Repealing the ban on unauthorised protest in the vicinity of Parliament

The history of SOCPA
The restrictions on protest that became law under the Serious Organised Crime and Police Act 2005 (SOCPA) were the result of a debate that started in Parliament in 2003 around the issue of Brian Haw's continuous peace protest in Parliament Square. It was proposed that new legislation was needed in order to deal with the protest as court challenges by various authorities had been unsuccessful and Brian Haw's protest was considered lawful under the then current legislation. Issues such as security and maintaining access to Parliament for MPs have subsequently been used to justify SOCPA but there already existed legislation and powers to deal with these concerns and there is little evidence to suggest SOCPA has, or even could, deal with these issues.

The initial draft of SOCPA would have allowed for protests to be restricted if they were 'spoiling the visual aspect' around Parliament in addition to a number of other reasons. This alone suggests that Brian Haw's protest was a, if not the, significant target for the new legislation. However, at the last minute – in what was probably a belated recognition of how unworkable and blatantly Brian-focussed such a law would be - the wording of the legislation was changed to 'disruption of life in the community'.

There have been many criticisms about the way that SOCPA passed into legislation (see here) with much concern that an unworkable and controversial piece of legislation became law without proper consideration or debate.

The restrictions on protest in the vicinity of Parliament
Sections 132-128 of SOCPA ban any unauthorised protest in the 'designated area' around Parliament and allow the police to impose conditions on any demonstration. These powers only apply to assemblies, not to marches, which are covered by the Public Order Act 1986. SOCPA introduced the concept of a static demonstration which can consist of just one person, whereas the definition of an ‘assembly’ which is what the police can control under other public order legislation, is 2 or more people. Organisers of a static demonstration must give 6 days’ notice and the police must in turn authorise the demonstration. Although the police are not allowed to ban a demonstration outright, they can impose conditions on it - in order to secure the operation of Parliament, provide unobstructed access to Parliament, to avoid serious disorder or serious damage to property, disruption to the life of the community, or a security risk, or a risk to the safety of the public. Restrictions can refer to place, time, duration, number of people, number and size of placards or banners (but not what they say) and maximum permitted noise levels. Section 137 of SOCPA imposes an outright ban the use of loudspeakers at demonstrations within the designated area.

The present boundaries of the 'designated area' were defined by the Home Secretary in an Order in July 2005. SOCPA states that this area shall be no 'more than one kilometre in a straight line from the point nearest to it in Parliament Square'. The present boundary nearly extends to the full 1km allowed. A person guilty of an offence under Sections 132-138 of SOCPA can receive a penalty of up to £2500 and, if convicted of organising, 'imprisonment for a term not exceeding 51 weeks'.

The increase in police powers to control and restrict protest
The restrictions on protest around Parliament under SOCPA are part of a range of police powers to control protest that has significantly increased over recent years. Other sections of SOCPA introduced criminal trespass at 'designated sites' for a variety of reasons (including in the 'national interest') at a range of military, Government and crown properties. SOCPA also redefined the definition of harassment to allow it to be used more readily against campaigners. The police have increasingly used anti-terror, anti-social behaviour and anti-stalker legislation to stop and intimidate peaceful protestors around the country; these are unjustifiable instances of 'function creep' that see laws being used for purposes for which they were not intended. Injunctions and use of laws protecting private property are being used by companies to limit the expression of public concern at their activities or on their property. For example, where part of a town centre is re-developed as a shopping centre, space which was previously street or square may become a private pavement or courtyard. Or a park may be managed by a private company on behalf of a local authority. These new developments are all on top of the range of existing public order legislation that the police are able to draw on in order to control what they perceive as unlawful or non-peaceful behaviour.

Most recently, The Serious Crime Act 2007 has brought in an amendment to section 136 of SOCPA which means that anyone intentionally 'assisting or encouraging' an unauthorised demonstration in the vicinity of Parliament (an offence that could be interpreted very widely), is liable to a penalty of a maximum 51 weeks in prison or a £2500 fine.

Human rights law
Article 11 of the European Convention on Human Rights gives a right to assembly subject to certain exceptions. This was incorporated into English law in the Human Rights Act 1998. The consultation document acknowledges that the right to peaceful protest 'is a very long and respected tradition in the United Kingdom', but that this right has to be 'balanced' with other considerations. There are real concerns that the SOCPA restrictions on protest are not compatible with human rights law but until individual cases can be heard in Europe this issue will not be resolved. It would in any case be unrealistic and negligent to expect the Government to ensure compatibility of public order legislation with existing laws and conventions. It is through protest itself that freedoms of expression and assembly have been fought for and established and it would be unwise to assume that actions to protect those freedoms do not have to continue.

More emphasis on there being a positive right to protest would protect the rights enshrined in the European Convention on Human Rights from unjustifiable restrictions due to growing company control of formerly public spaces. A positive right to protest would protect protestors from the implied accusation that protest is in itself anti-social and from the illegitimate use of legislation designed to address social problems.