Contribution
My Lords, I am grateful to the noble Lords, Lord Marks, Lord Strasburger and Lord Davies of Gower, and the noble Baroness, Lady Jones, for affording us this further opportunity to debate the right to protest and public order measures in the Bill. I am grateful to all noble Lords who have contributed to this important debate.
The Government fully recognise the importance of peaceful protest in a democratic society. However, Amendment 369, put forward by the noble Lord, Lord Marks, would place in statute a right that is already clearly protected in domestic law—and it is not only me saying that, as we have heard from the formidable legal troika of the noble Lords, Lord Faulks and Lord Pannick, and my noble friend Lady Chakrabarti. As they said, public authorities are bound by the Human Rights Act to uphold Articles 10 and 11 of the European Convention on Human Rights which cover freedom of expression and freedom of assembly. These rights are qualified and may only be limited when restrictions are lawful, necessary and proportionate. Common law also provides strong recognition of peaceful protest. Introducing an additional statutory provision risks creating overlap and uncertainty, particularly for operational policing, without offering any meaningful new protections.
In their contributions, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, talked about the risks of, shall we say, a more extreme Government and this paving the way for further restrictions on the right to protest. I can only agree with comments made by a number of noble Lords, particularly the noble Lords, Lord Pannick and Lord Faulks: I hope the occasion never arises, but that is democracy, and any incoming Government that have that kind of mandate would not find it hard to overturn not only provisions that the Government are making in this Bill but the amendment that the noble Lord, Lord Marks, proposes, should it make its way on to the statute book. I am therefore not sure that argument really washes.
The Government remain firmly committed to safeguarding the right to protest. That is one reason why we have asked the noble Lord, Lord Macdonald of River Glaven, to review the current legislative framework. One of the matters being explored as part of the review is—to quote its terms of reference—whether the current legislation
“strikes a fair balance between freedom of expression and the right to protest with the need to prevent disorder and keep communities safe”.
The noble Lord, Lord Macdonald, is expected to report later in the spring. I assure noble Lords that we will consider very carefully all his recommendations, including any proposing a strengthening of the right to protest.
Amendment 369A, in the name of the noble Lord, Lord Strasburger, would provide a reasonable excuse defence for concealing a person’s identity at a protest in a designated area and shift the burden of proof away from individuals within that designated area on to police. Instead of requiring a person to justify why they had a valid reason for wearing an item to conceal their identity, as set out in the specified defences, it would place the responsibility on the police to assess, during a live protest, whether the explanation provided was reasonable or not. As we heard from the noble Lord, Lord Hogan-Howe, that is not necessarily always an easy thing to do.
Clause 133 currently provides three statutory defences for concealing identity at a protest within a designated area: relating to the health of the person or others; religious observance; or for a purpose relating to that person’s work. The offence carries a reverse burden of proof, meaning it is for the individual to prove they concealed their identity for one of these reasons. I consider this a proportionate and carefully balanced offence.
It is important to highlight that any decision to designate an area and arrest a person concealing their identity must take into account Section 6 of the Human Rights Act 1998, meaning that all decisions must be necessary and proportionate in relation to the right to peaceful protest. It is important to bear in mind that a locality will be designated only when it is thought that a protest activity is likely to involve or has involved criminality, so it is expedient to do so in order to prevent or limit the commission of offences.