Lord Davies of Gower (Con)

My Lords, I thank the noble Lord, Lord Marks, for bringing forward these amendments. The importance of peaceful protest in a free and democratic society is of course a principle supported by all noble Lords. I want to be clear at the outset that no one on the Benches on this side questions either the legitimacy or the constitutional right to protest. I first turn to Amendment 369, which seeks to place an express statutory right to protest into the Public Order Act 1986. This amendment risks solving a problem that does not exist. That is our belief. The right to protest is already deeply embedded in our constitutional and legal framework, as the noble Lord, Lord Pannick, has so carefully explained. It is recognised in common law, it long predates our membership of the European Convention on Human Rights and it has been repeatedly affirmed by the courts as a fundamental freedom in our democratic tradition. Crucially, this right has never been absolute. Historically, it has always existed alongside the equally important duties of the state to maintain public order, protect public safety and safeguard the rights and freedoms of others. That careful balance has evolved over centuries through common law and legislation. It is not at all clear that reinstating the right to protest in statutory form would add meaningful protection beyond what already exists. There is a real risk that codifying such a broad and long-standing right in statue could have unintended consequences. By setting out open-ended duties on public authorities to respect, protect and facilitate protest, the amendment would inevitably invite further litigation and judicial interpretation. Decisions about the proper balance between protest rights and competing public interests, such as disruption to essential services or public safety, could increasingly be determined in the courts rather than by Parliament or accountable Ministers. That risks further frustrating the will of the Executive and of Parliament. I do not believe that placing an express right to protest into statute is either necessary or desirable. Our system has functioned for generations without such a provision and it is not evident that this long-standing settlement is now deficient. I turn to Amendment 371, which would require an independent review of the existing legislative framework governing protest. We on these Benches are unconvinced of the case for such a review. The Acts listed have been subject to extensive parliamentary scrutiny and their compatibility with the European Convention on Human Rights has been debated at length in both Houses. We do not support proposed new subsection (5) in this amendment, which would require the review to have regard to the impacts of legislation on the exercise of rights under the ECHR. The ECHR is already subject to unwelcome litigation which brings about perverse outcomes that were never intended at its commencement: there are plenty of examples of that. An additional independent review would be unnecessarily burdensome and duplicative, consuming time and public resources without a clear or compelling purpose. For these reasons, we on these Benches do not support either amendment. I look forward to hearing the Minister’s response and to further discussion of how best to uphold both the right to protest and the rule of law in a balanced and proportionate way.