Astonishingly. it seems that the controversial provisions of the Serious Organised Crime and Police Act 2005 which impose a protest restriction zone around Parliament, and which were brought in, supposedly against the lone "peace camp" protestor Brian Haw, may not actually apply to him at all, but they will apply to all the rest of us !
This is because, in their haste to get the Act onto the statute books, "on the nod" during the undemocratic "wash-up" process, where backroom deals were made by the political parties, at the end of the last session of Parliament. This meant that there was no proper scrutiny of the sections of the Act which deal with demonstrations in the vicinity of Parliament.
Serious Organised Crime and Police Act 2005 133 Notice of demonstrations in designated area
"(4) The notice must state-(a) the date and time when the demonstration is to start,
(b) the place where it is to be carried on,
(c) how long it is to last,
(d) whether it is to be carried on by a person by himself or not,
(e) the name and address of the person giving the notice."
However Brian Haw's continuous daily protest has been ongoing for the last four years.. Similarly the weekly Wednesday Voices in the wilderness UK Global Women's Strike protest has being ongoing for the last two and half years.
Therefore, the argument goes, Section 133 of the Act does not apply to him, since his is an existing, ongoing protest or demonstration, which started over four years ago and the Act only deals with demonstrations with a future start date or time after 1st July 2005.
If this argument is true, then, unless someone else starts an ongoing demonstration in Parliament Square or in the rest of the Designated Area, before midnight tonight, 30 June 2005, it could be that only Brian Haw will be exempt from the need to apply in writing before any, as yet unclearly defined "demonstration" and any restrictions imposed on all the rest of us !
There is nothing in the Act which allows for retrospective powers dealing with a demonstration which started in the past. The offence created in Section 132
"is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2)."
clearly rules out any start of demonstration in the past - not even the Home Office can torture the English language to make the present and future tenses also include the dim and distant past. To do so, would criminalise every single demonstrator who has ever demonstrated within the Designated Area, back throughout history, which is clearly ridiculous and unjust.
"(o) section 132(7) (demonstrating without authorisation in designated area);(p) section 133 (notice of demonstrations in designated area) for the purpose of giving notice of a demonstration in the designated area which is due to start or continue on or after 1st August 2005;
(q) section 134(1) to (6), (9) and (10) (authorisation of demonstrations in designated area);
(r) section 138 (the designated area);"
This Statutory Instrument brings into force start of various clauses of the Serious Organuised Crime and Police Bill 2005.
Note the use of the word "continue" in paragraph (p) which brings Clause 133 into force. Surely one word in a Stututory Instrument, cannot change the wording "on the face of the Act" ? Surely any Order must work within the wording of the Act itself, and cannot arbirarily extend the powers of the Act into the past and make it retrospective ?
This is going to be an interesting point for learned Judges to ponder
The Explantory Note to the Statutory Instrument 2005 No. 1537 - The Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005
explains the effect of both of these Statutory Instruments together:
"The provisions relating to the procedure for giving notice of a demonstration and obtaining an authorisation come into force on 1st July 2005. The remaining provisions will come into force on 1st August 2005."
Obviously we are not lawyers, but there does seem to be a reasonable case for saying that the Home Office have, yet again, slipped up in their draughting of a rushed Act of Parliament, which appears to leave a loophole for the supposed prime target of the Act to use to his advantage.
Any legal opinions on this out there in the blogosphere ?
Fantastic and hilarious. Hope it works out in Haw's favour.
Don't want to put a downer on all this - it would be fantastic if it were true, but it might be worth getting a lawyer to look at sections dealing with making orders under the Act; particularly Section 178(10), which says "The Secretary of State may by order make such provision as he considers appropriate for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act."
I think it was under the powers conferred on him under that section that Clarke introduced the order which says
"Section 4. (2) The references in sections 132(1) (demonstrating without authorisation in a designated area) and 133(2) (notice of demonstrations in a designated area) of the Act to a demonstration starting are to take effect as if they were references to demonstrations starting or continuing on or after 1st August 2005."
http://www.opsi.gov.uk/si/si2005/20051521.htm#n12
Also have a look at sections 172 and 173 of the original act.
Finally it might be worth having a look at provisions of the Human Rights Act 1998, particulary Section 3:
"3. - (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
Particulary interesting, actually, under the HRA is the next bit, which reads:
"(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."
http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3
Not in particular section C. It would tend to suggest that if the secondary legislation (ie the Order) is contrary to the provisions of the HRA (which it would quite obviously seem to be), and there is nothing in the primary legislation that prevents its repeal, then that secondary legislation would be "incompatible"! Unfortunately, I don't think that really means anything, because the court ruling neither affects the "validity, continuing operation or enforcement of the provision", nor is it "binding on the parties to the proceedings in which it is made".
Certainly worth a look! Such a ruling, if nothing else, could be fairly damaging to the government.
By the way, I'm not a lawyer so don't rely on anything I've said - just some observations.
I do not think that these sections of the Act are clear even for lawyers or the Metropolitan Police.
I feel that the laws of the United Kingdom should be written in clear language that most people can understand - this Act, and many others fails to do that.
What exactly is a "demonstration" ? The Act excludes processions, marches along the roads which block traffic etc., and exempts Trades Union picket lines etc. which are already covered by other laws and already require police permission.
Can a policeman arbitrarily decide to arrest you if you are wearing a T-shirt or a badge or a rubber wristband with a "political" slogan on it within the over large Designated Area, since you are holding a "one person demonstration" without prior permission ?
Nobody seems to know, or they are keeping the decision secret if they do.
Even if Brian Haw can make use of this loophole, it does nothing for all the rest of us who are having our rights curtailed.
I agree; it's an unclear act and the word "demonstration" is totally undefined.
One point: given the ridiculous number of conditions that can be imposed on anyone under this Act, it's also possible to get round most of those by using the Public Order Act 1986, whereby you must still deliver a notice to the Police, but there is no minimum time period - simply "as soon as is reasonably practicable". The only conditions that can be imposed on Assemblies are:
a) the numbers of people who may take part,
b) the location of the assembly, and
c) its maximum duration.
Still not very good but at least it gives you a bit more room than this new Act.
Regarding arbitrary arrest, no I don't think so. The police have to prove that you knowingly fail to comply with any conditions.
Finally one more point: is it possible to make a very broad notice so that it would allow anybody with a copy of that notice to demonstrate in the area? For example, if one person were to hand a notice to a police station every day, allowing, say, 100,000 people to demonstrate and then post the response on a website, would that work?
The section dealing with "demonstrations in the vicinity of Parliamnet" specifically says
http://www.opsi.gov.uk/acts/acts2005/50015--l.htm#136
" (5) A constable in uniform may arrest without warrant anyone he reasonably believes is committing an offence mentioned in subsections (1) to (4).
This subsection ceases to have effect on the coming into force of section 110."
Section 110 is the controversial extension of the powers of arrest for *all* offences, not just what were termed arrestable offences.
http://www.opsi.gov.uk/acts/acts2005/50015--k.htm#110
So it is all down to the opinion of the policeman on the street as to whether he believes he has reasonable suspicion or not, and down to the opinion of the arrestee, whether this seems arbitrary or not.
Remember that nowadays, an arrest leads to you being photographed, fingerprinted (10 fingers and both palms if you have them) and a DNA sample being taken and processed as a "DNA fingerprint", all of which gets retained forever, even if you are not charged with anything , the charges are dropped or if you are found not guilty in court.
An Assembly used be 200 people when "rave music" was the bugbear, which went down to 20 people when various animal rights and anti-fox hunting demos were hyped up as thge major threat to society in the media.
Now with Anti Social Behavior Act Dispersal Zone Orders, a group or assembly is defined as 2 or more persons (a bit of doubt about wether that includes one heavily pregnant woman or not).
The Serious Organised Crime and Police Act now has the concept that even a single unarmed non-violent demonstrator can somehow constitute a threat to security etc.
"Finally one more point: is it possible to make a very broad notice so that it would allow anybody with a copy of that notice to demonstrate in the area? For example, if one person were to hand a notice to a police station every day, allowing, say, 100,000 people to demonstrate and then post the response on a website, would that work?"
We will soon find out, when the first applications go in on Friday 1st July, giving "6 clear days" notice of a demonstration i.e. starting July 7th.
It may be even be possible to register for a "protest permit" valid for the rest of your life, this would still be wrong in principle, but it might be worth investigating as a practical measure.
Obviously then the Commissioner could then impose any "conditions" and in order to inform you of those, either your postal address details, or email address or facsimile number would have to be kept up to date, or alternatively, some form of public access website where you could look up the latest temporary restrictions might be feasible e.g. during the State Opening of Parliament etc.
Sorry yeah you're right I think I must have been looking at something else - probably about charging. So yeah, that would be arbitrary.
Is it true that the zones won't actually be enforced until 1st August?
I reckon a website that handed out daily permits for the right to protest (while sending a notice every day to the Met) might be a good idea. It would firstly allow anyone to protest at any time (except for any restrictions imposed), and it would make a complete mockery of the system.
It appears that you can ONLY inform the Commisssioner of a "notice" for a "demonstration" in writing either by recorded delivery post or by having it handed in to any Metropolitan Police Station.
The Act allows for the Commissioner's replies to the "notice", and any Conditions he may impose to be via facsimile transmission and/or email
The requirement for prior notification came into force today, 1st of July 2005, and the rest of the provisions i.e. the power to impose or vary Conditions, the restrictions on the use of loudspeakers etc. comes into force on 1st August.
The system, such as it is, is already a mockery, and looks to be a lot of extra work for the Police (who really should be concentrating on more important matters), trying to determine who has prior permission, under what conditions etc. and who does not.
I've thought of another possibility. If the general notice isn't possible, then couldn't you send one recorded delivery parcel with 365 individual letters (one for every day of the year)?? This would equally test the system, and further expose the absurd bureaucracy of this draconian, badly thought-out law. The SOCA doesn't appear to set a maximum amount of time to notify the police, so would that work?
I'm in Nepal at the moment and I just heard about Brian Haw's attempt to challenge the law. I was thinking earlier (before reading about that) that he might be able to challenge it under the Human Rights Act on the grounds that, while the original primary legislation doesn't affect his rights under the HRA because of its poor wording, a court decision can't affect its validity. However the HRA does look like it can declare secondary legislation invalid if it's in violation of the HRA (and it looks like the order that you pointed out does affect Brian Haw's rights).
Anyway, I hope it all goes well.
Cheers
Mark
More information on this topic is available at
http://ParliamentProtest.org.uk