Lord C-J calls for restriction on PSPO's
Back in the Summer buskers, civil liberty campaigners and many others protested about the increasing use of PSPO's a subject on which I have been campaigning ever since the Anti Social Crime and policing Bill became law.
See here
https://youtu.be/hI4oGE9JxSk
Recently I held a debate in the House of Lords to highlight the growing problem and the many examples where these powers had been used inappropriately and without proper authority or accountability. Our aim is to get the Government at the very least to change the guidance given to Local Authorities (the "Statutory Guidance") to make sure the powers are properly exercised and if that is enough to amend the original Act.
My Lords, I have for many years been passionate about the future of live music and am only too well aware that many of our most famous acts can have small beginnings, with many well-known artists starting their careers performing in small clubs and pubs or busking on the streets. It was for that reason that I promoted the Live Music Act 2012 and why, on my Benches, we became concerned about the impact of public space protection order powers under the Anti-social Behaviour, Crime and Policing Act 2014.
In response to concerns expressed by my noble friend Lady Hamwee on Report, the noble Lord, Lord Taylor of Holbeach, confirmed the importance of the statutory guidance, which would be consulted on. Ominously, he said that the essence was to allow councils maximum flexibility on the exercise of the new powers. That, I believe, is the root cause of the problem today.
Shortly afterwards, in January, I raised a Question in the House seeking further assurance on busking policy to make sure that local authorities would not resort to a PSPO before they had first exercised their noise-abatement powers. The noble Lord, Lord Taylor, said:
“The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all”.
He also said:
“We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable”.—[Official Report, 21/1/14; col. 571.]
In June of the same year, I raised issues regarding police attitudes to busking and received an equally positive reply from the noble Baroness, Lady Williams of Trafford, who I am delighted is replying to this debate. She said that,
“the Government are clear that appropriate busking can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people”.
She also said that,
“we have undertaken … to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year”.—[Official Report, 30/6/14; cols. 1531-32.]
Later in the year, in a different context, during the passage of the Deregulation Bill, both in Grand Committee and on Report, my noble friend Lord Stoneham and I pointed out the considerable powers that were already available to prevent noise nuisance. At the same time, we raised our continuing concern that public space protection orders would be used in a heavy-handed way. The Government, this time in the form of the noble Lord, Lord Gardiner of Kimble, gave assurances on both occasions that they were clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. But later he said:
“The Government do not start from the position that busking requires regulation and control”.—[Official Report, 11/11/14; col. GC 46.]
So right from the start we received a series of ministerial assurances about how the new PSPO would be exercised. Nevertheless, very soon, signs began to emerge of inappropriate use of the PSPO powers.
In February 2015, I asked an Oral Question about the operation of the Act and what use had been made of it to prevent or control busking. In reply, the noble Baroness, Lady Williams, said:
“We have made it clear in the statutory guidance for front-line professionals that they should not use the new powers to stop reasonable activities such as busking or other forms of street entertainment that are not causing anti-social behaviour”.—[Official Report, 12/2/15; col. 1354.]
Despite those ministerial assurances, it was becoming clear a year and a half ago that these powers were being used extensively in an inappropriate and disproportionate way. In fact, they were not just being used inappropriately to ban busking, they were being invoked for much wider purposes—for instance, to ban the homeless from the streets. In February this year, the Manifesto Club published its report, PSPOs: A Busybodies’ Charter, reflecting this, pointing out the extensive and disproportionate use of these powers and calling for proper limits to be placed on them.
In response to an Oral Question this February, I received yet more assurances from yet another Minister, this time the noble Lord, Lord Ahmad of Wimbledon. He said that,
“we have made it clear in the statutory guidance that anti-social behaviour powers should not be used against reasonable activities such as busking, where this does not cross the line into anti-social behaviour”.—[Official Report, 1/2/16; col. 1585.]
Despite a succession of assurances given over the years by at least four government Ministers, the problem of the inappropriate use of PSPOs worsens. Buskers are now falling foul of laws designed to break up dangerous public gatherings and risk being branded as criminals. The problem goes much wider. The Manifesto Club report shows that PSPOs are being used not only to criminalise busking but also the everyday lives of ordinary people, including the activities of the homeless, charity collectors, teenagers, skateboarders, parents dropping off kids at school and even those wearing head coverings.
Sefton Council’s ban on head coverings would include hats. Other councils, such as North East Derbyshire, have prohibited or are seeking to prohibit the carrying of golf bags, or the carrying of skateboards, as in Colchester. At least five have banned rough sleeping. Others, such as Gravesham Council, have prohibited lying down in public, which would prohibit lying on the grass or falling asleep in a public place.
At least six councils have banned or restricted music or street art. Hammersmith and Fulham Council has banned busking and public speaking in the area outside Shepherd’s Bush Tube station after 6 pm. At least 16 have created new criminal offences of loitering or congregating in groups in a public place. Hillingdon Council has prohibited people from gathering in groups of two or more unless at a designated bus stop, and Bassetlaw Council has banned young people aged 16 or under from standing in groups of three or more.
Kettering Council has banned skateboarding and created a curfew for under-18s, meaning it is now a crime for a 17 year-old to be out after 11 pm or before 6 am. In Oxford, the council has proposed a ban on any activity it judges makes people feel uncomfortable, and a city-centre PSPO has banned aggressive begging, street entertainment that causes a nuisance, remaining in a public toilet without reasonable excuse, and allowing dogs to enter any covered space. Hillingdon Council has banned noisy remote-controlled cars and pigeon feeding from its parks. Swindon Council has banned pavement art, thereby criminalising its resident and well-known pavement poet Danny Lake, even though 68% of the public voted against this.
So far, 80 councils have introduced PSPOs and more are threatening to bring them in. Police and local authorities, often based on the decision of a single official, and without consultation or a council decision, are throwing new orders about like confetti. A huge number of people are being dragged into the net of the criminal law. Clearly, the problem of improper use of these new powers extends well beyond busking: it is high time we took stock of this and amended the statutory guidance and, if necessary, the primary legislation, before our freedoms are eroded any further.
However, there may be a ray of sunshine. After my Oral Question last February, at the invitation of the noble Lord, Lord Ahmad, I, together with the Manifesto Club, the Kennel Club, Liberty, Keep Streets Live, the MU, UK Music, and others, wrote to him and his then Home Office colleague, Karen Bradley, to set out the current issues and demonstrate why changes are needed to the legislation and statutory guidance. Karen Bradley—now, I hope, in her new role stoutly upholding the rights of street performers and their contribution to local culture—wrote back defending PSPOs and the procedures used. She did, however, offer to consider amending the statutory guidance, and I replied in July, setting out what campaigners believe are the key problems and the changes needed to solve them. Let me spell these out.
First, PSPOs are targeting activities that are not in themselves harmful. The most problematic examples have banned activities that do not in themselves cause significant public nuisance or harm, such as rough sleeping, begging, loitering, standing in groups, swearing or skateboarding. We want to see a much stronger test before powers are used. PSPOs must target only activities that are causing significant public nuisance or harm; councils should not be able to use them for activities that some people just find annoying or unpleasant.
Secondly, the majority of PSPOs are being passed by single council officers. The Manifesto Club’s research found that out of the 56 councils that have passed a PSPO and provided data, half—that is 28 councils—have done this. Seventeen councils—30%—passed the order through a committee, but only nine—16%—passed it through a decision of the full council. They must be passed only after a debate of the full council and not based on decision of a single officer.
Thirdly, PSPOs are not being consulted on adequately. Although most councils have held a public consultation, in many cases these have been of extremely low quality. There must be a requirement for proper consultation, so that they cannot be imposed having asked just a few vague questions of residents.
Fourthly, the grounds and methods of appeal are too limited. We believe that the Government intended that these powers should be partly checked through the courts. There should be a much better right of appeal. Currently, appellants have very narrow grounds to appeal to the High Court, only six weeks to appeal and have to bear all the costs if they fail. The grounds of appeal should be expanded to something more like the test for judicial review, which would allow the worst cases of unreasonable PSPOs to be challenged and checked in the courts.
I am sure that we are here in the area of unintended consequences. Given Ministers’ assurances, I am sure that they did not intend the Act to be used in this way—banning rough sleeping, placing curfews on teenagers and so on. It is urgent and vital that they recognise that there is a fundamental problem with the Act. This may or may not be resolvable by changes to the guidance. I hope that we are making some progress and that amendments to the statutory guidance are being drafted as we speak but, in the light of the history of ministerial reassurances on this, I do not take anything for granted. I should like to hear specifically what is proposed.
Hence this debate about how the Government plan to ensure that these powers are invoked and exercised in an accountable, appropriate and proportionate manner: to find out whether demands for change, particularly to the statutory guidance, will be met. We cannot have local authorities and police services cracking down on our culture, ripping out the heart of our town centres and destroying the vibrancy of our local communities.
I have a note here from the Salvation Army. It states:
“Thank you for sponsoring a debate on the operation of the 2014 Act. We have had three of our front line locations raise concerns about the way in which Local Authorities are using Public Space Protection Orders in connection with homeless people spending time in public spaces … We would ask that government clarify their guidance to Local Authorities saying that PSPOs are not to be used to disperse homeless people rather than engage with them”.
I hope the Minister can today give cast-iron guarantees that the Government intend to make vital changes and will see them through.
Lord C-J Debates Rule of Law and the global role of English Law and Lawyers
In a recent debate on "the contribution of the legal systems of this country to the international standing of the United Kingdom and the observance of the rule of law in this country and abroad" I described the important role of the legal profession here and abroad..
http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/140710-0002.htm#14071063000808
As Lord Hodgson, said earlier in the debate, the rule of law in the English legal system is a major source of British influence abroad, as the recent report by the Select Committee on soft power of this House made very clear.
I had the great pleasure recently of participating with the noble and learned Lord, Lord Woolf, in a conference on the rule of law in Turkey, which was a very timely reminder in that country of the essential values inherent in the concept of rule of law, and I thank him for initiating this superb debate today. Many noble Lords have mentioned the fact that next year we are celebrating the 800th anniversary of Magna Carta through the Global Law Summit and other events. It is particularly important that we hand down this tradition to each new generation and that they are made aware of how precious it is.
The rule of law is not only a philosophical ideal and a bastion of individual rights. Our legal framework is critical to economic development, to the creation of jobs and to a successful market economy. A key factor is the integrity and independence of the judiciary and, as my noble friend Lord Marks said, London has become a world leader in dispute resolution. English legal practitioners are another reason for using English law. We have a long and well respected tradition of excellent legal services based on trust and performance. Huge effort over the past few years is beginning to result in a much more diverse profession, with commitment to the PRIME initiative by an alliance of law firms and legal departments across the United Kingdom to broaden access to the legal profession. Pro bono ethos and practice is much more embedded, too, within the legal profession. The noble Lord, Lord Livingston of Parkhead, in his first contribution to this House last December, confirmed his view that the legal services sector is one of the most important sectors for the UK. In fact, it employs almost 350,000 people. The noble Lord, Lord Pannick, referred to the fact that the rule of law is now one of Britain’s great exports; exports of legal services totalled more than £4 billion last year.
Our law and law firms are becoming ever more international to meet the needs of businesses. Law firms such as my own have responded by becoming international in their own outlook, establishing a global presence. There are close links between legal education, our laws and the legal sector. We attract students from all over the world. This needs to be nurtured. The coming decade promises to see increased competition as other cities such as Paris, New York and Hong Kong aspire to compete with London as a world leader in legal services.
We also face legislative threats such as the common European sales law being proposed by the European Commission as an EU civil law alternative to English common law. Protectionist regulations in growth markets such as India and a number of other emerging markets are, however, a major stumbling block, inhibiting the export of UK legal services and, indeed, opportunities for their own lawyers. The profession and the Government have, rightly, made persuading emerging markets to tear down their barriers to entry a key priority. Staring in 2011, the Ministry of Justice’s Plan for Growth set out the importance of English law and English legal services to the UK economy, and the need to open up overseas markets.
Our position in Europe is vital in achieving this goal. Another benefit from the EU is the freedom of establishment under the establishment directive. No wonder that, according to a recent CBI survey, two-thirds of law firms think that leaving the EU will have serious negative consequences. The challenges we face to ensure that the UK remains the world leader in the rule of law, in our standards of justice, in the provision of legal services and in the opportunities that exist in international jurisdictions are significant. However, we can meet them if we heed today’s warnings. I hope that we will be able to fulfil, as Ken Clarke said when he was Lord Chancellor, the UK ambition of becoming lawyer and adviser to the world.
Lord C-J Debates freedom of speech in Turkey
I recently attended a major conference on the Rule of Law in Istanbul alongside a number of other senior British Parliamentarians and representatives and a very broad cross section of NGO's, judges and others concerned with human and civil rights from a wide variety of jurisdictions. The Rule of Law and Freedom of Expression are crucial issues in Turkey today and are under threat. Here is what I said.
Media and Internet in a Democratic State
Freedom of the media is a vital pillar of the rule of law and its protection is related strongly to the independence of the judiciary as we heard this morning. It is also a very topical subject on which to end this superb symposium and very closely related to the health of democracies both old and new.
The 20th century philosopher Alexander Meiklejohn put it well when he that stated democracy cannot not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism.
Today’s panel session is very timely. Back in 1993 May 3rd was designated by UNESCO as World Press Freedom day.
It is a day to celebrate the fundamental principles of press freedom; to evaluate press freedom around the world, to defend the media from attacks on their independence and to pay tribute to journalists who have lost their lives in the exercise of their profession.
In this month of May in particular therefore we should remember that it is often journalists who pay the price for protecting freedom of expression
In the words of the former SundayTimes editor Harold Evans “The price of truth has gone up grievously,” commenting on the terrible annual roll call of journalists who die whilst carrying out their profession.
At the beginning of every year, the International Federation of Journalists (IFJ) publishes a report on the journalists killed in this previous year. 105 journalists and news media personnel were killed during 2013.
In that context we should remember Hrant Dink the editor of Agos who was killed in Istanbul 7 years ago.
Although there are some broad principles enunciated in Article 19 of the International Covenant on Civil and Political Rights( ICCPR) article 10 of the ECHR and the American First Amendment, in my own country Britain much of the development of traditional freedoms are judge made and depend on the decisions of the courts made at different times in response to different events.
It has often taken stubborn and courageous individuals to taken action to defend these principles and to have secured freedom of speech and of the press.
John Milton the famous poet, author of Paradise Lost and religious puritan, in Areopagitica, a famous defence of free speech and against the licensing of publication and censorship and was published in 1644 without a license, made an impassioned plea for freedom of expression stating:
"Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."
In my former political party the Liberal Party, the predecessor to the Liberal Democrats, a copy of Areopagitica was ceremonially handed to each incoming President to remind us all of the importance of free speech.
Milton was however unsuccessful in persuading Oliver Cromwell’s government to abolish licensing and censorship.
Some say in fact that our current freedoms in Britain arose by accident when the Licensing of the Press Act 1662, which was time limited to two years, was by an oversight not renewed by Parliament in 1679.
This led temporarily to what has been called “an explosion of news print”.
The Act was in fact renewed a few years later but the benefits of a free press had clearly been shown and in 1695 the Licensing Act was repealed- the last time as our media have recently been reminding us-Britain had statutory regulation of the press.
It was to transform Britain into a nation of news lovers and the liberty of the press rapidly became a cornerstone of British democracy.
As if to remind us in the British Parliament of the importance of the freedom of the press there is currently an exhibition taking place in Parliament featuring portraits and caricatures of one of the most famous defenders of press freedom in Britain, John Wilkes.
John Wilkes was a member of the British parliament who turned to journalism. In 1762 he launched a newspaper, the 'North Briton', aimed at countering the policy of the government headed by the Scottish Earl of Bute to make peace with France.
Through his writing he successfully forced The Prime Minister's resignation but he went too far and criticized the Monarch, King George III directly. The result was the issuing of a warrant seeking his arrest for the publication of what was called a seditious libel.
Wilkes successfully claimed privilege as an MP to secure his release but soon was expelled from the House of Commons and was forced to go into exile, remaining abroad for the next five years.
During this period he once again faced charges for seditious libel; he was sentenced to 22 months in prison. But by this time he was a national celebrity. He successfully re-entered politics even becoming Lord Mayor of the city of London !
Yet whilst we can celebrate the historic breakthroughs of the past very few countries including the UK nowadays are immune from criticism.
The annual index of media freedom, Freedom of Press, is published by the US-based Freedom House, an NGO established in 1941 that has been ranking countries worldwide since 1980 in relation to democracy, human rights and press freedom
Britain in the 2014 index has slipped down their global rankings as a result of the UK government's actions in relation to the Guardian newspaper over its reporting of whistleblower Edward Snowden's surveillance disclosures, with threats of legal action, the destruction of computer hard drives and the nine-hour detention of David Miranda, the partner of journalist Glenn Greenwald, at Heathrow en route from Berlin to his home in Rio de Janeiro.
Generally however Freedom House say that said press freedom worldwide has fallen to its lowest level for over a decade. It partly blames regressive steps in countries such as Egypt, Libya, Jordan, Turkey and Ukraine, as well as the actions taken against journalists reporting on national security issues in both the US and UK.
Sadly a large essaywritingstar.com change occurred in Turkey’s ranking, whose classification has moved from Partly Free to Not Free. This reinforces the Pen International Report on restrictions on freedom of expression following the Gezi Park protests.
It seems that constitutional guarantees of freedom of the press and expression are only partially upheld in practice, undermined by restrictive provisions in the criminal code and the Anti-Terrorism Act.
According to the committee to Protect Journalists Turkey remains the world’s leading jailer of journalists in 2013, with 40 behind bars as of December 1,
The fall in the rankings was of course before the recent blocking of YouTube and Twitter, the law increasing the powers of the National Intelligence Agency- the MIT law- and new internet censorship measures.
According to Reporters Without Borders, more than a third of the world's people live in countries where there is no press freedom. These are countries where there is no system of democracy or where there are serious deficiencies in the democratic process.
A free press is a real problem a for most non-democratic systems of government since, in the modern age, strict control of access to information is critical to the existence of most non-democratic governments and their associated control systems and security apparatus.
Turkey IS a democracy but brave contemporary Turkish newspaper editors and journalists such Ahmet Şıkhave (who has won the 2014 UNESCO Guillermo Cano World Press Freedom Prize) have had to play an important role in protecting the principles of press freedom.
It may appear that there is a press freedom gold standard in some countries but the truth is that even in mature democracies there is a constant struggle between different actors in public life, between the media and politicians and officials and business too, who often may wish for commercial and reputational reasons to conceal their activities. All this means that inevitably there is an element of subjectivity in what is accepted as necessary freedom of expression at any one time.
John Locke the famous late 17th Century British philosopher expressed the principle of valid limitations to free speech when he made the distinction between the concepts Liberty on the one hand and Licence on the other, essentially the abuse of liberty to harm others.
John Stuart Mill the influential 19th British philosopher in “On Liberty” published in 1859 also acknowledged the need for limits on free speech in certain circumstances.
But for Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of free speech.
As he said.
"the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others."
More pithy was US Judge Oliver Wendell Holmes who made the memorable observation that freedom of speech should not include the freedom to shout ‘Fire!’ in a crowded theatre.
Of course nowadays we have much stronger regard for certain rights such as the right of privacy, and governments assert national security when they can so there is a continuous debate about what limits can legitimately be placed on freedom of expression which go beyond those stated by Mill.
Article 19 of the ICCPR for example states that
"everyone shall have the right to hold opinions without interference" and "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".
But it goes on to say that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary "for respect of the rights or reputation of others" or "for the protection of national security or of public order (order public), or of public health or morals".
Views of the proper extent of these restrictions differ between governments, people, parties and institutions.
Most recently in theUK there has been vigorous debate over the whole question of publishing sensitive national security information in the Edward Snowdon case.
Snowden, who worked for both the CIA and the NSA, leaked tens of thousands of secret documents to the Guardian and the Washington Post. Indeed his revelations about the scope of surveillance sparked a worldwide debate about the balance between national security and privacy
For some governments the leaks we're seen as putting lives at risk or potentially seriously damaging their ability to monitor terrorists.
For a newspaper such as the Guardian or campaigners like Julian Assange whose WikiLeaks whistleblower website published a large set of classified documents leaked by Private Bradley Manning, however, this was justified on public interest grounds as exposing state sponsored misbehaviour or worse.
We need to acknowledge of course the need to be vigilant not just about government repression of the media but the other sides of the coin, press standards.
The tabloid media in the UK has recently had to look at itself in the mirror and tighten up its standards and complaints procedures considerably since the so called “phone hacking scandal” where former News of the World journalists have been charged and in some cases convicted of intercepting private phone messages and the ensuing public enquiry by The distinguished Judge, Sir Brian Leveson Leveson into the culture, practices and ethics of the British press.
In a culture where any form of government regulation has been fiercely resisted for three hundred years even his limited proposals for regulation have however been strongly resisted by many in the media.
There are other aspects necessary for a free press too. The House of Lords Communications Committee on which I sit has in the past two years carried our Reports on the Future of Investigative Journalism and on Media Plurality.
The health of investigative journalism is vital to a strong democracy.
But is threatened by the economics of the digital age where newspaper have less resources to investigate and where definitions of what forms of journalistic behaviour is in the public interest are sometimes not clear and can lead to prosecution.
Media plurality is also vital for democratic life. We need to have a proper diversity of opinion across the political spectrum.
There need to be regulatory mechanisms to ensure that this mix of opinion is preserved. This is not the same as regulating content however or ensuring that there is competition in the media although economic concentration can sometimes lead to the same outcome.
The internet of course has brought new challenges and arguments about the proper boundary between liberty and licence. Most citizens would agree with the need to protect children from abusive and pornographic online content and the banning of racist material.
How far can libel laws be invoked to gag criticism? Should the rules applicable to the internet be different from those offline? Does the online blogger have the same responsibilities to prevent harm?
The debate whether the internet is somehow special still continues but all democratic countries are agreed on condemning internet censorship except for very specific reasons of the kind I have mentioned above. Indeed in the US the U.S. Supreme Court Reno v. ACLU in 1996 established the boundaries of permissible interference very clearly. But it cannot and should not in my view be a lawless zone where anything goes.
So to conclude there is no absolute equilibrium in the protection for freedom of expression. Legislation over matters such as libel, privacy or national security may change over the years.
The hall mark of autocratic societies is lack of a free media. Strong democracies however depend on a broad consensus of what the core rights of expression are. There may be arguments at the margin especially in the face of new media and new threats but we all have a responsibility for ensuring that in democratic countries in particular the core principles are well understand and we ensure they are vigorously defended.