Wednesday, 30 April 2008

Freedom to Protest: What Does the Proposed Repeal of Sections 132-38 of SOCPA Really Mean?*

It seems another consultation on our freedom to assemble and protest is on its way. The House of Commons Joint Committee on Human Rights has just launched a ‘Call for Evidence’ in order ‘to enquire into the human rights issues arising from policing and protest’. These are some of the questions asked:

• What limits, if any, should be placed on the right to protest and why?

• Should specific limitations be placed on the ability of certain groups to protest? If so, who and why?

• Should the right to protest be more strictly curtailed in relation to certain geographical areas? If yes, where, why and what limits would be acceptable?

• The Government proposes to repeal sections 132-8 SOCPA dealing with protest around Parliament and invites Parliament to consider whether additional provision is needed to ensure that Parliament's work is not disrupted by protests in Parliament Square. What, if any, additional provision is required?

• In what circumstances would it be permissible for the State to take pre-emptive action, which curtailed protests?

• Are existing police powers necessary? Are more or fewer required?

• Are counter-terrorism powers appropriately used in the policing of protests?

• In what circumstances may actions during protests be justifiably criminalised?

• How should the balance be struck between the rights of protesters and other competing interests (such as the rights of others or the prevention of disorder or crime)? Would legislative changes be desirable to strike a better balance between competing rights, or is the current legislative framework about right?

This talk of ‘legislative changes’ might be the first step for new policies that will allow for a further criminalisation of certain groups who are now protesting against the State and its criminal actions inside and abroad [1]. The introduction of a new set of restrictive laws regarding protest will send a clear message to protesters: “Stay at home and shut up or you might end up in prison”. This remains to be seen.

Whether the intention of this consultation is to introduce more draconian legislation or not, the consultation itself should not be conducted in the first place. Our freedoms should never be put to consultation or to a vote, regardless whether a majority votes for or against them. Consultations of this type are just an attempt to give a democratic look to a very undemocratic practice: the removal of individuals’ freedoms and rights by the State. It perpetuates the misleading assumption that democracy is based on the rule of the majority. The Italian and German experiences from the 1930s tell us that that is definitely not the case.

At the end of March, the government published two separated documents, 'The Governance of Britain: Analysis of Consultations' and 'The Governance of Britain – Draft Constitutional Renewal White Paper'. The first document includes an analysis of the results on the consultation ‘Managing Protest Around Parliament’ – that ended on the 17th of January - while the second details the Government’s policy proposals in light of these results. Among the proposals there is the repeal of sections 132-138 of the Serious Organised Crime and Police Act 2005, which tacitly force protestors to apply for authorization from the police in order to hold a demonstration within a 1 km exclusion zone around Parliament. Other provisions up for repeal included in these sections are the ban on the use of loudspeakers in the designated area and police powers to impose conditions on demonstrations around Parliament regarding place, time, number of people, banners/placards and noise levels. No doubt the repeal of these sections can only be good news to everyone. However, it did not come as a surprise. The consultation was, first of all, published with this intention in mind. We know this because the Metropolitan Police itself asked for a repeal of these sections, as it came clear in their response to the consultation [2]. The problem was not whether they wanted to repeal SOCPA or not. For many campaigners it was the question of what would come to replace it, since that legislation has proved highly ineffective regarding the original intentions of the Government when they managed to pass SOCPA: to get rid of Brian Haw peace camp and to ensure that political protest around Parliament could be rendered as ineffective as possible so they could go on about their normal businesses without being disturbed.

The worrying aspects of the consultation paper were the questions regarding the ‘harmonisation of legislation’, also a direct request by the Metropolitan Police and reflected in their response:

'In summary, the MPS believes that a prior notification scheme should continue to apply to processions that fall within s11(1) POA and should also apply to assemblies of 2 or more persons within the proposed area outlined above. The MPS also believes that it should have the ability to place conditions, on the basis of the grounds laid out above, on any procession, assembly or lone protest wherever it occurs prior to it taking place or during its currency.' [3]

The feature article published in Indymedia on the 16th November, 2007 titled 'Preserving Disorder: Freedom to Protest and the Future of SOCPA' (proposed by 'State of Emergency') first described the chilling effects such an ‘harmonisation’ could have on our ability to assemble and protest freely. ‘Harmonisation’ meant that the pre-SOCPA legislation that applied to ‘processions’ could also be extended to apply to all demonstrations, including assemblies, and in the whole country, not just the exclusion area. The pre-SOCPA legislation refers to sections 11-13 from the Public Order Act 1986 that forces organizers to notify the police in advance when they are holding a procession, also allowing for the police to impose conditions on that procession and even giving them the power to ban it altogether. A ‘procession’ is any two or more people moving in the same direction.

Section 14 of POA 1986 gives the police the power to impose conditions on assemblies, although they cannot ban them. An ‘assembly’ now means any two or more people with the same idea, standing still - as defined by the Anti-Social Behaviour Act 2003, Section 57/123. Conditions that can be imposed on assemblies refer to place, maximum duration and maximum number of people. Therefore, the good news in the recently published government white paper was not really the repeal of SOCPA but rather the fact that they seemed to have backtracked on their intentions of harmonisation. It looks like they are not going to propose new legislation that would make it an offence not to notify the police in advance that you will be holding an assembly and also removed the possibility of a straightforward ban of a public assembly:

'Given the strength of feeling in responses to the consultation document on potential restrictions on legitimate protest, and in the absence of greater evidence of a policing problem, the Government will not pursue harmonisation of the sorts of conditions that can be placed on marches and assemblies in the Public Order Act 1986.' [4]

This said, it is also clear from this paper that the Government is not giving up on the idea of introducing new legislation restricting freedom of assembly and protest around Parliament:

'In moving to repeal sections 132-138 of the Serious Organised Crime and Police Act, the Government nonetheless takes seriously the need to ensure that the operation of Parliament is safeguarded. …
The Government therefore invites the views of Parliament on whether additional provision is needed for the purpose of keeping passages leading to the House free and open while the House is sitting, or to ensure that, for example, excessive noise is not used to disrupt the workings of Parliament.' [5]

This intention has now been spelt out by the questions asked by the House of Commons Joint Committee on their call for evidence on the right to protest. Many of these questions directly refer to suggestions made by the Metropolitan Police, Westminster City Council and the GLA (Greater London Authority) in their responses to the consultation. Among the many there is, for example, the need to identify and target certain groups (with the help of the Police Forward Intelligence Teams [6] no doubt) in order to impose restrictions on them. For example, the GLA states in its response:

'It may be appropriate to develop criteria to distinguish between assemblies and marches to focus on timing, scale, size, and information on organisers requesting permissions, for example .' [My italics] [7]

The GLA also expressed its desire to limit the duration of any protest [8]. What form these new measures and legal changes might take is not clear yet, but what is puzzling is the fact that we know they already have legislation in place that allows for the repression of protest when and if needed. That legislation is - mainly but not only - the Public Order Act 1986.

Last October, the organizers of the Stop The War Coalition march to Parliament had notified the police in advance and sat down with them in order to negotiate the conditions of that protest (stewards, route, time, etc.), thus complying with Sections 11 and 12 of POA 1986. However, the Police walked out from negotiations with the Stop the War Coalition, announcing that they were not ‘facilitating’ their march – an euphemism meaning that they would use any means, including force, to stop that march happening. Many people were under the impression that, in doing so, the police had used powers granted them under SOCPA. In fact, when the police tried to justify the ban they mentioned a Sessional Order, under the 1839 Metropolitan Police Act [9], that was in reality an order from Parliament to the Police ‘to enable free passage by Peers and Members on days on which Parliament is sitting’ [10]. However, it was not actually possible for the police to legally use this Sessional Order to criminalise the organizers of the march, especially because non-compliance by protesters could not have constituted any offence. That Sessional Order is just an instruction of Parliament to the police and not legislation. However, Section 13 of POA 1986 gives the police the power to prohibit marches. This section justifies the prohibition of a procession in a particular area for no longer than three months when the police ‘reasonably believes’ that the procession could result in serious public disorder. At the end, the police decided not to exercise this power and finally allowed the march to happen.

These facts were largely mis-represented not only by the organizers of the 8th of October march but also the mainstream press. For example, in an article published in the Observer on October 7, 2007, Henry Porter forgets to mention that the STWC had been complying with POA 1986 all along and that power to ban that march was not really contained in SOCPA or the Sessional Order, but in POA 1986:

'That is where it becomes a problem. Instead of using the Serious Organised Crime and Police Act 2005, the law preventing demonstration within a kilometre of Parliament Square without police permission, the authorities have disinterred a Sessional Order of the House of Commons of the Metropolitan Police Act of 1839, passed at the time of the Chartists.

With archaic relish, they have banned the march because it may impede the progress of any MP or peer who wants to attend Parliament (it is surprising there is no mention of Mr Speaker's coach and four). The organisers have guaranteed that access, but the ban stays in place, which is odd given that the Prime Minister is on record as saying he wants to repeal the section of SOCPA that requires police permission.'

Even more worrying, the results of the consultation seem to have reinforced POA 1986, as most of those who sent a response merely stated that provisions under this Act are ‘sufficient’ to deal with processions and assemblies. One of the most paradoxical examples was Liberty’s response to the consultation, where they ask for a repeal of SOCPA while at the same time declaring:

'While Liberty may not support the level of interference permitted under the POA, the law exists, and in our view provides the police with more than adequate powers to manage public assemblies.' [11]

So, in light of these type of statements, where so-called civil liberties campaigners are not even able or willing to campaign against existing legislations they know to be wrong, the Government’s paper analyzing the results of the consultation finally states: ‘The overall view, however, was that the current framework of the Public Order Act should not be changed.’ [My italics] [12]

When the first day of action for free assembly was held on the 12th of January 2008, those present at that protest exercised non-compliance with both legislations, POA 1986 and SOCPA 2005, since what happened that day was at the same time an ‘assembly’ and a ‘procession’ (Under POA 1986 a march is a type of procession). Semantics aside, it might be the case that - even if at the end they do not introduce more restrictive legislations - the repeal of sections 132-138 of SOCPA will not mean that things will get any better since the police do not really need those sections in order to effectively repress protest all around the country. They will only need to stick to POA 1986 and the other legislations and measures introduced since then – such as the declaration of ‘dispersal zones’ - and apply them more often and harshly than they have done until now.

However, on the more pessimistic side, there is a high chance that the results from the call for evidence by the House of Commons Joint Committee will serve to justify a further extension of police powers contained under POA 1986. There is a good reason why Parliament is now listening carefully to any request by the Police. As the MPS clearly expressed in its response to the consultation, their suggestions are indeed to the interest of those now sitting in Parliament:

'The MPS believes that implementation of its proposals will ensure that those who wish to protest can continue to do so but in such a way that they do not hinder the operation of Parliament.' [13]

Certainly, the Government and Parliament in general are desperate to minimize the effectiveness of any protest, knowing they are right now embarked on a genocidal foreign policy and the unjust – and criminal - treatment of individuals inside the UK [14]. The result: the progressive removal of our freedom to assemble and protest for a long time to come and, therefore, the disappearance of nearly the only tool we have in order to defend ourselves and others from the increasing power and abuses of the State.

[1] This is already happening under Sections 145- 149 of the Serious Organised Crime and Police Act 2005 that target animal rights groups. These sections are not up for repeal. On how these sections have been applied on animal right groups see, for example, information on the 'Sequani 6' case: http://www.indymedia.org.uk/en/2008/05/398853.html and http://sequani.wordpress.com
[2] Actually they ask for a repeal of Sections 132-36 and Section 138 but not Section 137. This Section refers to the ban on the use of loudspeakers in the designated area. See 'The Governance of Britain - Managing Protest Around Parliament. Response from the Metropolitan Police Service', p. 5 and also the Serious Organised Crime and Police Act 2005, Section 137: http://www.statutelaw.gov.uk/legResults.aspx?activeTextDocId=2086243
However, the Goverment has proposed a repeal of this Section too. See 'The Governance of Britain – Draft Constitutional Renewal White Paper March 2008' p. 15
[3] 'The Governance of Britain - Managing Protest Around Parliament. Response from the Metropolitan Police Service' p. 6
[4] 'The Governance of Britain – Draft Constitutional Renewal White Paper March 2008', p. 15
[5] Ibid. p. 16. The two Houses of Parliament has just created a Joint Committee in order to come up with suggestions for new legislation that will replace Sections 132-138 of SOCPA. They are also asking for evidence. See
Also, in Indymedia:
[6] ‘Forward Intelligence Teams are units in UK Police forces that use high visibility police officers in full uniform. Using cameras, camcorders and audio recorders to conduct overt surveillance of the public. First appearing as part of the Public Order Intelligence Unit (CO11), a section of the Public Order Branch of the Metropolitan Police, they were initially targeted at football fans and political protesters, but the concept has since been extended to routine police work on low-level crime and disorder. Despite the implication in the name that their function is to gather intelligence they are actually intended to have a deterrent effect.’ Definition from: http://en.wikipedia.org/wiki/Forward_Intelligence_Team
[7] 'Managing Protest around Parliament-Response from the Mayor of London', p. 2
[8] Ibid. p. 3
[9] Sessional Orders are passed every year under this Act: ‘The House's Order to the Metropolitan Police (together with a similar order made each session by the House of Lords) is transmitted to the Metropolitan Police Commissioner, and results in his giving directions to constables under powers in section 52 of the Metropolitan Police Act 1839.’ See: http://www.publications.parliament.uk/pa/cm200203/cmselect/cmproced/855/85507.htm
[10] Ibid. Select Committee on Procedure Report, Nov 2003
[11] 'Liberty’s response to the Home Office Consultation: Managing Protest Around Parliament' – January 2008, p. 7
[12] 'Governance of Britain – Analysis of Consultations ‘Managing Protest Around Parliament’, p. 10
[13] 'The Governance of Britain - Managing Protest Around Parliament. Response from the Metropolitan Police Service', p. 7
[14] See for example Amnesty International Report on the UK: http://www.amnesty.org/en/region/europe-and-central-asia/western-europe/uk#report
Also Human Rights Watch:

* This article was published in Indymedia on the 5th May 2008 under the title 'Freedom to Protest and the Repeal of SOCPA'. See:

Next Campaign for Free Assembly public meeting:

Sunday 11th May 2-4pm
London School of Economics Connaught House
Room H101
Map: http://www.lse.ac.uk/resources/mapsAndDirections/

Campaign for Free Assembly
e-mail: freeassembly@riseup.net

1 comment:

Alexia said...

As someone who last saturday experienced first hand how the police fail to adhere to section 60. This is an issue we must urgently tackle.


This is my article on my experience of the police executing section 60 during the Gaza demo on Saturday 10 January 09