On 11 March we will debate at our Spring Conference in Gateshead an innocuous- sounding motion about Civil Liberties, but it needs to be looked at carefully to see if it is not more about letting people take liberties, than protecting our right to protest.
I know the Liberal Democrats do not support anarchy and mob rule, but you could be forgiven for thinking they do if you just read the motion, to be moved by Dr Julian Huppert, the MP for Cambridge and summed up by Tom Brake MP for Carshalton and Wallington.
I cannot see why the offence of aggravated trespass (sections 68 and 69 of the Criminal Justice and Public Order Act 1994) should be abolished as they propose.
The offence is only committed when trespassers interfere with lawful activities on any private property (land or buildings). An example is the Fortnum & Mason protest, where the shop was invaded by a large number of protestors who demonstrated in the shop and had to be removed by the police, as they would not leave when asked to do so.
Now, had the shop owners resorted to direct action to protect their business, this would have been perfectly legal, provided they did not use unnecessary force – they could have employed a private army of security guards with alsations to get the protestors out of the shop. Then they would have had to close the shop or keep the security guards there to keep them out. That is what they would have had to do if the offence of aggravated trespass had been abolished. Is that really what we want? Would we not be forcing people to take the law into their own hands?
We will not gain support or the respect of the public if we appear to side with those who do not respect the law. I think most of us would agree with the original aims of the Occupy movement, but disapprove of its methods. The Occupy movement antagonises the public when it refuses to respect the rights of others, which are supposed to be protected by the Human Rights Act. We will lose public support if we are seen to be on their side.
The motion proposes “A properly regulated right to protest in quasi-public spaces”.
This is wrong. There is no right to protest on private property without the owner’s consent, and rightly so.
You can read the full text of the policy motion by downloading the conference agenda. The motion starts on page 50.
* Michael Hall is a founder member of the Liberal Democrats, a retired solicitor, and former local party treasurer in Orpington and Bromley.
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30 Comments
Splendid argument – for authoritarian regimes. This may come as a shock to you but the very essence of a demonstration or a protest march is not some polite presentation of opposing view, or some courteous Edwardian difference of opinion – a determined demo march should embody menace and threat. Governments should be made aware of the power of those in whose name they govern, perhaps even fear them. For as the saying has it, in a democracy the government fears the people but in a tyranny the people fear the government.
Regarding the ‘properly regulated right to protest in quasi-public spaces’ I am minded of the situation in Harlow, where I used to be a councillor. A large area in the south of the town centre was ‘regenerated’ with the addition of shopping, a large car park and other amenities, including a new town hall as part of the package. This could not be achieved with public funds, so the then Labour council entered into a partnership with a private developer and thus with a private management company. The large area of the town centre concerned is therefore now no longer public space, but owned by the company. As a result, there is no automatic right for people to gather to protest, distribute leaflets etc outside the building where decisions are taken on their behalf. Increasing areas of once-public land are being ‘privatised’ in this way. Michael’s article reads as if the Liberal Democrats were calling for an automatic right of public assembly in individuals’ front gardens. It’s actually a rather more complex issue than that.
Define a quasi-public space. We shouldn’t let protestors disrupt shopping at Sainsbury’s by flooding the store. We should let them parade in the car park or outside the frontage (or indeed, just hand out Lib Dem leaflets or rattle tins for charities) provided they don’t block the way.
You are ignoring the dramatic acceleration, under the guise of regeneration, of the privatisation of public space which has taken hold of our cities in recent years. I don’t have a problem with Occupy’s tactics. In fact one useful thing they have done is demonstrate the extent to which spaces which we think of as public are actually owned and controlled by corporations. While I do, of course, support the rights of business to prosecute their trade I decry this growing trend for private interests to dictate the terms on which citizens participate in the public realm.
What about Demos that aim at intimidating The Public, those held by The EDL for example ?
Or take the pickets organised by Labour & their stooges that stopped a planned Libdem conference in London last autumn, do we want to allow more of that sort of thing ?
I take the point about quasi-public space, it need to be made public again. Im not sure that Occupy is auseful example though, surely they were trying to privatise the spaces even further by keeping other people out ? Their original aim was to prevent workers getting in to their work, how is that defending anyones Freedom ?
What an appalling article. Has there been some mistake? Its true home is on ConservativeHome.
There is a big issue around quasi-public space (or space which looks public but is in fact private). Aggravated trespass was originally introduced as part of the notorious Criminal Justice & Public Law Act 1994, an Act so authoritarian, Jack Straw in opposition supported it (and turned me into a Liberal Democrat activist in the process.) It was originally designed to stop illegal raves (and has not succeeded in doing so), but is framed such as to be used in all sorts of ways.
Lorna is right, and when Wokingham Council sold much of Woodley town centre in Berkshire, they created the potential for all sorts of confusion if banners were to be waved there.
Julian’s motion is an excellent one. Some of us think that it could go rather further in taking steps to prevent the abuse of poorly-drafted legislation in addition to all those dreadful laws it lists as ripe for abolition, and will be tabling an amendment as such.
The civil liberties motion is so long that it gives the audience many points to disagree with. At the time I campaigned against the Criminal Justice and Public Order Bill I would have agreed with the points in the motion in their entirety, if I had thought of them in 1993/94. Now I think there are two sides to many of the arguments – including on aggravated trespass. But the Government mislead people over what that legislation would be used for, the same was done by Conservatives and Labour and Liberal Democrats with harassment legislation. Over wide legislation passed for knee jerk reasons has been used to criminalise peaceful protest. On that I agree with Gareth and Julian.
The problem with Mike Hall’s original post, and one or two the comments, is that it sees things in black and white.
A kitchen sink motion may upset some representatives but if one reads the sentiment it is spot on. There is some great content and in addition to the critique of over wide offences or misuse of powers / lack of safeguards, I think “A properly regulated right to protest in quasi-public spaces to balance the interests of citizens and landowners” is really inspired. This is not about impeding business but about allowing people to live their lives in our towns and cities, including by protest if they wish. Lorna’s example is an excellent one. The Public Order Act would include all of those ‘private’ commercial spaces as public for that act – so why not for the right to protest.
I’d love to know if Mr Hall would support the right to protest against Julian’s motion… on private property…
@Mike Cobley
So you believe, do you, that it is quite all right if demonstrators intimidate and threaten and assault people, who they identify as associated with the Government, such as party members at a Conference? Some of our senior members were attacked and abused in the street in Sheffield last Spring. That was all fine then as they were allied to the Government.
@Gareth Epps
You will have gathered that I do not like parts of Julian’s motion, but I am not a Conservative and I think it is unworthy of you to resort to mere vulgar abuse by suggesting that I have anything in common with such a low form of life.
I understand that the 1994 Act was the work of Michael Howard, and was an attack on counter-culture and I concede that it, and how it is applied, need to be looked at carefully. But I cannot see anything wrong with sections 68 and 69.
The motion is too long and there should have been a policy paper detailing how and why the eight Acts mentioned need to be repealed or revised. This is all too important to cover off in an hour of debate.
The motion if passed in its present form will lose us support. It reads as very anti-police and anti-law-enforcement generally.
Every one of the subparagraphs a) to k) of para 3 is saying that the job of the police must be made more difficult, that their ability to keep public order and detect and prosecute crime must be curtailed.
The Government cannot grant people a right to demonstrate on your private property, that would infringe Art 1 of the 1st Protocol of the ECHR.
Local authorities should be allowed to compulsorily purchase quasi-public spaces such as town squares in shopping centres. Until the community buys the land, it has to accept that the land is privately owned and that the Courts will uphold the rights of the landowners.
“There is no right to protest on private property without the owner’s consent, and rightly so.”
A thoroughly liberal point of view.
I’d like to make two quick comments, the first relating to Michael Hall’s original article and the second to his reply to Gareth Epps.
First, the article says: “I know the Liberal Democrats do not support anarchy and mob rule, but you could be forgiven for thinking they do if you just read the motion […]. I cannot see why the offence of aggravated trespass (sections 68 and 69 of the Criminal Justice and Public Order Act 1994) should be abolished as they propose.”
Did we have “anarchy and mob rule” before 1994?
Secondly, the reply to Gareth Epps says: “The Government cannot grant people a right to demonstrate on your private property, that would infringe Art 1 of the 1st Protocol of the ECHR.”
But the abolition of the *extra* offence of aggravated trespass would not introduce such a right, it would simply remove the extra offence.
Brian Robinson
You have to read the whole motion to understand why I think it gives the impression that the movers are on the side of those who want to flout the law and who do not respect the rights of others. I am mainly referring to paragraph 3 and its 11 subparagraphs which are all about stopping the police and bailiffs doing what they do. I am not saying all 11 points are wrong. Outbreaks of serious disorder, which I called anarchy and mob rule in a flagrant attempt to gain attention, did occur before 1994 and still do occur. Granting a “properly regulated” right to protest on private property (referred to as ‘quasi-public’) is also what the motion proposes in paragraph 2(b). This does not refer to paragraph 2(a) which is about repeal of aggravated trespass, a separate issue. My point is that you cannot “properly regulate” trespass, as it is a civil wrong. We cannot have the criminal law permitting or regulating something that the civil law totally prohibits. That would be inconsistent. We cannot change the civil law on trespass without infringing Article 1 of the 1st Protocol. This is the human right which is infringed when a Government seizes private property without compensation. Regarding public areas in privately owned shopping malls etc, Councils can impose conditions in planning agreements when granting permission to say that demonstrations must be allowed or they can require areas to be dedicated as public highway.
“Regarding public areas in privately owned shopping malls etc, Councils can impose conditions in planning agreements when granting permission to say that demonstrations must be allowed or they can require areas to be dedicated as public highway.”
What would induce Council planning officers to give these ideas the time of day? Commonly they are wrestling with controversy and local protest against development, and doing their best to negotiate favourable Section 106 agreements involving payments by the developer for good things like transport improvements. They aren’t going to kybosh their negotiating positions by telling the likes of Asda to prepare for their new car park to become the local Tahrir Square (especially as nobody else’s established supermarket will be in that position).
Let’s see a rational change to the law instead.
David Allen – spot on. I shall be polite and say Mr Hall betrays his complete lack of experience of local government.
David Allen
No one is suggesting mass demonstrations of the kind we saw in Libya and other countries in the Arab Spring
Council officers of a Liberal Democrat run Council which has a policy of allowing free expression, would have to accept this was the policy of the Council. I do not think it can be imposed retrospectively but only at the outset.
Gareth Epps
Mind what you say. You obviously don’t know anything about me.
Intervening, I’d like to offer the point of view that Michael Hall is offering a slippery slope argument.
As mike cobley’s first comment suggests, demonstrations should be a manifest expression of public power, which can engender implied threats of concerted dissent. However the response was to state opposition to intimidatory threats and potential assaults – something surely already covered by the law.
So the invective here is at crossed purposes and unhelpful to the issue.
Clearly there is a major difference between private property and artificially restricted access to public space which there is a pressing need for the law to clarify. Julian Huppert is to be commended for seeking this.
Gareth,
Whilst you’re entitled to your view, I vaguely remember Michael from my time as London Region’s contact with Bromley and Bexley. Age and memory being what they are, I looked him up, and it turns out that he has spent almost as long as a councillor on a principal local authority as you have, having been one of the three councillors for Chelsfield and Goddington between 1994 and 2002, alongside an old mate of mine, Graem Peters.
So, whilst you’re free to disagree with him, you might like to reconsider your suggestion that, as a lawyer and two-term Liberal Democrat councillor in a London Borough under a Lib Dem/Labour coalition, he has no knowledge of local government or of the law, as it seems that he might have rather more knowledge than you give him credit for. And whilst I wouldn’t for one moment suggest that he might have more knowledge than you do, your approach to debate might sway the argument towards him.
I think what Mark is saying is “be careful or you’ll find the Epps line barred by us.”
Tabman,
I genuinely hope not. As one of the newer day editors, I tend to a more laissez-faire approach to comments – robust debate can only help us to develop and defend policy and ideas. However, I can’t help but feel that Gareth is, in this instance, thoroughly playing the man and not the ball.
One of the delights of being a liberal is the sense of constructive debate, and if we attack people and not their ideas, we are hardly engendering it. So, I can only ask Gareth to draw breath, count to ten, and then carry on as he sees fit. Or in other words, play nice(r), please…
Mark – apologies – jokes explained aren’t really jokes – I was trying to find a homophone for Epstein-Barr Virus …
Tabman,
Clever. My apologies for not getting it sooner – I’ve just returned from a trip away and am slightly distracted by piles of ‘stuff’ that needs to get done 🙂
It was a bit obscure … 🙁
Tabman — even for you, that was way beyond obscure! 😉
Malcolm Todd – I wish there was a “like” button!
Well, just as in Gareth’s example, I live in a town where the “public spaces” in the town centre are completely owned by a company, and I think he makes an excellent point. Its nothing to do with counter culture. If I buy up an unfenced pedestrianised open part of my town centre as an individual or a corporation I can’t realistically expect to control everything that happens in that space.
Michael,
Clearly I shouldn’t have mentioned Tahrir Square. I was just imagining what kind of thoughts might run through the mind of (say) an Asda executive if the local council planners were to “impose conditions in planning agreements when granting permission to say that demonstrations must be allowed”. As Oranjepan indicates, the planners would indeed have been able to explain that coercive or disruptive demonstrations would be subject to the rule of law. If I were said Asda exec, I would have nevertheless felt rather underwhelmed by such an explanation, and would have taken vigorous action to make sure Asda were not being put at a disadvantage compared to the established Sainsbury’s down the road where no demonstrations were permitted. I suspect that threatening to expose the Council as discriminating unfairly between one supermarket and another would have done the trick.
However, if I knew that all supermarket car parks were places where legally defined as people could occasionally get in and hand out a few leaflets provided they didn’t obstruct, I guess that I would report to my boss at Asda that we should shrug our shoulders and put up with a slight impediment to our optimised marketing which was shared by all our competitors.
I dare say you have extensive Council experience, but demonstrating it would look better than grumbling at those who don’t agree with you.
Correction: “However, if I knew that all supermarket car parks were legally defined as places where people could occasionally get in….” .. Sorry!
Mark Valladares
Thank you for making that point.
Oranjepan
I don’t know if you were at Sheffield last Spring, but they were not just implied threats from the demonstrators. We needed police protection and it was provided at great expense. Nevertheless some of our members were attacked in the street.
David Allen
I am glad you recognise that unrestrained protests and demonstrations, and the occupation of private property, are bad for business, and if they are not accepted in private shopping centres that is an indication surely that the police need to be allowed to control them in public places as well when they become too disruptive and turn violent.
It is not just me saying that you cannot legalise trespass. Look at the Human Rights Act. My suggestion of using section 106 agreements is not a new one and I think it has been done – but I cannot remember where.
I don’t mind people disagreeing with me, but I object to name calling.
The motion includes some points I really cannot understand, such as a ban on the police taking photographs of groups people (which obviously may include some more or less innocent people). This would mean we are against all CCTV. The motion attempts to restrict intelligence gathering by the police. What is wrong with mobile fingerprint devices? They can be used to check identities and arrest wanted criminals, saving the time otherwise spent taking people to the police station. They are therefore a thoroughly good thing. If we are against this we are against law enforcement. Terrorists photograph police in order to target them when off duty. Why should they accept this? Why does 3.K) refer to the police when the covert surveillance which has been criticised is often by councils and other authorities. Why is covert surveillance by the police unfair and unwarranted? Obviously they don’t do it just for fun.
This reinforces the impression that the thrust of the motion is deliberately anti-police.
There is clearly an issue with public space being turned in to private space. We are seeing it all the time with out of town retail developments and town centre regenerations.
I used to live in a town in Oxfordshire and was a member of a fair trade action group. The town had undergone a redevelopment which meant the centre of gravity in terms of shopping changed from the main road i.e a public space to a retail development a couple of hundred metres away. The retail development was obviously a private space. The centre of the development was and is a large Sainsburys store. The manager of the retail park gave permission for a fair trade stall, but later took it away when he found out the stall was going to include a petition asking Sainsburys to stock more fairtrade goods. So the fairtrade group was prohibited from campaigning in an area where large numbers of people gathered. We were not going to do anything illegal or immoral, but it was felt we were threatening the interests of a local big business. Eventually, after intervention from The Chamber of Commerce, the stall went ahead but only after the petition was dropped.
No sensible person would be in favour of anarchy, disorder, vandalism or preventing the police doing their work. However, the way our towns and cities are developing is threatening campaigning that might upset big corporations.
Lee Thacker
Thank you very much for your interesting contribution and I entirely agree with what you say.
Incidentally I have been doing some more research and to inform the debate it may be helpful for people to read the amendment proposed to the Protection of Freedoms Bill on the issue of protests in quasi-public spaces
http://www.publications.parliament.uk/pa/bills/cbill/2010-2011/0146/amend/pbc1461705a.2205-2209.html
This has not been selected for debate and it may be that it can be reintroduced in the Lords. I am not sure that the definition of quasi-public spaces “dedicated to the use of the public” has any clear meaning, and if it means adopted, the ownership of the subsoil may be irrelevant anyway – it is actually public space, so it may need a bit more work.
JUSTICE (www.justice.org.uk) has suggested in evidence to the Parliamentary Joint Committee on Human Rights that shopping centres during opening hours should be treated as public space for the purposes of protests, but this idea was not accepted by the ECtHR in Appleby v UK http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=801696&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
This does not mean that the properly regulated right to protest cannot be granted as proposed, if the Governement accepts its obligation to pay compensation to the owners for any loss of business or damage resulting.
I’ve still found nothing to support the repeal of sections 68 and 69 of the Criminal Justice and Public Order Act 1994 though and would be really interested to know if anyone can explain this suggestion. I know the Fortnum & Mason trial was a fiasco and that too many people were arrested, and perhaps they should all have been turned out and let go, but that’s not really a good enough reason for the repeal .