Contribution
I am grateful to the noble Baroness, who makes a forceful point, but my understanding is that that led to no charges. I certainly would not defend what the police did in those circumstances. Perhaps more relevantly, it has nothing whatever to do with the contents of the Bill or the proposals that the Government are putting forward in this proposed legislation.
Amendment 369 is an important amendment, from the noble Lord, Lord Marks, and others, proposing that we should insert into the statute book a right to protest. I agree with the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Faulks, that it would be most inappropriate. It cannot be right to introduce a statutory right to protest when we are not introducing into the statute book, and rightly so, any other provision in the European Convention on Human Rights, such as the right to freedom of speech or to religious freedom. The reason for that, as the noble Baroness, Lady Chakrabarti, said, is that we already have the protection of the Human Rights Act, which is applied by our judges.
With respect, I do not accept the criticisms made by the noble Lord, Lord Marks, when he focused on the European concept, in the European Court of Human Rights, of the “margin of discretion”. But that is an international concept, as the noble Baroness, Lady Chakrabarti, said. There is something similar here—a discretionary area of judgment—but the European concept is an international concept that is not applied by the domestic courts. Then the noble Lord, Lord Marks, said, “Well, we need to put a marker down in case future Parliaments interfere with the right to protest”. But nothing that we do today will prevent a future Parliament, should it wish to do so, legislating in a way we may think is inappropriate. That is a matter for the future Parliament, and a matter for debate at the time.
The third point the noble Lord, Lord Marks, made was that the convention allowed for a restriction for the protection of morals. He said that was surely inappropriate. Well, yes, but I cannot think of any case where protest has been limited because of a moral view imposed by the police or any other authority. I would not go quite as far as the noble Baroness, Lady Chakrabarti, who said—I wrote it down—that morals were a “dead letter” nowadays, which is perhaps a wider proposition than she intended to suggest. But Amendment 369 would be most unfortunate. It would cause confusion and achieve no sensible purpose, if I may respectfully say so.
I take a different view of Amendment 369A in the name of the noble Lord, Lord Strasburger, and I have signed it. It deals with Clause 133, which introduces this new offence of concealing your identity at a protest. No defence of reasonable excuse is included, despite the fact that the Joint Committee on Human Rights, in its fifth report of the Session, proposed that there should be such a defence. The absence of such a defence is very puzzling, as the noble Baroness, Lady Chakrabarti, said, because in Clause 133(2) there are defences
“relating to the health of the person … religious observance, or … a purpose relating to the person’s work”.
In Committee I gave an example of why a defence of reasonable excuse is required. The example—and it is a very topical example—was of a man or a woman who wishes to protest outside the Iranian embassy or at some other demonstration against the conduct of the Iranian regime. They may well have a very strong reason for concealing their identity, which is that they have relatives in Iran. Are we really to say that they are committing a criminal offence, despite the obvious need for them to conceal their identity in those circumstances?
With great respect to the Minister, I heard no convincing answer to that point in Committee. That is why I have joined the noble Lord, Lord Strasburger, in suggesting that a defence of reasonable excuse should be added to this new criminal offence. If the noble Lord wishes to test the opinion of the House—and I hope he does, if the Minister cannot give any comfort on this—I will certainly support him.