risk that more extreme Governments might push the boundaries of what is acceptable in the context of other human rights, including the rights under Articles 10 and 11. Members will no doubt remember that in Committee there was clear agreement around the House that, whether dealing with convention rights or rights under our amendment, we would have to strike a balance between the stated rights and the applications of the limitation—either under the convention, in the case of the ECHR rights, or under domestic legislation, if it were amended as we seek. But there is one specific area where that distinction may be important. The convention in both Articles 10 and 11 permits restrictions for the protection of morals, as was apparent from the passage I quoted. In a society as diverse as ours, with mixed secular and faith-based belief systems and philosophies, that is not an area in which we on these Benches would wish to see, let alone advocate for, a derogation from the convention rights or a restriction of our rights for the protection of morals. Our amendment would not permit a derogation or restriction on that ground alone. We also discussed the possibility in Committee that future Governments might not be as enlightened as our present Government no doubt are. I fear we can see the possibility that a future Government, more extreme than this one, might wish to introduce restrictions on freedoms of speech or assembly. In Committee, the Minister, the noble Lord, Lord Hanson, expressed optimism that this would not happen. He more or less said that if a Government were elected, they could do what they liked. I am not so sure. I say in answer to that point made by the noble Lord, Lord Hanson: let us make it more difficult to change the citizen’s rights for the worse, while we can. There was also discussion in Committee as to whether there might not be differences between the convention rights and the rights under our amendment. The suggestion was made by some that this would give rise to satellite litigation. For my part, I do not believe that the convention rights would in any sense either clash with or limit the rights of people in this country under the clear rights that would be enshrined in domestic law pursuant to our amendment. On a practical level, I acknowledged then, and acknowledge now, that policing protests can be an expensive exercise and that it is sometimes difficult for the police to draw a balance—which often has to be drawn in advance—between overpolicing and underpolicing protests. That makes it even more important to spell out in clear terms what the right to protest is, so that the police and local authorities may be accorded the necessary resources for them to carry out that duty to respect, protect and facilitate protest.